Codification www.lawtool.net To provide definite laws to the International Courts. National Courts. and Tribunals and to stimulate the willingness of States to submit International disputes, codification gained momentum. The idea of codification first came from Bentharn. The declaration of rights of Nations--of 1792 of France was the first attempt. Abhe Gregorie drafted 21 articles for this purpose. However, the convention was not a success. The first successful attempt was made at the First Hague Conference convened by Emperor Nicholas II of Russa in 1899, This showed the possibility of codification. The conference .codified inter alia : , i) Pacific settlement of disputes : and ii) Law and custom of war on land. The second Hague Conference of 1907 passed 13 conventions. They relate to Maritime Navigation, rules of war. Neutrality and opening of Hostilities, etc., A parallel development in the ‘field was the peace Treaty of 1919. It provided for the League of Nations and the ILO and PCIJ. The League provided for an International Law Commission consisting of 15 .Jurists. Subjects which were ripe for codification were selected by them. Codification relating to nationality, territorial waters, privileges and immunities of Ambassadors etc., were successfully made. The convention declared the renunciation of war as an instrument of National Policy (1929). The codification of International Law conference met in 1930 provided for conflict of Nationality laws; and Statelessness. etc. Under the United Nations, the International Law Commission is charged with the duty of codification and progressive development of International law. There are now 34, members. Since 1948, the International Law Commission has conducted its deliberations and submitted its drafts. Codification has been made on many main topics .e.g., Privileges and Immunities of Ambassadors. & of consuls and treaty law, etc. , The Commission has endeavored to give clear expression where there is a common measure of agreement or uniform practice. Codification has been viewed as systemization & codification of principles agreed upon and (ii) agreement on hitherto divergent issues and practices.. Codification exposed the States to dangers of unanimity Rule. It also showed that certain States did not like to commit in writing what they were actually practicing. Further, uniformity in opinion was not available and lengthy preparations and discussions were inevitable. The earl i er Conferences coul d not , possi blyachi eve much: The International Law Commission under the U.N. is almost free from the dangers stated above. Its work is commendable and laudable Progressive development means the preparation of draft convention on subjects which are not yet regulated or developed- Much work is done by the International Law Commission, e.g. Geneva conventions on the-Law of the Sea 1958. Vienna Convention on Diplomatic Relations 1961, Vienna Convention on the law of Treaties 1969 etc., The modern trend is, towards the speedier method of international law making process: i.e. Treaties bi and multilateral This is called international legislation. The role of these law making treaties is considerable. The contributions of International court of Arbitration, P.Q.I.J. & I.C.J. are of great significance Apart from these, the part played by International.Law.Commission.. in formulating treaty-drafts, in respect of volume & area covered, are phenomenal. The processes in codification & progressive development of International law are confirming .on and have become part of law making in the field' of. International law.

STATES AS SUBJECTS www.lawtool.net Subjects of International Law. Primarily, International Law is concerned with the rights duties and interests of States. As'International law 'is between or among the States, some jurists hold the view. that 'only the State* are the subjects of International law'. Subjects of International Law : 1. Incumbent of International rights and duties : 2. Possessor of procedural privileges of suing in International Courts and Tribunals : 3. Possessor of interests under International law. 4. Capacity to enter into treaties & International obligations. EXCEPTIONS : i) Though it. is the conduct of the state that is regulated by international law, in the ultimate analysis it is the conduct of the individuals that is regulated. As Westlake opines 'The rights & duties of the States are ultimately the rights and duties of-men. that compose them. Hence, though the States are normal subjects, they may endow the individuals with the International rights & duties and to that extent make them subjects of International law. ii) Pirates who commit Piracy Jure Gentium on the high seas are liable to punishment under International law. To that extent they are the subjects of International law,, but some jurists call them as objects. iii) Slaves : International convention has provides for the abolition of slavery. The convention also provides for the rights of the,slaves. They enjoy these rights as subjects of International law. iv) Belligerents : are subject to International rights and duties in respect of war. Hence, they are subjects of International law. e.g. Geneva Conventions on the Prisoners of war apply to them.. v) Individuals : May be allowed to appear before the International tribunals, like ICJ. In Danzsig officials case, the ICJ. has opined that individuals may be conferred with certain rights by States. vi) War Criminals : The Nirenberg and Tokyo tri al s aft er II World War showed that individuals could be tried for International crimes like crimes against peace, crimes against humanity and crimes under the law of War. Eichmann’s Trial fortifies the above position. The Nuremberg- Trial rightly stated that crimes against International law are committed by men not by abstract entities (States) and only by punishing individuals who commit crimes, can the provisions of International, law be enforced. vii) Genocide Convention : This provi des for punishment of those who commit genocide, the punishment may be awarded by National or International courts. viii) European Commission for Human Rights has been empowered to investigate and to report on violation of' human rights by the Member States. The Lawless case decided by the European Court of Human Rights is an example. ix) United Nations : The I. C. J. in the Reparations case held that the United Nations is an International person. It is also 'declared as the subject of International law, capable of International rights and obligations. x) The Specialised Agencies like I.L.O., U.P.U., are International persons and hence the subject s of International law as per their Constitutions. xi) Regional Arrangements : Like the NATO., SEATO., etc. are also endowed with International personality. Hence they are also subjects of International law in a limited . These factors evidently prove that apart from Sovereign States, there are others which are also the subjects though ' .in a limited sense. It is no doubt true that States are mainly the subjects, as the capacity to follow International obligations, is on them primarily.

P.D. Gupta v.Rammurthi (AIR 1998 SC 283) www.lawtool.net Fact of the case:- One Mr. Krishnan died on 5-6-1980. His sister Vidyawati filed a suit for decleration of title in her favour for certain properties of Mr. Krishnan, Ramamurthi and others resisted the suit claiming title in their favour. P.D.Gupta was the Advocate of Vidyawati. When the suit was pending P.D. Gupta purchased part of the disputed property for Rs.18000 and sold it for 34000 immediately. Mr. ramamurthi filed a complaint against P.D.Gupta before the Delhi Bar Council alleging professional misconduct. The main allegation is that he has purchased the part of the disputed property from his client during the pendency of the suit. Since the enquiry was not completed within one year the matter is transferred to the Bar Council of India. After hearing both the parties, the Bar Council of India passed an order suspending him from the practice for a period of one year. The court held that a shadow of undue influence is present when an Advocate buys property of his own client. Against this order P.D. Gupta filed an appeal before the Supreme court. In the appeal his main contention was that his client or her legal heirs has not filed any complaint regarding professional misconduct, and the enquiry conducted based on the complaint by some other person is wrong. The Supreme Court did not accept this argument and passed the following orders. 1. Any person shall file a complaint regarding professional misconduct against an Advocate. 2. Bar council shall enquire into the allegation of professional misconduct, though the complaint is filed by a stranger, because, the Bar council is concerned with the conduct of Advocates. 3. The order passed by the Bar Council of India is confirmed. In P.D. Gupta v. Ram Murti and Another22 the Bar Council of India was of the view that the conduct of P.D. Gupta in the above circumstances was unbecoming of professional ethics and conduct of an Advocate. The Bar Council observed in this Context as follows: “It is an acknowledge fact that a lawyer conducting the case of his client, he has a commanding status and exert influence on his client. As a member of the Bar it is common knowledge that lawyers have started contracting with the client and enter into bargains that in case of success he will share the result. A number of instances have been found in the cases of Motor Accident Claims. No doubt, there is no bar for a lawyer to purchase property but on account of common prudence specially a law knowing person will never prefer to purchase the property, the title of which is under doubt” The Supreme Court of India observed that bar council of India, in the present case, has considered all the relevant circumstances and has rightly come to the conclusion that Shri P.D. Gupta is guilty of miscount and so he is suspended from practice for one year.

Fact of the case -Gupta was practicing Advocate at Gaziabad . He was appearing for the decree-hold in an execution case between Atma Ram manak Chand v.Shriram in the Ghaziabad court.The degree holder has filed a complaint in the State Bar Council against his Advocate (Gupta) alleging the following professional misconduct. 1. He has colluded with the judgement debtor and accepted Rs. 1500 out of the total decreed amount and allowed time for the payment of the remaining balance. 2. The amount so received is not given to the degree holder. 3. He has helped the judgement Debtor to get the execution stayed by the High Court. 4. When he was Acting as a standing counsel for the railways ,he drafted the notice under S.80.C.P.C to be served to the railways on behalf of M/s. Agerwal traders who was the compliment against the Railways. This is a serious professional misconduct. The draft prepared by his own handwriting was produced before the disciplinary committee. Gupta denied all the allegations and informed that he was holding the amount of Rs.1500 as trustee on behalf of his client. Since the enquiry was not completed within one year the matter was transferred to the Bar Council of India. The Bar council of India has found the appellant guilty of serious professional misconduct and passed an order suspending him from the practice for a period of one year. Gupta challenged this order before the Supreme court. The Supreme court passed the following orders. 1. It is not advisable for the Disciplinary Committee to base its conclusion purely on the basis of its own comparison of the hand writing of Gupta with the alleged draft prepared by him. The court held that the charge of professional misconduct is quasi criminal in nature requires proof beyond reasonable doubt. 2. Addressing a letter to the counsel of the opposite party (judgement debtor) in the execution proceedings amounts to professional misconduct. 3. Holding the money with him which he has received in the execution proceedings without any sufficient reason amounts to professional misconduct. 4. For this misconduct suspending him from practice for 1 year is too much , So the Bar Council of India’s order is set aside and he was reprimanded with strong words.

V.P.Kumar Velu vs State Bar Council of India www.lawtool.net Fact of the case:- The appellant was appointed as city government pleader in all the Civil courts constituted in Madras other than the High Court of Madras, in October 1978 .The commission andsecretary of Tamil nadu filed a complaint against appellan before the disciplinary committee of the Bar Council of Tamil nadu was in respect of Suite Number 400/1978 on the file of the City Civil Court at Madras. The government pleader was instructed to appear on behalf of the state government . in that case .The memo of appearance was filed by the previous government pleader. However when the Appellant was appointed government pleader, a fresh memo of parties was not filed on his behalf nor the papers were put before him . As a result , the suit was decreed ex Parte against the state. In another case pertaining the appellant, a suit was filed by the Travancore textile Limited against the state of Tamilnadu relating to the lease of land forming part of a Channel. plaintiff had prayed for a declaration that the annual rent of Rs 3609.66 as also the municipal taxes levied were illegal. Plaintiff had also made a prayer of the refund of ₹ 25,575.40 with interest and for a further declaration that he need not to pay any rent after 30 June 1974 the complainant alleged that as a result of the gross negligence on the part of the appellant the government of Tamilnadu had suffered substantial loss. The appellant contended that since the office staff had not put the paper of this case before him, it was through inadvertence that the suit was decreed ex Parte, The bar council of India had noted that at the time when and application for setting aside the order was filed , the applicant the applicant must have known the pendency of the case and serious consequences that could follow,If the order for payment of cost were not complied with. The bar council held that for this lapse the appellant/ applicant could not raise the plea that staff was negligent. The bar council stated that the office staff of the appellant was also responsible for misleading the applicant and keeping him in dark. In another complaint it was alleged that the applicant did not attend to the case and an ex Parte decree was passed. This complaint was in respect of a suit filed by an employee of the Directorate of Education of state of Tamilnadu challenging his date of birth. Summons was forwarded to the appellant along with a letter informing him the date of hearing. There was an endorsement made by the office of government pleader on that letter. Another letter was received by the government pleader on which An endorsement was made remarks/written statement to be prepared ". However, no memorandum for reappearance was file in that suit on behalf of the state of Tamilnadu and an ex Parte decree was passed in that suit. In this respect, the applicant contended that the office had not put up this papers before him and therefore there had been Lapse in attending the case. The bar council of India accepted that there was no deliberate lapse on the part of the appellant. However he was held guilty of constructive negligence by the bar council of India and it is reprimanded him for time lapse . In Appeal, the supreme court held that there was no finding of any Mala fides on the part of the appellant or any deliberate inaction on his part in not attending to the two cases. There was failure on his part to discharge his duties towards his client but it was not deliberate but on account of heavy pressure of work and lack of diligence on the part of his stuff. The negligence on his part was without moral turpitude or delinquency and therefore he was not held guilty of professional misconduct. The supreme court observed -Whether negligence will amount to professional misconduct will depend upon the fact of each case. Gross negligence in the discharge of partakes of shades of delinquency and would undoubtedly amount to professional misconduct. But negligence without moral turpitude or delinquency may not amount to professional misconduct ".The supreme court however observed that the appellant was rightly held guilty of negligence but in the absence of any moral turpitude or delinquency on his part, the finding of the bar council of India that his conduct in the facts and circumstances of the case amounted to professional misconduct could not be suited sustained.

Pandurang Dattatreya Khandekar vs Bar Council of India and others AIR,1984 www.lawtool.net Fact of the case : A group of 12 advocate practicing in two courts of S.D. Ms in the collectorate of Pune are the complainants both the state bar council and Bar Council of Delhi through its disciplinary committee found the appellant and one Agvane Guilty of giving improper legal advice and held the charge of professional misconduct provided the and suspended the appellant for a period of 4 months and Agvane for a period of 2 months therefrom.As regard the lenient punishment as stated above, the disciplinary committee observed: " we take into consideration the age of the Advocate the family they have to maintain, the environment in which they practice and the practice and the standard which is maintained in such an environment is not very high as the bar council Association rules certify toutism and provide for toutism which could be unthinkable anywhere else ." In appeal , the supreme court observed that there is a difference between the Giving of improper advice and giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the on the part of legal practitioner in the exercise of profession does not amount to professional misconduct; into that offence there must enter the element of professional misconduct element of moral delinquency. of that there is no suggestion here, and there is no case to investigate, and that no reflection adverse to his professional honour.

Hikmat Alikhan v.Ishwar Prasad Arya www.lawtool.net Hikmat Alikhan v.Ishwar Prasad Arya (AIR 1977 SC 864) The fact of the case -Ishwar Prasad Arya was an Advocate practicing in Badann, U.P. He stabed his opponent with a knife for that he has convicted for 3 years of rigorous imprisonment. On appeal the High court also confirmed thepunishment. Thereafter, by using a forged letter of the Governor asking the court to suspend his sentence under Art. 161 of the constitution he got his conviction suspended and he was released. Later the sessions Judge found the letter as forged one and he lodged a complaint with the Bar Council of U.P. for necessary action against him. The State Bar Council debarred him from practice for 2 years. On appeal the Bar Council of India set aside this order on the ground that there is no clear evidence to show that the Advocate himself has prepared that forged letter. Subsequently by taking into account of the bad conduct of the Advocate ie. Conviction for the offence under S.307 of I.P.C and his name being entered by the police in a register which contains the list of persons with bad character he was debarred for the practice for a period of 3 years by the State Bar Council. On appeal this order was also set aside by the Bar Council of India because it is interconnected with the earlier matter. Hikmit Ali Khan preferred an appeal before Supreme Court against this order. The Supreme court held that the second order of the State Bar Council was based on totally a different ground not connected with the grounds of the first order and the Bar Council of India was eronious in setting aside the second order of the U.P. Bar Council. Further Supreme court held that the gravity of the misconduct committed by him is so serious and the punishment of suspending him from practice for 3 years is not sufficient and ordered the removal of his name from the roll of Advocates.

Agenda 21 www.lawtool.net Agenda 21 was a major outcome of the summit. It is a blueprint for ecologically safe development up to 2000 and beyond. It covers issues like transfer of environment-friendly technology, environmental awareness, and integrated approach to land resource use, checking desertification and peaceful use of nuclear energy, but makes no mention of who would bear the costs. Agenda 21 is grouped the seven central themes - the quality of life on earth, efficient use of earth's natural resources, the protection of global the management of human settlements, chemicals and management of waste, sustainable economic growth, and implementation. UN panel on the environment: It was decided to establish a new panel within the UN to assess the environmental impact of the lending by the World Bank and the International Monetary Fund, and to oversee the implementation of Agenda 21 itself. It was also decided to set up a Sustainable Development Commission to monitor the implementation of Agenda 21. Commons, Biodiversity Treaty: This is a treaty to protect the endangered species of the world. It was signed by 153 nations and took effect on December 29, 1993, after ratification. It aims to establish a global partnership for the protection of natural resources with the recognition of the sovereign rights of States over their resources. It is a legally binding agreement.

SUSTAINABALE DEVELOPMENT www.lawtool.net In the name of developing the world, human is slowly destroying the entire environment. Is this really the evolution of the earth or not? it's up to you to decide. Ignoring the environment while carrying out development may result in some short-term benefits, but in the long run, it is counter-productive and actually anti-development. Development without concern for the environment leads to great human suffering, higher poverty, and oppression. Humans have destabilized the environment with indiscriminate deforestation, mineral exploitation, industrialization and urbanization, which has created wastelands, polluted rivers and the seas, and caused problems like global warming and acid rain. It has, therefore, become necessary to ensure that measures to protect the environment are taken when development is carried out, thereby achieving sustainable development. The growth in world population and the endless exploitation of nature by human beings has made the concept extremely important in the present age. Meaning and concept The WCE report of 1987 defines sustainable development as: “Sustainable development is development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.” Another definition is : “ Economic progress in which the quantity and quality of stocks of natural resources ( like forests ) and the integrity of bio - geo - chemical cycles ( like climate ) are sustained and passed on , unimpaired , to future generations . " Sustainable development is about policy and approach rather than a prescription or remedial measures. The Brundtland Report of 1987 defines sustainable development thus: “Sustainability is a characteristic or state that can be maintained indefinitely, While development is the increasing capacity to meet human needs and improve the quality of human life; sustainable development, therefore, is improving the quality of human life while living within the carrying capacity of the supporting ecosystems. “Economic growth and sustainability are not conflicting concepts, but complement each other. Economic progress emphasizes qualitative as well as quantitative progress in the context of clean and qualitative improvement to socio - economic systems. Quantitative improvements enable us to meet the essential needs of the present generation without compromising the ability of future generations to meet their own needs. Qualitative improvements reflect our capacity to convert the use of Phys resources into better services for satisfying human wants.

Social Legal Issue Involved Land Acquisition www.lawtool.net The Land is a free gift of the nature and it is an ample source of creation, sustenance and destruction for living and non-living things. It is the prime factor amongst the four factors of production namely land, labour, capital, and organization or entrepreneurship. The progress and prosperity of any country largely depends upon the geographical nature, yielding quality, intrinsic value and the extent of its territory. Land is a symbol of social status, greater extent of holding the land is higher will be the social status, which is universal truth. There cannot be any land without an owner it is accepted fact that the king or the sovereign authority (in the modern sense, the State or Government) is the real owner of all the lands existing under his or its regime. During ancient period king was also considered to be the true representative of God. One of the peculiar characteristics of land is of its ownership which cannot be carried away physically inasmuch as it is an immovable property. Ownership is a concept and friction. It cannot be seen but conceived from the enjoyment of property by the holder of it to the total exclusion of others. The definition of ownership differs from one legal system to other legal system. Ownership is sometimes regarded as a trinity of rights which in Latin tag means iusutendi, fruend, abutendi i.e., a right of using or profiting from land use means exclusive use. The primary owner of land is the king or in the modern sense, the elected government in power. As such the right of ownership will always remain with the king or with the elected government. Notwithstanding the fact that the land is transferred to individual for agricultural or their purpose by the king or the government, ownership in the land vest always in the king or the government, as the case may be, therefore when such land is required for "public purpose” government can acquire. In time of war or insurrection the proper authorities may possess and hold any part of the territory for common safety; and in time of peace the legislature may authorise to appropriate the same for public purpose. This is simply named as doctrine of eminent domain. Doctrine of "eminent domain", in its general connotation means supreme power of the king or the government under which the king or the state can appropriate private property for its own use without owner's consent. Government most commonly use the power of eminent domain when acquisition of real property is necessary for completion of public projects such as making roads, construing dams and irrigation canals, establishing manufacturing industry and for urban development even though owner of the required property is unwilling to negotiate the price for its sale. Using of domain power or sovereign power of the state for compulsory acquisition of land is only against private property and it cannot be invoked against crown land or government land.

THE CODE OF CRIMINAL PROCEDURE, 1973 CRIMINAL COURTS www.lawtool.net Classes of Criminal Courts: Sn.6. Cr.P.C. Below the High Court, the following Criminal Courts are constituted. (i) Sessions Court (ii) I class Judicial Magistrate, (iii) II Class Judicial Magistrate (iv) Executive Magistrate. The III class Magistrates have been abolished. The Judicial Magistrates and Executive Magistrates are given different and distinct functions and powers under the Cr.P.C. Executive Magistrates: The State Government may appoint Executive Magistrates in each district and one of them as District Magistrate and if need be another as Additional District Magistrate. A Commissioner of Police may be vested with the powers of an Executive Magistrate. Executive Magistrates have jurisdiction in various cases: (i) Sn.107 Order to execute bond for keeping peace, (ii) Sn. 129 Dispersal of assembly by use of Civil force, (iii) Sn.144 Urgent cases of Nuisance etc. (iv) Sn.145 Disputes as to Possession of immovable property. Public Prosecutor and A.P.P. The State Government has the power under Cr.P.C. to appoint Public Prosecutors at the High Court level and at district level is Consultation with the High Court and the Sessions Court.The District Magistrate prepares a panel of names who are fit to be appointed as Public Prosecutors. The minimum qualifications is at least 7 years practice as an Advocate. The Public Prosecutor is a public servant. Asst. Public Prosecutors are appointed by State Govt. in each district for conducting prosecution in Magistrates Courts. No Public Officer below the rank of a Police Inspector and who has made investigation in the case can be appointed as A.P.P.  Office of the A.P.P. is the creation of the new Cr.P.C. A.P.P. may appear before Magistrates court. He is not under the control of the Police Department.

THE CODE OF CRIMINAL PROCEDURE, 1973 DOUBLE JEOPARDY www.lawtool.net Double Jeopardy : Section .300 Cr.P.C. One fundamental principle of Criminal Law is that no person who has been accused of an offence should be prosecuted and punished for the same offence more than once. This principle is contained in Art.20(2) Of the Constitution and also in S.300 Cr.P.C.The origin of this is in the English Law 'Nemo debet B is Vexari' (no one shall be vexed twice). This has two coordinal rules, namely: (a) Autre fois acquit (previous acquittal) (b) Autre fois convict (previous conviction) According to this if a person has been prosecuted and either convicted or acquitted, then the accused should not be tried again by any Court in India, for the same offence. In Venkata Raman Vs. Union of India, Venkataraman was subjected to a departmental inquiry and was dismissed from Central Government services on grounds of bribery. The police arrested him under 161IPC. for bribery. He contended that he should not be tried again. The Supreme Court held that the departmental proceedings was not a prosecution and therefore he cannot get the benefit.  In Maqbul Hussain Vs. State of Bombay-M was subject to an inquiry by the custom authorities who confiscated gold from him  and also fined him. Held Custom proceedings were not prosecutions.According to the Supreme Court, prosecution and punishment must be read in a conjunctive sense. That is, if a person is prosecuted and punished, he should not be tried again. Hence if a person is prosecuted and acquitted, the Constitution is silent about this. But Sn.300 Cr.P.C. provides that if a person is prosecuted and convicted or acquitted he should not be tried again for the same offence. Exceptions: Sn.300 provides for the following exceptions: (i) If the lower court has no jurisdiction at all, then the rule does not apply. The accused can be tried again. (ii) If a person is tried for a distinct and separate offense, then the rule does not apply and, with the consent of the State Government, he may be tried for a separate charge which he could have been tried in the former trial. Ex. (a) Servant 'A' is tried on a charge of theft and is acquitted. He cannot be tried again for theft or criminal breach of trust. (b) A is tried on a charge of murder and acquitted. It appears that there was robbery also before murder. A may be tried for robbery. (iii) If a person is tried for an offence but subsequently if it turns out that the consequences of the act resulted in a different offence a together, the person may be tried. Ex. (a) A causes grievous hurt and is convicted. The injured son dies in the hospital. A may be tried for culpable homicide. (b) A is tired for culpable homicide and convicted. HE cannot tried again on the same facts for murder. Scope: Double jeopardy benefit does not apply to execution proceedings. What is barred is the second prosecution for the same offence on the same facts. (Sn.22l)

TOPIC -RELATED •GENERAL RULE OF INTERPRETATION OF STATUTE •RULE OF LITERAL CONSTRUCTION •GOLDEN RULE OF CONSTRUCTION •RULE OF HAYDON'S CASE( MISCHIEF RULE ) GENERAL RULE OF INTERPRETATION OF STATUTE The rule follows a very simple premise that every statute has a purpose and intent as per law and should be read as a whole. The interpretation consistent of all the provisions of the statute should be adopted. ... The rule of harmonious construction is the thumb rule to the interpretation of any statute. •Duty of the judicature is to discover and act upon the true intention of the legislature. •Judges are not at liberty to add or take from or modify the letter of the law •True sentenia legis is not completely or correctly expressed by it •Loard Atkinson:- the word of the statute as puts it must be interpreted in their ordinary grammatical sense. • Meaning of the word is plain. RULE OF LITERAL CONSTRUCTION: it is the cardinal rule of construction that a statute must be construed literally and grammatically giving the word their ordinary and natural meaning. 2. Statute must be construed in its grammatical sense. 3. Meaning without reference to cases 4. Meaning without reference to cases 5. Phraseology of a statute is clear and unambiguous. 6.Case law related :-kanai lal sur vs paramnidhi sadhukhan . GOLDEN RULE OF CONSTRUCTION The golden rule as a modification of the literal rule The Golden Rule of Construction is a doctrine, which must be applied with great care, remembering that judges may be fallible in this question of absurdity and in any event it must not be applied so as to result in twisting language into a meaning, which it cannot bear. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain, and unambiguous, then the courts are bound to give effect to that meaning, irrespective of the consequences. Maxwell describes the so-called golden rule as a modification of the literal rule. Interpretation leads to certain absurdity or unreasonable results, it is permissible to interpret the provision of the statute in a manner so as to lead to a reasonably practicable result. Literal construction is not prohibited if it better expresses the intention of the legislature.the language of the statute may be varied or modified to avoid absurdity or repugnance where the grammatical construction leads to such absurdity or anomaly (irregularity ) Lee v. Knapp 1967 Adler v. George RULE OF HAYDON'S CASE( MISCHIEF RULE ) Lord coke s formulation of the rule in Heydon's case in 1584 is also known as mischief rules and has stood the test of the time very well. This rule has been approved by our supreme court in a number of cases as guidelines to determine the true intention of the legislature. The Mischief Rule is a certain rule that judges can apply in statutory interpretation in order to discover Parliament’s intention. The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament’s intent. Rule Of Literal Construction Rule of the literal construction is a cardinal rule of construction that a statute must be construed literally and grammatically Giving the words their ordinary and natural meaning .he intention statute must be construed in its grammatical sense. .meaning without reference to the case.if the phraseology of a statute is clear and unambiguous and capable of one and only one interpretation. The first and primary rule of the construction is that the intention of the legislature must be found in the words used by the legislature itself. In Kanai Lal Sur Vs Paramnidhi Sadhukhan

Sources of Hindu Law www.lawtool.net Hindu Law is one of the oldest systems of personal law. Its sources are:- Veda Smriti Sadachara Sampada Priyamatmanaha. Evam Chalurvidam Prahuhu Sakshat Dharmasya lakshanam. i) Vedas ii) Smritis iii) Custom iv) Equity & Good Conscience are the four sources of Dharma v) Judicial precedents and vi) Legislation, are two additional sources. The concept of Dharma is of great protean significance. An excellent elaboration of it is found in the History of Dharma Sastras by Prof.. Kane (Vol. 1). English jurists also used the term. "Dharma",as this had wider significance and value than "Law". Vedas : The meaning is 'Revelation'. The earliest sacred book among the Hindus were called the Vedas. The main work of compilation was made by ' Vedavyasa'. It is he who classified the Vedas into Rigveda, Yajurveda, Samaveda & Atharvaveda. Each Veda in turn consists of SAMHITHS & BRAHMANAS. Samhita (Mantras) is a collection of Mantras. Mantra is the derivative of 'Man', which means 'to think'. These are thoughts that illumined the darkest regions and recesses of the human mind. There are millions of them. The mantras have been give theological exposition in the Brahmarias, Series of injections are provided, In later years collections of these became essential and were epitomized in the form of sutras (Thread). Smriti : This means that which is 'Remembered'. The dark unfathomed caves of Vedic ocean contained innumerable gems of the purest ray serene but only a few could dive down to bring them to the light of the day. Such gems were the distilled wisdom of the ages. But they were learnt by heart and were remembered. They were transferred by words, from generation to generation. Three divisions are of interest. Srauda sutras, Grithya sutras and Dharmasutras (Rituals, domestic ceremonies, and forensic law). The Dharmasutras were the legal maxims dealing with the law of the Government, of the people, and of the society. It was from these that Manu, Yajnavalkya, and others have drawn freely. The primary authors of the smritis are the great sages, like Angiras, Yama, Apasthamba, Brihaspati, Daksha, Gouthama, Vasista. Among the great works, Manu Smriti is of paramount authority. Whatever Manu said was medicine. It was a collection of the laws and also the theological and metaphysical speculation running to 1.8 divisions. Next in order comes Bhashyas-commentaries Yajnavalkya Smriti; and Narada smriti. There are also many other commentaries and digests. Commentaries on the code of Manu and Yajnvalkya smriti art illuminative. The most authoritative and celebrated of all are: the text; Mitakshara by VIJNANESWARA and Dayabagha JIMUTAVAHANA. These two Mitakshara and Dayabhaga are, in particular, commendable schools (called so by Colebrook) for the interpretation of Hindu Law, The Mimamsa rules of Jaimini are also some consequence. Other Bhashyas: Veeramitrodaya by Mitramisra, Vivade Ratnakara by Chandeswara, Smriti Chandrika by Devan, and Bhat Vyvashara Mayuka by Nilakanta, Kubera's Dattaka Chandrika (South India) Dattaka Mimamsa by Nanda Pandit (North, India). Custom : The third source is Sadachara, i.e., the usage of Virtuous men. It was not a written law. But it grew from the consent of all men. Custom as defined by Austin means the positive law enshined by Judicial recognition upon pre-existing custom. As per the word 'Sadachara' the practices of good men were considered as superior evidence of the prevalence of Dharma. In the Ramnad case (i.e., Collector of Madurai V. Muttu Ramalingam) it was held that 'Under the Hindu system, clear proof of usage would outweigh the written texts of law. In this case M was a Zamindar. In 1795, his property was taken over by the British, as he had waged war against the Govt. But the property was returned to his sister Rani Mangaleswari in 1803. She had no issues. She took Annaswami in adoption. He too had no issues, he took Ramaswamy in adoption. He too had no issues. When he died, his wife Rani Parvati took Muthu Ramalingam in adoption. This was rejected by Revenue Dept. as void. Rani Parvati filed a suit for declaration that the adoption was valid and the court decreed in her favor. The collector, appealed to the Privy Council. Held, taking adoption after the death of the husband, with the consent of the relatives was a custom in vogue in Madurai and this custom had been established. Hence, it upheld the adoption as valid. Custom must have a long usage, and must not be contrary to justice, equity and good conscience. It must be self-consistent and complete by itself. It must have been acted upon for a long time as was declared by the Supreme Court in Saraswathi Ammal Vs. Jagadambal. Custom may be local, Regional or peculiar to a family. If the above requisites are fulfilled, the courts recognize them as "law". Thus, this is an independent source of law. Equity and Good conscience : As a source of law this has no independent treatment. It is relative and dependent on the circumstances. Primarily this was the domain of the courts. Judicial Precedents : Though in point of time this is of recent origin, the contribution by the judiciary to the field of Hindu Law is commendable. A number of decisions of the courts are quoted and followed. Legislation : The final but an important source is legislation. Sweeping changes have been made by effecting changes to various statutory enactments. Innovations additions and changes have been made. The Caste Disabilities Removal Act of 1850, abolished the Law which penalised the renunciation of Hindu religion. The Hindu Widow's Remarriage Act legalised widow remarriages. Child Marriage Restraint Act 1929 made the child marriages punishable. Special Marriages Act 1954 provided for marriage by Registration. The recent statutes: The Hindu Marriage Act, the Hindu Adoptions and Maintenance Act, The Hindu Minority and G irdianship Act, The Hindu Succession Act, have revolutionised the old law in their respective areas. MITAKSHARA AND DAYABHAGA Differences: The two schools Mitakshara and Dayabhaga spring from the same source the ' Smriti'. Vignaneswara's commentary about the 10th century, applicable throughout the territory of India, came in the form of 'Mitakshara' (a treatise). Jimutavahana's commentary, the 'Dayabhaga' became operative in particular areas in India, namely, Bengal and Assam. The two systems may be compared to the Branches of a single tree, the Smriti. Mr. Cole-Brooke called them the Schools of Hindu law. Differences : Mithakshara 1. Heritage : Recognises, two classes of heritage-obstructed and non- obstructed (appratibanda daya and Saprathibandadaya.) 2. The right of the coparcener arises by birth only.This is the cornerstone of Mithakshara. 3.Recognises a coparcenary between the father and sons. Right to partition is recognised The Head of the family is the Kartha who may alinate property for legal necessity 4.Religious efficacy is not the guiding rule.The natureof sue- cession is by survivorship. Agnates are preferred to cognates. 5. The widow of a coparcener,enjoyed a limited estate for her life time. After her death the to succeed to her husbands share property reverted to the Reversioners (heirs of the husband). This has been abolished under Sn. Succession Act.1956. Differences : Dayabhaga 1. There is no such division. All property is considered obstructed, 2. The right does not arise by birth alone. His right arises on the death of his father. 3. Dayabhaga does not recognise such a coparcenary. The son has The no partition. The father is the absolute owner of the property and authorises to dispose of at his pleasure. 4. Religious efficacy is the ruling principle in finding out the order of succession, 5. Dayabhaga recognises the right of a widow in an undivided family if he dies without issue. She may in such cases enforce-a partition on her own accord. 14 of Hindu These are the major differences between these two schools though the source is "the smriti". Hindu Ancient Sanskrit texts have not used the word "Hindu". Hindu is derived from Indus' or v Sindu' and it denoted the people living east of the river Sindu. Etymologically Hindu means a person to whom "Meannes" is an offence. The meaning given by Tilak to "Hindu" wasaccepted by the courts. "A Hindu is a person who respects Vedas with devotion, considers road to salvation as varied, and realisation that plurality of "Gods" was the basic truth". In interpreting, the courts have put a liberal construction, to construe who a Hindu is. Hindu includes a Hindu by birth, by religion, by conversion or reconversion ; it also includes Virashivas, Lingayats, Brahmo, Arya and Prarthana Samajits, Buddhists, Jains and Sikhs. Statutory Definition : The four Acts: The Hindu Marriage Act, The Hindu Succession Act, The Minority and Guardianship Act and the Hindu Adoptions and Maintenance Act, have specified the persons who are govened by Hindu Law. The Hindu Law applies : i) to Hindus by birth and to Hindus by religion in any form. This includes Virashiva, Lingayats, and followers of Brahmo, Prarthana and Arya Samajists. ii) to any person who is a Buddhist, Jaina, or Sikh by religion. iii) to any person domiciled in India and who is not a Muslim, Christian, or Jew by religion; The presumption is that a person domiciled in India is a Hindu if he is not a Muslim, Christian, Parsi, Jew by religion. The Act in the Explanation further provides as follows: iv) The following persons are Hindus, Buddhists, Jains or Sikhs. a) Children (legitimate or illegitimate) of parents who are both Hindus, Buddhists, Jains or Sikhs. b) Children (legitimate or illegitimate) of parents one of whom is a Hindu, Buddhist, Jain or Sikh. c) Converts or re-converts to Hindu, Buddhist, Jaina or Sikh religion. v) The Acts shall apply to members of Schedules Tribes according to Notification by the Central Govt. vi) Conversion : According to Hindu Sastras "a Hindu is born, and, not made". But, this has been changed and a non-Hindu can become a Hindu by conversion. This is established in a series of cases. The courts have held that a formal ceremony is not necessary for conversion to Hinduism ; If the conversion is with bona fide intention, and the person has taken to a Hindu mode of life and has followed its usages and customs, or the community has approved of him he is a Hindu. If a child has been brought up as a Hindu, according to the usages and Customs of the Hindus, and, the community has approved of him, the child is a Hindu. No formal conversion is necessary. Leading Cases: In Perumal V. Ponnuswamy, the Supreme Court held that mere declaration by a person that he is a Hindu, will not convert him into Hinduism. The persons bonafide intention in his conversion to Hindu faith and his conduct as evidence thereof are sufficient. No formal ceremony is necessary. In Commissioner of Wealth Tax V Sridharan the Supreme Court has held that the son of a Hindu father and Christian mother (under Special Marriage Act), was a Hindu as the father had bonafide intention and had declared his family as a Hindu Undivided Family. Abraham V Abraham, the Privy Council decided that the petitioner was a Christian, and, hence Hindu Law was not applicable, Hindu Law does not apply to : i) Illegitimate child of a Hindu father by a Christian mother, brought up as Christian. ii) Hindu converted to Christianity, or to Muslim or Jewish parsi religion.

SOURCES OF HINDU LAW www.lawtool.net Source means “basis from which law is evolved”. Source of Iaw’ is a basis, which enables the courts to interpret law”. Keeton defines ‘sources “the material out of which law is eventually fashioned through tire activity of judges”. Hindu law is about 6000 years old and the study of the sources of Hindu Law is (the study of its various phases of development to meet the changing needs. Hindus considered Vedas as the material source of all knowledge. Hindu law is not only divine, but also sacrosanct, inviolable, and unchangeable. It cannot be questioned, challenged or violated.The sources of Hindu Law may be classified under the following: 1. Ancient or Traditional Sources Sruti (Vedas); Smritis; Digests and Commentaries; and Custom. 2. Modern Sources Equity, justice and good conscience; Precedent; and 3. Legislation. Ancient/Traditional Sources: The ancient Hindu legal system recognized the following four sources: Ancient or Traditional Sources Sruti ( Vedas) The primary and important source of Hindu Law is Sruti or Vedas. The four Vedas are the foundation-head of Hindu religion and law. The word ‘Sruti’ literally means “what was heard”. In other words, “what is heard by Rishis (sages) from God is Sruti or Veda”. ‘Veda’ means knowledge or to know. There are four Vedas namely the Rig, the Yajur, the Sama, and the Atharvana. Vedas contain the voice of God. These Vedas contain the sacred lore and esoteric knowledge of the Hindus and came into existence long before 4000-1000 B.C. Smritis: Smritis are the most important source of Hindu Law. The word ‘Smriti’ literally means “what has been remembered”. Sruti (Vedas) represent direct words of God as heard by the sages, while Smritis represent what was remembered from the words of God heard by sages. The early smritis were termed as Dharma Sutras (800-200 B.C.). They were mostly in prose form and were written by the teachers expounding Vedas for the sake of their students. Gautama. Boudhayana, Apasthamba, Vasishta, Vishnu and Harita are the main Dharma Sutra Karas. The later Smritis were termed as Dharma Sashtras which are more systematic expositions than Dharma Sutras. The subject matter in these smritis is divided into Achara Vyavahara and Prayaschitta. The principles of law are mostly covered under the pail, Vyavahara. Manu, Narada and Yagnavalkya are the important smritikars. Manusmriti is the oldest smruthi and is of great importance and is considered as a ‘reservoir of law’. (It has 12 chapters containing 2,694 slokas). The Code of Manu in its present form of 2694 Slokas dates from 200 B.C. according to Max Muller. The Code deals with many matters, but the part bearing upon law deals with the subject under 18 titles; debts, pledges, sales, deposits, partnership, gifts, wages, agreements, boundary, disputes, master and servant, husband and wife, partition and inheritance, betting and gambling, assault, defamation, theft, robbery and adultery. Digests and Commentaries: The Digests and ('ommentaries cover a period of about 1000 years from 700 A.D. to 1700 A.D. Notable smritis and digests are namely, Manubhashya written by Medhatithi (895-900 A.D.), Manavata Muktavali written by Kulluka Bhatta (1250 A.D.), Mitakshara, a famous commentary written; by Vignaneswara (1100 A.D.)1, Aparaditya written by Aparaka (1200 A.D.) etc. In addition, there are certain regional digests and commentaries like Smriti Chandrika written by Devammabhatta in South India (120 A.D.), Viramilrodaya written by Mitramisra (17,h (’entury) in Western India, Vivadachintamani written by Vachaspathi (I5'h Century) in Mithila, the above Viramitrodaya in Banaras, and yet another famous work Dayabhaga written by Jimutavahana (12lh ('entury). The rules enshrined in Smritis were not clear and were not free from conflicts. For facilitating the administration of justice, necessity arose to analyse and systematise the smritis, by the commentators and digest writers. The important commentaries are namely, Manutika, Manubhashya, Mitakshara, Dayabhaga etc. Custom: Manu recognized custom to be transcendent law, ‘Custom’ means “Achara or usage”, a traditionally followed long practice, by the members of society. Hindu philosophy enunciates l hat ‘Achara Paramodharmaha’. It is a good source to interpret the law in the administration of justice. The Privy Council in Collector of Madhura vs. Mootoo Ramalinga Sethupathy (1868) 12 M.L.A. 197, also has recognized ‘Custom’ as the supreme authority in Hindu Law. The question that arose in the instant case was, whether in the I havida country (South India) a widow could make adoption even in the absence of express authority from her husband. Examples of such customary practices were given to show that with the authority of the deceased husband’s Sapindas a valid adoption could be made by the widow. The relevant text of the Sage Vasishta was to the effect that a woman should not adopt except with her husband’s permission. The Privy Council pointed out that it was not open to the judges to embark upon an independent enquiry into the meaning of the Dharma Sastra text. The text is to be understood only in the light of the actual practice. Sir James Colville observed in this case: “Under the Hindu System of law clear proof of usage will outweigh the written text of the law”. Custom is a bonafide practice being observed by the people in general from generation to generation and the starting point of which is unknown. A custom to be valid, it must be a)ancient; b)continuous; c) reasonable; d) moral; and c) not contrary to the statutory law in force. There are different customs as detailed below; i)Local Custom. ii)Family Custom, and iii)Caste or Community Custom.

Who is a Hindu? www.lawtool.net WHO IS A HINDU Meaning and Definition: The term “Hindu” is derived from the Greek word “Indoi”. The Greeks used to call the inhabitant of the “Indus Valley” as “Indoi”. The law, which governs the Hindus is called “Hindu Law”. Eg. The Hindu Marriage Act, 1955; The Hindu Succession Act, 1956; The Hindu Adoptions and Maintenance Act, 1956; The Hindu Minority and Guardianship Act, 1956, etc. According to ancient Hindu Texts, a Hindu is born and cannot be made. In other words, the status of a person as a Hindu is determined by his/her birth to Hindu parents. However, this view is not valid legally since a person can become a Hindu by conversion to Hinduism. Similarly, a Hindu can destroy his/her status as Hindu by conversion to Christianity (to become a Christian) or Islam (to become a Muslim/ Mohammedan). Therefore, it is made clear that Hindus are not only born but also made. Therefore, the term ‘Hindu’ includes “those born as Hindus and also those who become converts to Hinduism”. Hindus are therefore born as well as made and thus the applicability of Hindu Law is not restricted or confined to those persons only who are Hindus by birth. Its application has been extended to those persons also who have accepted the Hindu religion or who convert to Hinduism. A non-Hindu may renounce his religion and become Hindu by conversion by any of the three methods: a)if he performs the ceremony of conversion prescribed by the caste or community to which he converts; b)if he expresses an intention to become a Hindu and actually lives as a Hindu and the community or caste into the fold of which he is ushered in accepts him as a member of that community or caste; c)if he declares that he is a Hindu and lives as a Hindu. It is very difficult to define the term “ Hindu” in terms of the Hindu religion. Hindu is one, who is brought up as Hindu. However, from I he points of view of the application of Hindu Law under Section 2 of the Hindu Marriage Act, 1955, Section 2 of the Adoption and Maintenance Act, 1956, and Section 3 of the Hindu Minority and (guardianship Act, 1956, the following persons are regarded as Hindus and are governed by the Hindu law. In other words, Hindu law is applicable to the following persons: a)any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana, or Arya Samaj; b)any person who is a Buddhist, Jaina, or Sikh by religion, and c)any other person domiciled in the territories to which this Apt extends who is not a Muslim, Christian, Parsi, or Jew by religion unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. The following persons are Hindus, Buddhists, Jains, or Sikhs by religion, as the case may be: a)any child legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains, or Sikhs by religion; b)any child, legitimate, or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina, or Sikh by religion and who is brought up as a member of the tribe, community, group, or family to which such parent belongs or belonged; any child, legitimate, or illegitimate who has been abandoned both by his father and mother or whose parentage is not known and who in either case is brought up as a Hindu, Jaina, or Sikh; and a)any person who is a convert or re-convert to the Hindu, Buddhist, Jaina, or Sikh religion. As stated above, a Hindu may be subdivided into the following categories namely: 1. Hindu by Religion. 2. Hindu by Conversion (Converts and Reconverts); and 3. Hindu by Birth.

Hindu by Religion. www.lawtool.net As stated above, a Hindu may be subdivided into the following categories namely: 1. Hindu by Religion. 2. Hindu by Conversion (Converts and Reconverts); and 3. Hindu by Birth. Hindu by Religion: Hindu by religion is two types of persons fall under this category: (a) Those who are originally Hindus, Jains, Sikhs, or Buddhists by religion, and (b) Those who are converts or reconverts to Hindu, Jain, Sikh, or Buddhist religion. Any person, who is Hindu by religion in any of its forms and developments either by practicing or by professing it is a “Hindu”. It is very difficult to define what is Hinduism. “Acceptance of the Vedas with reverence, recognition of the fact that means and ways of salvation are diverse and realization of the truth that a number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion”. Any person, who has faith in the above fundamental principles is regarded as a Hindu by religion. As a consequence of reforms and counter-reforms that took place, different forms of Hindu religion viz. Arya Samaj, Brahma Samaj, Veera Shaiva, Lingayat, Satsangi etc. came into existence. Hindu by Conversion (Converts and Reconverts): Hinduism recognizes conversion and Hindu Law is applicable to the converts to Hinduism from other religions. “Conversion is a process, by which a person gets converted from one religion to another, by performing the formalities/ceremonies, if any prescribed for the conversion. After conversion, he/she is called “Convert”. A non-Hindu can become a Hindu by fulfilling the formalities/ undergoing the ceremonies if any prescribed for the conversion. Similarly, if a convert reconverts to another religion, he is called “reconvert” a Hindu again by reconverting into any one of the four religions of Hindus viz. Hinduism, Jainism, Buddhism, or Sikhism. By ('conversion, a person (Convertor reconvert) renounces his faith and adopts another. The Dharmashastra did not prescribe any ceremonies for conversion to Hinduism. Among the Hindus, only Arya Samajists prescribed a ceremony known as ‘sudhi’. A person who undergoes ‘sudhi’ ceremony gets converted to Hinduism and he is called ‘Arya Samajist Hindu’. Hindu by Birth: Any person born of Hindu parents is a Hindu by birth. According to modern Hindu Law, a person is a Hindu by birth in the following two cases: i) When both the parents are Hindus. Any child, legitimate or illegitimate, born of Hindu parents, who are Hindus. It is necessary that both the parents should be Hindus, Sikhs, Jains, or Buddhists. If one parent is a Hindu and the other is Jain, Sikh, or Buddhist, then also the child will be a Hindu. In Maneka Gandhi v. Indira Gadhi (AIR 1985 Del 114) It was held that in case Sanjay Gandhi, son of a Parsi father and a Hindu mother was a Hindu at the time of his death as he was brought up as a member of his mother’s (Indira Gandhi’s) community. When one parent is Hindu: Any child, legitimate or illegitimate, one of whose parents at the time of birth was a Hindu and was brought up as a Hindu (even though the Hindu parent converts to another religion subsequently). In other words, a person is said to be a Hindu, if the following conditions are satisfied At the time of his birth, one of the parents was Hindu, and he is brought up as a member of the tribe community, group, or family to which the Hindu parent belonged at the time of the birth of the child. This was the position, even before the codified Hindu law.Under modern Hindu law, the child's religion is not necessarily that of the father. If the mother of a child at the time of the child's birth was a Hindu and the child was brought up as a Hindu, the child would be a Hindu. In the codified Hindu law it is made evident by the use of the word ‘belonged’ in explanation (b) of Section 2(1), Hindu Marriage Act, 1955. Hindu under codified Hindu Law: The codified Hindu laws (viz. the Hindu MarriageAct, 1955; the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act, 1956, etc.) are applicable to two categories of persons as detailed below: 1. Those who are Hindus, Sikhs, Jains or Buddhists by religion or birth, and 2. Those who are not Muslims, Christians, Paris, or Jews by religion. A person who is a Sikh, Jain or Buddhist is not a Hindu by religion, though Hindu law applies to him. Similarly, a person who is not a Muslim, Christian, Parsi, or Jew is not a Hindu by religion though Hindu law applies to him. This, virtually means that a uniform family law applies to all persons within the territories of India (excluding Jammu and Kashmir)who are not Muslims, Christians, Parsis, and Jews. Thus what Parliament meant to enact is apply clear from other provisions of the codified law.

Nairobi Declaration, 1982 www.lawtool.net Nairobi Declaration was adopted at Nairobi for celebrating the 10th Anniversary of the Stockholm Conference on Human Environment, 1972. 105 nations participated in the Conference which was held from May 10th to 18th, 1982. The Declaration envisaged the creation of a special Commission to frame long-term environmental strategies for achieving sustainable developments up to the year 2000 and beyond. The Declaration was endorsed by the governing council of UNEP in; 1987, and also by the General Assembly of the UNO. Some of the important provisions of the Nairobi Declaration are as föllows- (1) It was recognized that threats to the environment are aggravated by poverty as well as by wasteful consumption patterns. Both can lead to over-exploit their environment, The international people Development Strategy for the Third United Nations Development Decade and the establishment of a New International Economic order are thus among the major instruments in the global efforts to reverse to environmental degradation. (2) The human environment would greatly benefit from an international atmosphere of peace and security free from the threat of any war. especially nuclear war, and the waste of intellectual and natural resources on armaments as well as from apartheid, racial segregation and all forms of discrimination, colonial and other forms of" oppression and foreign dominátion. (3) Many environmental problems transcend national boundaries and should, when appropriate, be resolved for the benefit of all through consultations amongst States and concerted international action. Thus, States should promote environmental law, including conventions and agreements, and expand co-operation in. scientific. research and environmental management. (4) the progressive development of Developed countries, and other countries should assist developing countries affected by environmental disruption in their domestic affairs to deal with their most serious. environmental problems., (5) Further efforts are needed to develop environmentally sound management and methods for the exploitation and utilization of natural resources and to modernize traditional pastoral systems. (6) Prevention of damage to the environment is preferable to the burdensome and expensive repair of damage already done. Preventive action should include proper planning of all activities, that have an impact on the environment. (7) Lastly, the World community of States solemnly reaffirms its commitment to the Stockholm Declaration and Action Plan, as well as to the further strengthening and expansion of national efforts and international co-operation in the field of environmental protection. The Declaration also urged all governments and people of the World to discharge their historic responsibility collectively and individually, to ensure that our small planet is passed over to future generations in a condition that guarantees life of human dignity for all.

KYOTO SUMMIT 1997 www.lawtool.net Kyoto Environmental Summit On Global Warming (1.12.1997 to 11:12-1997) (Kyoto Protocol) The Convention on Climate Change had decided that a review conference would be held after five years. Hence, a conference on climate change was held at Kyoto in Japan to review the progress made in five years and to chalk out plans, and to fix strategies and objectives for the future. More than 150 countries participated. One of the major decisions at the summit was the target set for 24 industrialized countries for reducing the emission of greenhouse gases from the 1990 levels. It is universally recognized that methane, chlorofluorocarbons, carbon-di-oxide, and other industrial gases are causing the greenhouse effects leading to earth warming and adverse effect in the climate all over the world. In the Earth Summit of 1992, conducted on climate change or greenhouse emission, it was decided that a review conference would be convened after a period of five years. Accordingly, a conference on climate change was convened at Kyoto in Japan during December 1 to 11, 1997 wherein the progress made during the past five years was reviewed and future plans were chalked out by fixing strategies and objectives for the future. The Conference was attended by representatives of more than 150 countries. Alter vigorous and untiring efforts of eleven days, the conference succeeded in taking certain solid decisions, At the end of the Conference, it was decided that the degree of emissions of the green-house gases prevalent in 1990 would be reduced by 8%, 7%, and 6% by European Union, America, and Japan, respectively, between 2008 and 2012. Similarly, targets of 21 other industrial countries were also fixed with similar reduction requirements. Consequently, Kyoto Protocol came enforcement. It required ratification by at least 55 members of the UN Framework Convention on climate control. For example, the target for the European Union was to reduce emission by 8 % from the 1990 levels, the USA by 7 %, and Japan by 6 %. The 142 targets for the other countries were an average reduction of 5 %. These targets were to be achieved by 2012. In this conference, some of the developing countries opined that their economic conditions do not permit them to accept such commitments. One of the reasons for this was that of the less per capita emissions of greenhouse gases in these countries which are far less than in industrial countries. Therefore, the developing countries, including India and China, are exempted from such commitments. Developing countries like India and China were exempted from such commitments because their per capita emission was much lower than that in industrialized countries. Terms, each a significant development was the protocol on the trading of emission credits among all countries as part of the clean environment mechanism. In simple country is entitled to a certain level of emission. Kyoto to allow trade between countries who don't use up their entitlement and this was aimed to ensure that developed countries implemented and paid for clean technology in developing countries. The protocol was signed by 120 countries. I was decided at those who exceeded it.

INTERNATIONAL ENVIRONMENTAL REGIME RIO CONFERENCE ( EARTH SUMMIT ) 1992 www.lawtool.net The Earth Summit held at Rio de Janeiro, the capital of Brazil, in June 1992 was another landmark international meet on the environment. Officially the UN Conference for Environment and Development (UNCED), it was attended by representatives from 178 countries and 115 heads of government. It was held to highlight the consequences reckless development, which, among other things, had led to the destruction of large parts of the rainforests in Brazil, and to devise strategies to combat the ecological disaster. Key issues the key issues at the summit included greenhouse gas emissions, forests, population, technology transfer and finance. There were also, in fact, issues that divided the North and the South, or the developed countries and the developing countries. Greenhouse gas emission: The North wanted a shift from coal and wood for energy to stabilize by 2000 the levels of emission of carbon dioxide at 1990 levels. On the other hand, the South blamed the rich nations for excessive use of fossil fuels that was leading to high emissions, and wanted the countries to cut down on the consumption. Forests: The North wanted forests to be made a common heritage of the world through legally binding convention to restrict deforestation in tropical countries rich in biodiversity. However, the South insisted that such a step would violate national sovereignty. Population: The North wanted population control in the South as a measure to check deforestation and pollution, while the South blamed the developed countries for consuming over 50 per cent of the world's energy Technology transfer: Asserting that technology development was commercial activity, the North wanted countries that wanted to use it to pay up, but the South insisted that environment - friendly technology had to be transferred cheaply. ARE a Finance: The issue was who would pay for cleaning up the mess caused by pollution. -The North wanted the costs to be shared among all countries, while the South wanted the “polluter must pay principle to be followed. Outcome the major outcomes of the Earth Summit of 1992 were the Rio Declaration, the Convention on Climate Change, and the Declaration on Forest Conservation, Agenda 21 and the Biodiversity Treaty Rio Declaration: The Rio Declaration, also called the Earth Charter, is a statement of principles that set out the rights and obligations of all nations in relation to the environment. It is only morally binding, not legally binding. Convention on Climate Change: The Convention on Climate Change, also known as the Climate Convention, was a commitment, signed by 150 countries, including the USA, to reduce the emission of carbon dioxide. It is legally binding on the signatories. However, it neither fixes any deadline for reducing the emissions nor calls for any immediate change in fuel used. It merely states that the ultimate objective of the agreement was to stabilize the concentrations of greenhouse gases at a level that would prevent dangerous interference with the climate system. It is worded in broad and general terms, thereby providing the signatories flexibility in implementation strategies. Environmental Law Declaration on Forest Conservation: It contains principles for the conservation of forests across the world. It was adopted at the summit, but it is not a legally binding convention. The Rio Declaration On Environment And Development, 1992. This U.N. Conference which adopted the Rio Declaration had met at Rio de Janeiro from 3rd to 14th June, 1992 to re-affirm the Declaration of the United Nations Conference on the Human Environment, adopted at Stockholm on 16th June 1972, with the goal of establishing a new and equitable global partnership among States and working towards international agreements keeping in view the integral and interdependent nature of the Earth. The Rio Declaration proclaims through as many as 27 principles which are more or less similar to that of the principles declared under the Stockholm Declaration of 1972. The following are the 27 principles proclaimed by the Rio Declaration of 1992. Principle 1- Human beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. Principle 2:-States have in accordançe with the Charter of the United Nations and the principle of international law, the sovereign right to exploit their resources pursuant to own environmental own and developmental policies, and the responsibility to ensure that 'activities of other States or of areas beyond the limits of national jurisdiction. Principle 3 The right to development must be fulfilled so as to equitably meet developmental and environmental heeds of preșent and future generations. Principle 4:In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process can not be considered in isolation from it. Prinçiple 5:- All States and all people shall cooperate in the essential and task of eradicating poverty as an indispensable requirement for sustainable development, in order to decrease the disparities in standards of living and better meet the needs of the majority of the people of the world. Principle 6:– The special situation and heeds of developing countries, particularly the least developed and vulnerable, shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries. those most environmentally Principle 7:- States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions to global environmental degradation, states have common but differentiated responsibilities. The developed countries acknowledge the responsibilities that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. Principle 8:To achieve sustainable development and a higher quality of life for their- people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies. Principle 9:- Stątes should cooperate to strengthen endogenous capacity-building for sustainable development by improving scientific understanding through changés of scientific and technological knowledge, and by enhancing the development, adaptation, diffusion and transfer of technologies,' including new and innovative technologies. Principle 10:- Environment! issues are participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and- participation by making information - widely available. Effective access to judicial and administrative proçeedings, including redress and remedy, shall be best handled with the provided. Principle 11:-States shall enact effective environmental legislation.? Environmental standards, management objectives, and priorities should reflect the environmental and developmental context to which they apply. Standards applied by some countries may be inapproprſate and of unwarranted economic and social cost to other countries, In particular developing countries. Principle 12:- States should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not -constitute a means of arbitrarý or unjustifiable discrimination or a disguised restriction on international trade: Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus. Principle 13- States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction. Principle 14:-States should effectively cooperate to discourage or prevent the relocation and transfer to other States of any activities and substances that cause severe environmental degradation or are found to be harmful to human health. Principle 15-In order to protect the environment, .the precautionary approach shall be widely applied by States according to their capabilities] Where there are threats of serious or irreversible damage, lack of- full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation Principle 16:- National authorities should endeavor to promote the internalization of environmental instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment. costs and the use of economic Principle 17- Environmental impact assessment, instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. Principle 18 States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States. Every effort shall be made by the international community to help States so afflicted. should be mobilizėd to forge a global partnership in order to achieve Principle 21: The creativity, ideals and courage of the youth of the world significant adverse transboundary environmental effect and shall development. Their full participation is therefore essential to achievę Principle 20 Women have a vital role in environmental management and Principle 19 : States shall provide prior and timely notification and relevant information to potentially affected States on activities that may consult with those States at an early stage and in good faith. Environmental Law 163 have sustainable development. sustainable development and ensure a better future for all. Principle 22:- Indigenous people and their communities, and other local communities, have a vital rolė in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture, and interests and enable their effective participation in \the achievement of sustainable development. Principle 23:- The environment and natural resources of people under oppression, domination, and occupation shall be protected. Principle 24 Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary. Principle 25:- Peace, development and environment protection are interdependent and indivisible. Principle 26 States shall resolve all their environmental disputes peacefully and by appropriate means in accordance with the Charter of the United Nations. Principle 27:- States and people shall cooperate in good faith and in a spirit of partnership in the fulfillment of the principle embodied in this Declaration and in the further development of international law in the field of sustainable development.

The Ramsar Convention www.lawtool.net Ramsar Convention Convention on Wetlands of International Importance especially as Waterfowl Habitat, 1971 (Ramsar Convention) The Ramsar Convention was the first Convention on the protection of wildlife, aimed at global participation convened at that level solely for the protection of habitat. Under this Convention, parties have to resort to interpretative recommendations. It permits sustainable wise use of sites recorded on a list maintained by its Bureau. It did not forbid or regulate taking of species for any purpose. The first Ramsar Conventipn was held in Cagliari in 1980. wherein detailed criteria for listing of sițes were adopted and recommended to the parties. This convention while not defining the term 'wise use" of wetlands, Environmental Law 155 ecological characteristics of a wetland. recommended that the said term involves maintenance of ecological character of wetlands as a basis not only for conservation but also 1oor sustainable development. The Regina Conference held in 1987, defined the term 'wise use' of wetlands to mean their sustainable utilization for the benefit of human kind in a why compatible with the maintenance of the natural properties of the ecosystem. For the purpose of fulfilling the requiřement of Art. 3 of the Ramsar Convention, namely that the requirement of parties to supply information on the said wise use, to the Bureau, the Regina Conference also established a working group on the criteria and wise use and defined sustainable utilization as human use of wetland so that it may yield the greatest continuous benefit not only to present generations but also to maintaining its potential for meeting the needs and aspirations of the future generations. This Convention was amended by the Protocol of 1982.This Convention adopted an intergovernmental treaty made on 2.2.1971 at Ramsar, City of Iran. Any State which is a member of the United Nations may join the Convention and its membership is also open. A country can also join the Convention if it is a member of one of the United Nations Specialised Agencies or of the International Atomic Energy Agency, or is a Party to the Statute of the International Court oi Justice. The Convention has divided the world into 7 regions, namely. Africa, Asia, Eastern Europe, Neotropics (South and Central America and the Caribbean Area), North America, Oceania and Western Europe. Ramsar Convention- Salient Features Ramsar Convention was held on 2.2.1971 and has been amended by the Protocol of 3.12.1982 and the Amendments of 28.5.1984. The contracting parties to this Convention by recognizing the independence of man and his environment and considering the fundamental ecological functions of wetlands, recognizing the interdependence of Man and his environment; the fundamental ecological functions of wetlands as regulators of water regimes and as habitats supporting a characteristic flora and fauna, especially waterfowl; and having been convinced that wetlands constitute a resource of great economic, cultural, scientific, and recreational value, the loss of which would be irreparable; desiring to stem the progressive encroachment on and loss of wetlands now and in the future: recognizing that. waterfowl in their seasonal migrations may transcend frontiers and so should be regarded as an international resource; being confident that the conservation of wetlands and their flora and fauna can be ensured by combining far-sighted national policies with co-ordinated international action; have agreed as follows:- Meaning of the Wet:Lands,etc: Wet lands are the areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed prescribed mtrs., similarly the water fowls are birds ecologically dependeht on wetlands as provided'under Art.1 of the Convention. Rësponsibilities of contracting parties 1. Contracting parties to designate wetlands and enlist the same As provided under Art. 2 of the Convention each contracting party shall designate suitable wetlands within its territory for inclusion in the List of Wetlands of International Importance, That list is maintained by the bureau established under Art. 8. The boundaries of the wetland shall be described and delimited on a map and may incorporate riparian and coastal zones adjacent to the wetlands, and islands or bodies of marine water deeper than six metres at low tide lying within the wetlands, especially where these, have importance as waterfowl habitat. Wetlands should be selected for the List on account of their international significance in terms of ecology, botany, zoology, limnology or hydrology. In the first instance wetlands of international importance to waterfowl at any seaspn should be included. . The inclusion of a wetland in the List does not prejudice the exclusive sovereign rights of the Contracting Party in whose territory the wetland is situated. Each Contracting Party shall designate at least one wetland to be included in the List when signing this Convention or when depositing its instrument of ratification or accession, as provided in Article 9. Any Contracting Party shall have the right to add to the List further wetlands situated within its territory, to extend the boundaries of those wetlands already included by it in the List, or, because of its urgent national interests, to delete or restrict the boundaries of wetlands already included by it in the List and shall, at the earliest possible time, inform the organization or government responsible for the continuing bureau duties specified in Article 8 of any such changes. Each Contracting Party shall consider its international responsibilities for the conservation, management and wise use of migratory stocks of waterfowl, both when designating entries for the List and when exercising its right to change entries in the List relating to wetlands within its territory. 2. Conservation of the wetlands As provided under Art.3 the Contracting Parties shall formulate Party shall arrange to be informed at the earliest possible time if As provided in Art. 4, each Contracting Party shall promote the and implement their planning so as to promote the conservation of there is any change in the ecological character of any enlisted wetland in its territory or it is likely to be changed as a result of conservation of wetlands and waterfowl by establishing nature the wetlands and as far as possible their wise use. A Contracting technological developments, pollution or other human interference. reserves on wetlands, whether they are included in the List or not, and provide adequately for their wardening. Where a Contracting Party in its urgent national interest, deletes or restricts the boundaries of a wetland included in the List, it should as far as possible combensate for any loss of wetland resources, and in particular it should create additional nature reserves for waterfowl and for the'protection, either in the same area or elsewhere, of an adequate portion of the original habitat. Contracting parties to encourage research 3. The Contracting Parties shall encourage research and the exchange of data and publications regarding wetlands and their flora and fauna. Contracting parties to endeavor for interest in waterfowl populations 4. The Contracting Parties shall endeavor through management to increase waterfowl populations on appropriate wetlands. 5. Conference of contracting parties As provided under Article 6, there shall be established a Conference of the Contracting Parties to review and promote the implementation of this Convention. The Bureau referred to in Article 8, paragraph 1, shall convene ordinary meetings of the Conference of the Contracting Parties at intervals of not more than three years, unless the Conference decides otherwise, and extraordinary meetings at the written requests of at least one-third of the Contracting Parties. Each ordinary meeting of the Conference of the Contracting Parties shall determine the time and venue df the next ordinary meeting. The Conference of the Contracting Parties shall be competent: (i) to discuss the implementation of this Convention; (ii) to discuss additions to and changes in the List; (iii) to consider information regarding changes in the ecological character of wetlands included in the List provided in accordance with paragraph 2 of Article 3: (iv) to make general or specific recommendations to the Contracting Parties regarding the conservation, management and wise use of wetlands and their flora and fauna; (v) to request relevant international bodies to prepare reports and statistics on matters which are essentially international in character affecting wetlands; (vi) to adopt other recommendations, or resolutions, to promote the functioning of this Convention, 6. International Union for Conservation of Nature and Natural Resources As provided under Art. Conservation of Nature and Natural Resources shall perform the continuing bureau duties under the Convention until such time as another organization or government is appointed by a majority of two-thirds of all Contracting Parties. 8 the International Union for The continuing bureau duties shall be, inter alia as follows: to assist in the convening and organizing of Conferences specified in Article 6; (i) to maintain the List of Wetlands of International! Importance (ii) and to be informed by the Contracting Parties of any additions, extensions, deletions or restrictions concerning wetlands included in the List provided in accordance with paragraph.5 of Art. 2; to be informed by the Contracting Parties of any changes in the (iii) ecological character of wetlands included in the List provided in accordance with paragraph 2 of Article 3; (iv). in the character of wetlands included therein, to all Contracting Parties and to arrange for these matters to be discussed at the next Conference; to forward notification of any alterations to the List, or changes to make known to the Contracting Party concerned, the (v) recommendations of the Conferences in respect of such alterations to the List or of changes in the character of wetlands included therein. Duration of Convention As provided under Art. 11 of this Convention,-- (1) This Convention shall continue in force for an indefinite period. (2) Any Contracting Party may denounce this Convention after a period of five years from the date on which it entered into force for that party • giving written notice thereof to the Depositary. Denunciation shall ke effect four months after the day on which notice thereof is received by the Depositary. The Convention on Wetlands of International Importance, called the Ramsar Convention, is an intergovernmental treaty that provides the framework for national action and international cooperation for the conservation and wise use of wetlands and their resources. Negotiated through the 1960s by countries and non-governmental organizations that were concerned at the increasing loss and degradation of wetland habitat for migratory waterbirds, the treaty was adopted in the Iranian city of Ramsar in 1971 and came into force in 1975. It is the only global environmental treaty that deals with a particular ecosystem, and the Convention’s member countries cover all geographic regions of the planet. The Ramsar mission The Convention’s mission is “the conservation and wise use of all wetlands through local and national actions and international cooperation, as a contribution towards achieving sustainable development throughout the world”. The Convention uses a broad definition of the types of wetlands covered in its mission, including lakes and rivers, swamps and marshes, wet grasslands and peatlands, oases, estuaries, deltas and tidal flats, near-shore marine areas, mangroves, and coral reefs, and human-made sites such as fish ponds, rice paddies, reservoirs, and salt pans. The Wise Use concept At the center of the Ramsar philosophy is the “wise use” concept. The wise use of wetlands is defined as “the maintenance of their ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development”. “Wise use” therefore has at its heart the conservation and sustainable use of wetlands and their resources, for the benefit of humankind. Ramsar commitments The Ramsar Contracting Parties, or the Member States, have committed themselves to implement the “three pillars” of the Convention: to designate suitable wetlands for the List of Wetlands of International Importance (“Ramsar List”) and ensure their effective management; to work towards the wise use of all their wetlands through national land-use planning, appropriate policies, and legislation, management actions, and public education; and to cooperate internationally concerning transboundary wetlands, shared wetland systems, shared species, and development projects that may affect wetlands.

INDEMNITY GUARANTEE BAILMENT www.lawtool.net CHAPTER-1 - CONTRACT OF INDEMNITY & GUARANTEE The term ‘Indemnity` Simply means ‘Making Somebody Safe` or ‘Paying Somebody back`. Section 124 of contract Act defines that ‘‘A contract by which one party. Promises to save the other from loss caused to him by the conduct of the promise himself by the conduct of any other person, is called a conduct of indemnity”. The party who gives indemnity or who promises to compensate for or to make good the loss, is called. Indemnifier and the party for whose protection or safety the indemnity is given or the party whose loss is made good is called ‘Indemnified’ or ‘indemnity holder’. Contract of Indemnity : (Sn. 124) It is a contract by which one party (promisor) promises to save the other, from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person. A contract to indemnify B, against the consequences of any proceedings which C may take against B in respect of a claim of Rs. 12,000/-. A is the indemnifier; B is indemnified in respect of the consequence of the suit. Contract of Guarantee : (Sn. 126) The object of the contract of guarantee is to enable. A person to obtain employment, or a loan, or some goods or service on credit. It is a contract to perform the promise or discharge the liability of a third person in case of his default. The guarantee is given by the surety to the creditor in respect of the principal debtor. S becomes a surety to A (seller) in respect of goods given on credit to B. B fails to pay, S becomes liable. According to section 126 of the contract Act ‘‘A contract of guarantee is a contract to perform The person who gives the guarantee is called the ‘Surety’ or ‘guarantor’ & the person in respect of whose default the guarantee is given is called the principal debtor or he is the party on whose behalf. Guarantee is given and the person to whom the guarantee is given is called the ‘Creditor’. The essentials of a guarantee are Essential features of a Guarantee Contract 1. Three parties 2. Three agreement 3. Concurrence of the three parties 4. Control may be experts or implies 5. It may be oral or written 6. Liability of surety is secondary is dependent on principal debtor’s default. 7. Guarantee must be in the knowledge of debtor. 8. All essential of a valid contract. 9. Guarantee must not be obtained by means of misrepresentation. 10. Existence of a primary liability Rights of the Indemnity holder : Sn. 125 The rights of the indemnified (Indemnity holder) when used are as follows. He is entitled to recover : i) All damages which he is compelled to pay in the suit. ii) All costs, he incurs, as a prudent man. iii) All sums paid under any compromise reasonably made under authority. Continuing Guarantee : If the guarantee is for a single transaction, it is called a specific guarantee. A guarantee which extends to a series of transactions is called a 'Continuing Guarantee'. According to Sn. 126 a Contract of guarantee is a Contract to perform the promise or discharge the liability of a third person, in case of his default. 1. A in consideration that B will employ C in collecting the rents of B's lands, promises B, to be responsible up to Rs. 5,000/- This is a continuing guarantee. 2. B is tea-dealer. S stands as a surety to B for supply of tea to C from time to time for Rs. 10,000/- B supplies up to Rs.15,000/- S is liable only upto Rs.10,000"/- 3. S is surety to B for 5 bags of flour to be supplied to C. B supplied to C, 5 bags. Later he supplies 2 more bags. This is not a continuing guarantee. Ordinarily a guarantee is in respect of a particular transaction, whereas a continuing guarantee extends to a series of transactions. The intention of the parties is relevant to decide whether a continuing guarantee subsists. Termination: 1. Revocation: Revocation may be made at any time by the surety as to future transactions by notice to the creditor. In a contract of a continuing guarantee, there are a series of distinct and separate transactions; the consideration is divisible. The revocation can be made only when consideration is divisible, in respect of future transactions. However, if the consideration is indivisible, the surety cannot revoke. This does not apply to a special contract which is entered into by a surety to an administration bond or to a surety bond given in case of a guardian of a minor's property. A in consideration of B's discounting at A's request, Bill of Exchange for C, guarantees to B for 12 months, the due payment of all such bills to the extent of Rs. 50,000/- B discounts Bill for C to the extent of Rs. 20,000/- Afterwards, at the end of 3 months, A revoke the guarantee. This discharges A from all liability, but he is liable up to Rs.20,000/- 2. Death : The death of the surety operates as a revocation of a continuing guarantee, so far as regards future transactions. (This is subject to agreement). No notice of death is necessary. Revocation is effective on death. Where parties agree for a special notice of revocation on death of the surety, "the estate of the deceased becomes subject to the continuing guarantee.

Biggest Environmental Loss To The Nagpur city www.lawtool.net In what could be the biggest environmental loss to the city, thousands of old trees are facing the axe for the construction of a transport hub and an inter-model station at Ajni. The project is coming up on Central Railway’s land which is a thriving biodiversity habitat of birds. The Rail Land Development Authority (RLDA), a statutory body under the ministry of railways, has signed a memorandum of understanding (MoU) with the National Highways Authority of India (NHAI), entrusting the latter with the development, maintenance and management of inter-model stations at different locations across the country. Such stations allow passengers to change transportation modes during transit without having to leave the station premises. Documents accessed by TOI reveal that the project in Nagpur will be executed in two phases. While the first phase will involve the redevelopment of Ajni railway station, bus port and other connecting facilities, phase two will involve commercial projects. The total project area, which is around 446 acres, is home to different variety of trees which are easily over 80-100 years old. Documents obtained by senior citizen Ashish Kumar Ghosh show that a private consultancy carried out a survey for NHAI and found that 1,222 trees will have to be chopped off for construction of the station. Apart from this, over 700 trees will be felled for a school, housing, health care centre, railway offices and other buildings. In a proposal submitted to the garden department of Nagpur Municipal Corporation (NMC), NHAI in its two applications has sought permission to cut nearly 2,000 trees. Experts however feel that the real damage will be much more. NHAI officials were not available for a comment. City’s noted environment activists, who played a key role in saving the urban jungle ‘Bharat Van’, say that many small and medium-sized trees have not been taken into consideration. “The actual number of trees that will be destroyed for the project will cross 7,000,” says activist Shrikant Deshpande. At stake is a green pocket which is much bigger than Bharat Van in Bharat Nagar, adds honorary wildlife warden of Nagpur Jaydeep Das. He also cites the study done by the Indian Space Research Organization’s (ISRO) Regional Remote Sensing Centre (RRSC), which revealed that from 116 square kilometres in 1999, the city’s green cover went down to 76 square kilometres by 2018. “East Nagpur is already suffocating due to diminishing trees. Destroying this last green lung will lead to irreversible damage,” says Das. The activists have been urging the authorities to consider alternate sites for the project which will involve less environmental damage. RTI documents also reveal that no information is available regarding an environment impact assessment for the project. “In case of such a huge project, the entire scope of work and proposed environmental damage should have been evaluated much before start of execution of the project. For such projects, normally site with minimal environment impact is selected. Authorities also need to come clear on environmental clearance and compensatory plantation road map,” says Kaustav Chatterjee, founder of NGO Green Vigil. According to Hema Deshpande, sub-regional officer at the Maharashtra Pollution Control Board (MPCB), consent to establish and operate is mandatory for such projects. The board has not received any such consent for the Ajni project. Probably from next week, NMC’s garden department officials will start surveying the proposed sites. “The area is so huge that it will take us a month to survey and count the number of trees that will be felled,” says garden superintendent Amol Chorpagar. Just like Bharat Van, this project also involves top politicians at the planning level. And just like Bharat Van, activists feel that the city needs to come together once again to save one of the last few green abode left. Highlighting that the rules seem to be different for different cases, a Green activist said, "It has been proved that a crime has been committed, the perpetrators are known, yet the civic body Hesitating to take strong action. It clearly shows that since top politicians are involved in the project, everyone is under pressure."

Doctrine of consolidation WWW.LAWTOOL.NET Right against consolidation: If the mortgagor has executed more than one mortgage in favor of the same mortgagee, he may redeem any of them without being compelled to redeem all at the same time. The mortgagee cannot consolidate the mortgages. He cannot treat all the mortgages as one mortgage and ask the mortgagor to redeem all or none. The right of consolidation can be secured by the mortgagee by means of a contract with the mortgagor. Strictly speaking, such a contract would be a clog as it hampers redemption. A concession, however, is made to the mortgagee in such a case. When the mortgagor has defaulted, he may be obliged to pay up all the mortgages that have fallen due as a condition of being allowed to pay any of them. This right of consolidation enables a mortgagee to compel the mortgagor to pay up other barred mortgage debts also if the mortgage sought to be redeemed is alive. Consolidation can be claimed only under a contract. A simple money debt cannot be consolidated with a mortgage debt even by contract. Such a contract would be a clog and so void. Section 61 of the Transfer of Property Act, 1882 which deals with this subject has been remodeled in 1929. The new section is more comprehensive and abolishes consolidation of successive mortgages even over the same property, where there is no express reservation of the right. It is not retrospective in operation and if a claim to consolidation accrued before it came into force, that right can be asserted in a suit brought after the amending legislation came into force.

The doctrine of marshalling www,lawtool.net Principle of Marshalling: The doctrine of marshalling is contained in section 81 of the Transfer of Property Act, 1882. The right of marshalling is a right given to the puisne mortgagee for the protection of his junior lien. If one incumbrancer has security in respect of two properties of the mortgagor, and another mortgagee has security as to one of the properties only, the two properties will be marshalled so as to throw the first incumbrance, as far as possible, on the property not included in the second security. A mortgages X and Y to B. Then A mortgages X to C. B wants to proceed against property X. If he does so, C's security would be lost. C is a puisne mortgagee. If the property mortgaged to him is found insufficient or just sufficient to pay a prior mortgage, nothing remains out of it to satisfy his own mortgage. This would work a hardship on C. The law, therefore, recognizes the right of marshalling. C can claim this right. When this right is claimed B has to proceed first against the other property mortgaged to him, namely, Y. He has to marshal or arrange his securities in such a way as not to prejudice C. So he will have to proceed first against property Y and then only against property X. This right cannot be exercised by C if other persons have acquired for consideration rights in the other property. This principle underlying the doctrine is stated in Aldrich v. Cooper by Lord Chancellor Eldon to be "that it shall not depend upon the will of one creditor to disappoint the another" so that " if a creditor has two funds, the interest of the debtor shall not be regarded, but the creditor having two funds shall take that which, paying him will leave another fund for another creditor".

What is dower (Mehr)? www.lawtool.net “Dower is a sum of money (or other property) which the wife is entitled to receive from the Husband in consideration of marriage" Mulla. According to Saxena “ Dower is a sum of money or any property promised (may be implied) by the husband to be paid or delivered to the wife as a mark of respect for the surrender of her person (body) after the marriage contract, but generally said to be a consideration for marriage”. Kind Of Dower Dower may be classified according to the method of deciding of its amount and according to the time when it is payable (a) Specified dower: When the amount of dower is fixed (either before or at the time of marriage or even after marriage) such fixed amount is called specified dower. (b) Proper dower (Mahr-i-misl): If the amount of dower is not fixed, the wife is entitled to proper dower. In determining proper dower regard is to be had to the amount of dower settled upon the other female members of her father’s family. (a) Prompt dower (Muwajja!): it is the amount of dower payable before the wife can be called upon to enter into the conjugal domicile. (b) Deferred dower (Muwajja!): It is the amount of dower which is payable on the dissolution of the contract of marriage by the death of either of the parties or by divorce. Can dower be remitted? An adult wife has every right to deal with her dower in any way she likes and as such, she may remit that dower (or any part thereof) in favor of the husband or his heir. Such a remission is valid, though made without consideration. But. the remission must have been made with her free consent. A remission made by the wife when she is in great mental distress (due to her husband’s death) is not made with her free consent and is not binding on her. A girl, who is a minor and has not attained puberty, cannot remit her dower but if she has attained puberty, she is competent to remit her dower though she may not have attained the age of 18 years within the meaning of the Indian Majority Act. A stipulation in a contract of dower that the wife should not be competent to remit her dower without the consent of her relations is valid. Right & Remedies of wife on non-payment of Dower (1)Refusal to cohabit: If the marriage has not been consummated, she has a right to refuse to cohabit with him, so long as the prompt dower is not paid. If the marriage has been consummated she cannot refuse to cohabit (provided the consummation took place when she was not minor or insane.) (2)Legal nature of Dower: ‘The dower is a debt but an unsecured debt” and the wife is entitled (along with the other creditors) to have it satisfied on the death of the husband out of his estate but the heirs are not personally liable. (3)Retention of property (or widow’s lien): An.unpaid dower may be analyzed as under : (1) If a widow (2) has lawfully and without force or fraud (3) obtained the actual possession of her deceased husband’s property in lieu of her dower (4) she is entitled to retain the property in her possession (5) as against other heirs and as against other creditors of her husband (6) until her dower is paid, and (7) if she has not obtained possession (8) she can not exclude other heirs from possession, i.e. they are entitled to joint possession. Kharch-i-pandan Literally, it means betel-box expenses, it is a personal allowance to the wife customary among Muslim families of rank, especially in North India, fixed either before or after marriage and varying according to the means and position of the parties. The husband has hardly any control over the wife's application of the allowance either in her adornment or in the consumption of the article from which it derives its name (paan) ; Khawja Muhammad v. Husani Begam,

What is Cyber Law - CYBER - SPACE www.lawtool.net CYBER - SPACE science fiction author William Gibson definition Global computer network linking all people machine and sources. Oxford dictionary meaning cyber electronic communication network and virtual reality are the science of cybernetics the science of communication and automatic control system in both machines and living things. cyberspace called a new universe or parallel universe. silent feature of the cyberspace virtual world information and Communication Technology, internet technology expanding the boundaries of the cyberspace day to day cyberspace dumpling every 100 days information superhighway speed is tremendous very less source cyberspace and the real world impact each other. NETIZEN person in cyberspace is called netizen is a person who becomes part of large internet society or internet citizen. CYBERCRIME is very problematic related to computer crime most dangerous of all crime because the victim is not aware of steal damage or destroy computer data. CHARACTERISTIC OF CYBERCRIME silent in nature no eyewitness .global in character vast and no National boundaries criminal sitting comfortably so far of the country nonexistence of the physical evidence it is a digital format creates high impact on term of losses high potential and easy to perpetrates unnoticed untouched and unreported due it's anonymity. DIFFERENCE BETWEEN CYBERCRIME AND TRADITIONAL CRIME CYBERCRIME evidence of Cybercrime based on forensic investigator no-traced cybercrime easily time involved investigator cannot locate them and time and easily arrest cybercriminal it means hacker forced involved forced involved no physical injury but mental injury under the cybercrime speed based on machine or computer TRADITIONAL CRIME traditional crime easily traced based on evidence are Physical evidence is also easily available time based on traditional crime short time period to investigation force involved in traditional crime physical injury speed the speed based on traditional crime more time planning preparing and executing the crime. CYBER CRIME CLASSIFICATION THREE TYPES Person Property Government CRIME AGAINST PERSON Harassment way of the email sending letter example Facebook Twitter and Orkut etc. cracking broke computer system without your knowledge cyberstalking it means expressed or implied of physical threat to through the use of Computer technology search internet email phones Hacking un authorized control over the computer dissemination of obscene material obscene exposure pornography physically child pornography prohibited material SMS spoofing .uninvited message blocking through spam defamation imputing any person without intention to lower down the dignity of the person email spoofing miss-representation child pornography sexual exploits underage children carding false ATM card debit and credit cards criminal there monetary benefits cheating and fraud stealing password and data storage has done it with having a guilty mind Crime against property intellectual property crimes IPR violation software piracy infringement of copyright Trademark patent design and service mark solution of computer source code. cybersquatting two persons claim for the same domain name and claiming had registered example www .yahoo.com or www.Yaahoo.com cyber vandalism destroying or damage the data when a network service physical harm done to the computer or any person hacking of computer system loss of the data for financial gain transmitting virus affected the data internet time theft internet hours paid for by another person access the internet without the other personal knowledge other persons knowledge. Cybercrime against government Cyber terrorism endanger the sovereignty and integrity of the Nations cyber warfare politically motivated hacking distribution of the pirated software possession of unauthorized information political religious social ideological objectives. Cybercrime against Society at large child pornography exploit in underage child cyber trafficking drugs, human beings arms online gambling fraud and cheating ,finance crime Attack by sending bogus mail or messages forgery online business. NEED FOR CYBER LAW Need for Cyber Law for breach of online contract at the time cyberspace authority to regulate criminal’s activities modern cyber Technology regulates Cybercrimes through regulating cyber Technologies cyber ACT or IT ACT 2000. THE TARGET OF COMPUTER CRIMES internet connectivity internal internet abuse internet service provider ISP common target of computer crime computer used by military and intelligence agencies business houses targeted bank and financial institution Government and the service industries, trading companies, universities scientific target by students scientific research centers target FUNDAMENTAL OF THE CYBER LAW right to not be harassed protection of the private information monitoring of child protection measures look for an activity that causes a security threat safeguarding against scams discussion of Cyber Law are designed awareness. CHALLENGES OF CYBER LAW legal challenges, operational challenges, technical challenges Cybercrimes are after the committed beyond the Nation's borders. CYBER JURISDICTION Real world of the government power cyber jurisdiction is still in the stage of development as a legal concept Cyber Law in the jurisdiction cyber world every state should have its national law having extraterritorial jurisdiction United Nation Commission on international trade law (u n c I t r a l) model law e-commerce in 1996 and adopted 30/1/ 1997 information technology act 2000 Jurisdiction issue in IT Act Section 75 of the IT Act 2000 says investigation of the cybercrime the primary function of the cybercrime investigator based on the of ascertain record and Facts identify criminals arrest secure preserve and evaluate evidence put evidence in court in legal and presentable method investigation officer prepare case Diaries, general Diaries witness statement inspection of the scenes of crime search and recover arrest bail pre-trial court proceeding example remand interrogation opinion of the opinion of the forensic science laboratory is of the experts. when to start investigation police officer or any duly authorized can start investigation into the cognizable offence without the order of the magistrate FIR under the section 154 CRPC how and where to start investigation computer system documentation system logs background personal telephone records electronic media equipment. CYBER FRAUD is any crime that is committed with use of computer on the computer data fraud will be result in obtaining a benefit altering computer that are unauthorized way altering and destroy suppressing for stealing for unauthorized transaction and difficult to dictate delete stored data misusing existing system tools altering for writing code for the fraudulent purpose identity theft stolen bank accounts hacking fishing accept CYBER THEFT stealing of financial or personal information through use of computer for making its fraudulent or other illegal use IDENTITY THEFT is an elaborate use of someone else identity usually as method to gain financial advantage for obtaining credit and another benefit in the personal name. HACKING COMPUTER HACKING is ascertain meaning of a computer system without the express or implied permission of the owner of that computer system personal a person who has engaged in this activity is known as a computer hacker essential of the computer hacking causing a computer to perform a function simply is switching on computer would be causing is to be perform a function with intent in source unauthorized access hacker intention securing unauthorized law relating to hacking according to Section 66 of IT Act 2000 intend to cause or knowledge wrong losses or damages to the public cyber defamation IPC section 499 define definition of defamation through the internet with intention of different fathers cyber defamation law is being implemented China and South Korea is the first democratic country in the process of in intrude using the law introducing the law advocate fuse view field to prevent number of victims cyber-bullying freedom of speech comes opposing view cyberspace current law CYBER STALKING SECTION 509 IPC cyberstalking involve a follower person movement across the internet by posting messages sometimes the constantly bombarding the victim with emails cyberstalking is a virtual or electronic form of physical stalking harassing for threatening behavior very important case law related to Cyber stalking Manish kalhuria v/s Ritu Kohli CYBER TERRORISM terrorism and internet are interrelated terrorist spread through messages of hate and violence section 66F IT Act 2000 punishment for the cyber terrorism punishable imprisonment or extend to imprisonment for life CYBER PRONOGRAPHY obscenities Oxford Dictionary the explicit discerption or exhibition of sexual subject or activity in in Literature painting films and Webster dictionary writing a picture pornography or pornography Greek language prono means prostitute and graphic means write . CHILD PORNOGRAPHY child pornography is a more serious concern in cyberspace under the age of 18 engaged in the actual or simulated sexual activity including lewd/भद्दा/ Exhibition of genitals Interpol according to the interview increase boom in new and pornography poses according to Kaiser Family Foundation report 70% of teenager age 15 to 17 accidentally come across pornography web serious problem of the sexual addiction. SPAMMING spam is an unsolicited junk commercial companies send out asking you to buy their goods and services at the time it may contain inducement to visit seller’s site. PHISHING increase in the use of online banking online share trading and e-commerce there has been a corresponding growth in the incident of phishing being used to carry out the financial frauds phishing in was fraudulently acquiring sensitive information example password, credit cards details, etc. masquerading as a trusted entity and the victim receives an email that appears to have been sent from his bank The Email urges the victim to click on the link in the email when the victim does so he is taken to a secure page on the bank's website the victim believe the webpage to be authentic and he and his username password and other information, in reality, the website is a fake and the victim's information is stolen and misused. SOCIAL NETWORKING is an online service platform or site that focus on the facility the building of the social network or social relation among the people who for explain share interest activities background or real-life connection of social network service consists of a representation of each user a profile is her service are webpage and provided means for the user to interact over the internet such as email and instant messages social networking sites allow the users to share ideas activities events and interest within their individual networks example social media sites include Facebook Twitter LinkedIn and Google POSITIVE AND NEGATIVE EFFECTS OF SOCIAL MEDIA ON SOCIETY THE POSITIVE EFFECTS OF SOCIAL MEDIA social network helps the business in variety of ways the increasing social networking sites have open the opportunity for all the writers and bloggers to connect with their client your expertise and articles the positive impact of the social networking site is Unity people on a huge platform for the achievement of the some specific objective. THE NEGATIVE EFFECT OF SOCIAL MEDIA The negative effect of the social media or network is it leads to addiction spending continue continuous I was on the social site .kids can be greatly affected by these social networking sites. Social media is the user share to watch information which may pose threat to them it can also waste of time as a people can visit a site to check on think and end up spending the whole day behind the screen and as the result not doing anything useful with their lives LEGAL ISSUES RAISED IN SOCIAL NETWORKING site there are some major legal issue which arise in social networking site like a defamation issue privacy issue copyright issue and also a lot of the people are facing the problem of prankster creating a fake profile on the social networking site some cases as are there in Delhi Mumbai where people are the facing this problem fake profile.law pertaining to social networking site in India legal action are there under the information technology act if the profile is not withdrawn and the absence phone calls continuous legal recourse is there are protection section 67 of the information technology act of 2000 provide that publishing of the information that is obscene in electronic media in amenable for imprisonment for a term for extend to 3 years or with fine may extend rupees 500000 the offence is cognizable and non-cognizable The Criminal Procedure Code clearly mandates their FIR has registered on the complaint and police Superintendent of Police under the section 154 sub clause 3 of CRPC. WEB JACKING just as a conventional hijacking of an airplane is done by using the force similarly web jacking means of forcefully taking over the control of a website the motive is usually the same as hijacking ransom the perpropreter have either a monetary or political purpose which they try to satiate by holding owner of the website to Ransom. the occurs when the someone forcefully takes control of the website by cracking the password and letter changes it the actual owner of the website does not have the control anymore over the appearance on that website. RIGHT TO PRIVACY privacy may be defined as a claim of individual groups or institution to determine when how and to what extent information about them is communicated to others piracy can be defined as a right to left alone vs a human being want to some space or privacy so that we can enjoy our life the way we want one should not have the fear of privacy intrusion in its own home or will enjoy his private life also a citizen has a right to protect the privacy of life marriage life family health procreation and other matter in the simple word privacy is a right of individuals to make a personal decision regarding his personal matter speculated from public Unity Public scrutiny with the advent of internet a new term called internet privacy has become into the Limelight what amount to privacy infringement in cyberspace privacy over the internet can be violated and it is difficult to list and explain all then it is an imperative therefore to be explain privacy infringement in general terms whereby any act befitting this general explanation result into the violation of the privacy. SECTION 66 E PUNISHMENT FOR VIOLATION OF PRIVACY whoever intentionally or knowingly capture publish or translate the image of a private area of any person without his or her consent under the circumstances violating the privacy of that person shall be punishable with imprisonment which may be extended to 3 years of fine with fine with fine not exceeding 200000 rupees or with both. EMAIL BOMBING referred to sending a large number of email to the victim result in their victim's email account increase of the individual or mail server in case of a company or a mail to service provider crashing email bombing is a type of denial of service attack a denial of service attack is one in which a flood of information request to send to server bringing the system to its knees and making their server impossible to access. DATA DIDDLING one of the most common form of the computer crime is the data didn't illegal or unauthorized data correction alteration this change can be occur before the Turing of data input or before output data diddling case have an affected Bank payrolls inventory records credit cards schools transcription and Virtually all other forms of data processing zone known related case law the NDMC electrical building fraud case that took place in 1966 is a typical example of the computer network was used for the receipt and accounting of electric city bill by the New Delhi Municipal Council .collection of money computerized accounting records maintenance and remittance in the bank were exclusively left to a private contractor who was the computer professional .he misappropriated huge amount by manipulating data file to show less receipt and bank remittance. SALAMI ATTACK is used for commenting financial crime the key here is making the alteration so in signification that in the single case it would go completely unnoticed for instance of bank employee insert a program into the bank server that detects a small amount of money say Rs 2 a monthly from the account of every customer no holder will probably notice this unauthorized debit but the bank employee will make a sizeable amount of money every month is called Salami attack as it analogous to slicing the data thinly like selling. DENIAL OF SERVICE ATTACK is called dos attack involve loading a computer with more request then it can handle this cause the computer to crash and result in authorized user being unable to access the service offered by the computer let us consider an ordinary text of computer if you run a few programs Microsoft Word Internet Explorer media player extra simultaneously it would be work fine if you try running doesn't of program simultaneously the computer would slow down or even stop responding another variation of the typical denial of the service attack is known as a distributed denial of the service DDOS attack where in the perpetrator are many and are geographically widespread. INTERNET TIME THEFT is generally defined as taking away of the property from a person's position without his consent in the term of cyberspace have can be when somebody use another person's internet our without the consent of the person as such there is no specify specific provision under the Indian cyber act IT Act 2000 but section 379 of IPC can know very well be used to cover Sachkhand the growth of Internet in India has led to the pre valence Reliance of the practice of psychotherapy in our country the booking of person under the present legal provision in the legal view is still awaited in one of the earliest case of the cybercrime in India in the year 2000 that Delhi police had arrested Mukesh Gupta Sakshi Nagpal Shashi Nagpur and Krishna Kumar for illegally using the internet hour and account they had been arrested for the world leading provision of the Indian Telegraph act 1885 at the time when the Indian cyber law had not been passed in this case khol de Silva reported the theft of internet time about 107 power purchase from BSNL on November 4th 1999 engineer is computer crashed the replacement of hard disc about 2 month after that one on checking found his internet time account exhausted on his complaint case under section 33179 IPC read with 25 Indian Telegraph act registered at and investigation take up log details with the telephone number for the internet connection of school Bajwa collected security level 10 full telephone numbers using internet account then Mukesh Gupta and the other two Shashi Nagpal and Krishna Kumar arrested for giving complaint number to different people for use FREEDOM OF EXPRESSION IN CYBERSPACE article 19 class 1 of the Indian Constitution secure the right to freedom of speech and expression to Everest it means right to express once conviction and opinion freely by word of mouth writing printing picture or any other but here we are interested only with the cyber space that is the internet media Facebook Twitter extra unlike US Constitution Indian Constitution does not expressly mention the liberty of press press provide information and 10th as per man permanent means of dialogues communication between the people and their elected representative in Parliament and the government does press is not limited to vote casting and television but also cyber Technology alone has hundred million internet user and large number of the people still depend in the way of on cyberspace for their daily work right to freedom expression put forth both positive and negative application other state will be the positive application obligation over the state will the positive application is that the state ensure that every citizen has ensure that society at large in not the right section 66 a of IT Act prescribed punishment for the sending offensive messages through computer or any other communication device and and a conversation can a maximum of three years represent the Supreme Court on 24th March 2015 declared the section 66a of information technology act as unconstitutional as this section has been widely misused in various state by the police to arrest innocent person for the posting critical comments about the social and political issue and the political leader on cyberspace MEANING OF COMPUTER VIRUS a computer virus is a program that is specially designed to corrupt or destroy file and hang and lock up the computer system the infectious program as called virus attaches itself to another file on a storage device say floppy or hard disk and duplicate itself without the user knowledge the virus attacks the computer by erasing and deleting file from the hard disk or by formatting the disk the virus enters through an infected floppy hard drive pen drive through an unauthorized or pirated program virus are from forms of hi-tech malicious maliciousness computer virus are deviant programs that can cause of destruction to computer that contact them the virus then usually attach itself to the hard disc. TYPE OF VIRUSES viruses may take a several forms. The two principal viruses are the boot sector virus and file viruses in addition other viruses are also there to be created problem for your computer system they are listed under the boot sector virus file virus worm Trojan horse polymorphic virus mutation engine. VIRUS ACTION generally virus action are considered with the way which they enter or get loaded into the memory of the computer system virus maybe get loaded into the Ram by using the different method load from the bootstrap loader node from command it may, in fact, a.com or . Exe files and start spreading each time that is executed . TYPE OF EFFECTS slow down the system mark the good sector bad remaining all file with a single name and many more format the hard disc does destroy the data destroy the fat file allocation table corrupt files interfere with the display on the VDU. METHOD OF ELIMINATION OF VIRUSES ANTIVIRUS PROGRAMS fortunately where are the some cures, prevention method and clean process of virus most of the time the virus spread through infected floppy .cleaning a virus does delete the virus code from the infected file while clean a disk of boot sector partition table virus involved deleting the virus code from the respective sector and copying the boot programs back to their original space Antivirus program makes scanning of the files for the following two indications of the virus activity . CHANGING IN THE EXE AND PROGRAM FILES When the virus program infected a program file virus usually affected the file in some way antivirus program keep track of file site and other information and to notify if there are any recent changes in any program files such as config.sys. signature of viruses in the most cases the program acting like a virus contain data that is unique to the particular virus and antivirus program scan from for this unique data and indication the virus. Types of antivirus program antivirus programs are mainly classified into three type’s scanners, antidotes, vaccine, Scanner used to scan the virus from the hard disk or the floppy disk and detect any virus. Anti-virus scanners are based on the checking of the file sectors and the system memory and search for known the new virus search for known viruses mask are used in the method that is an algorithmic language describing all possible codes sequence. Some antivirus uses this approach to detect polymorphic viruses. heuristic scanning process analyses of the sequence of the instruction in the code scanner anti-virus program are classified into two categories general and special general scanner anti-virus program are designed to find and this all kind of viruses .specialized scanners designed to disarms only limited number of viruses or only one class of virus . PREVENTION FROM THE VIRUS ATTACK FOLLOW DO AND DON'TS DOS use authorized license software only. Scan other floppies using anti-virus program before using in your system frequent backup of all your files. If you are using an antivirus program on regular basis. Don’ts do not run unknown programs copy and check for viruses are format the days when it is returned delete email and junk email do not download any file from strangers do not open any file attached to an email from an unknown suspicious or untrusted source. DETECTION OF AN UNKNOWN VIRUS it is necessary that you have to use antivirus program to detect and delete the viruses antivirus program are available in market from the different companies example Quick Heal, Norton MacAfee, AVG is can. PREVENTION OF CYBER CRIME exercise caution sharing with personal information such as your name email address etc. do not respond to email messages that ask for your personal information do not visit unwanted gambling or relative website avoid sending any photograph to stranger choose a strong password and cannot be easily decoded. always keep on reviewing your credit card and bank statement regularly always keep your computer up to date install firewall block the unwanted internet sites at regular interval.

SECULAR STATE www.lawtool.net The Framers of our Constitution incorporated the Freedom of religion which is the hallmark of Secularism in Arts.25 to 28. They were inspired by the U.S. Constitution, where according to Jefferson there is a wall of separation between the Church and the State. (First Amendment to U.S. Constitution). In our constitution, 42nd Amendment added "secular" to the preamble. Secular is opposed to "religious state (Theocratic State) " and "Irreligious state ". The State should be neutral, and, treat all religions equally. Religious practises, worshipping of God etc. are left to the dictates of every individual conscience. The State should not interfere. lt should not aid one religion or prefer one religion over another. It should not collect any religious taxes. This is the essence of the separation of the church from the State. Freedom of Conscience: Art. 25. All persons are equally entitled to the freedom of conscience and the right to freely profess, practise and propagate religion, (a) This is subject to public order, morality health and other provisions of part III. (b) State may by law regulate or restrict any economic, financial, political or other secular activity of the religion. (c) State may provide for (1) Social Welfare and reform or (2) Throwing open Public Hindu religious institutions to all classes of Hindus. (Hindu includes a Sikh, Jain Buddhist. A Sikh may wear a Kirpan). In the "Anand Marg" case, a ban imposed under Sn. 144 Cr.P.C. on Tandava dance with daggers, Trishul, skulls etc. in public places was held valid on grounds of public order. Freedom of Religious Institutions: Art. 26. Every religious denomination has the right: (a) To establish and maintain religious and charitable institutions. (b) To manage its religious affairs. (c) To own and acquire property, and (d) To administer such property. These two Articles deal with the basic essentials of our Secularism. Art. 25 refers to persons whereas Art. 26 guarantees freedom to Religious Institutions. These are subject to certain restrictions. The limit and scope of these have been discussed by the Supreme Court in a number of cases : Commissioner ofH.R. Endowments V. Laxmindra Thirtha Swamiar (Sirur Mutt Case) : The Madras Hindu Religious and Charitable Endowment Act had provided for provisions to deprive the mahant of his right to administer the property.lt enabled the Commissioner to enter the premises and also the sanctum sanctorum of the temple.The Supreme Court struck down these provisions.lt declared that 'A religion is not only a code of ethical rules, but it contains rituals, ceremonies, modes of worship and also observances regarding dress, food etc. There is internal autonomy and no outside authority has jurisdiction to interfere.' In Venkataramana Devaru V.State of Mysore, the Madras Temple Entry Authorisation Act provided for the entry of Harijans to any Hindu temple. This was challenged by the trustees of the temple belonging to Gowda Saraswaths. They claimed under Art. 26 (1), that they had the rights to manage the affairs of the temple and hence, they could bar the entry of any person. Held, Art. 25(2), to throw open Hindu temples to all Hindus prevailed over Art. 26(1). The law was held valid. In the Saifuddin V State of Bombay,the right of a religious head to excommunicate a member from the community was held valid. In Ratilal V. State of Bombay, the Charity Commissioner was authorised to deviate the funds of public trust for purposes other than what the donors had indicated. Held, this violated Art.26. State ofRajastan V. Sajjanlal. The temple of Lord Jagannath at Puri is a denominational temple. If a law provided for a non-member of the denomination to be a member or chairman of the Managing Committee, then it would be violative of Arts. 25 and 26. As the Rajasthan Public Trust Act did not have such an effect, it was held valid. In "National Anthem" case our Supreme Court held that "religious objectors" (Jehovah) could not be compelled to salute the national flag. Three children, who stood up respectfully, but refused to sing the national anthem were expelled from school. The court followed the American Supreme Court (Barnette's Case), and held that standing respectfully but not singing the national anthem, was not violative of any law. The expulsion order was quashed. In Archaka's Case, the Supreme Court held that the office of Archaka is secular, and, hence a Hindu, who is qualified in Agamas etc. as required by the Hindu Temple, should not be denied of his opportunity in an appointment on grounds of caste. Freedom from religious taxes : Art. 27 declares that no person should be compelled to pay any taxes or tolls to promote or maintain any particular religion or its denomination. In Sri Jagannath V. State of Orissa, the Supreme Court held valid a fee levied by the Orissa H.R.E. Act, as there was no favour to any particular religion or religious denomination. In Swamiar's Case, the Supreme Court held, a fee of 5% of the total income of the religious institution per annum was a 'tax' and hence the Madras Legislature was incompetent. The levy was held ultra vires. Art. 28 states that religious instructions shall not be provided in Educational Institutions wholly maintained out of State Funds. a State may administer an Educational institution created under a trust or endowment which requires imparting of religious instruction. In-State recognised or aided public educational institutions if there is any religious instruction or worship, compulsory attendance of any person is barred. But, voluntary attendance is not barred. Similarly a minor may attend if his guardian has given consent.

Contractual Liability of the State Synopsis Contractual liability under the Constitution of India Contractual liability and executive power Contractual liability under the Constitution of India The contractual liability of the State or Government is dealt with under Articles 298 and 299 of the Constitution of India. According to Article 298, the Government can enter into contracts for the purpose of carrying out the functions of the State. According to Article 299, the Government has to fulfill certain essential formalities for the purpose of entering into contracts. Contractual liability and executive power The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose. All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by Such persons and in such manner as he may direct or authorize. Neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution, or for the purposes of any enactment relating to the Government of India here to fore i force, nor shall any person making or executing any such contract or Insurance on behalf of any of them be personally liable in respect thereof.State of Assam v. Kesabd Prasad Singh, AIR 1953 SC 309, it has been held that a Government contract in order to be valid, besides satisfying the requirements of Article 299, must also fulfill the requirements of Section 10 of the Indian Contract Act which deals with the essentials of a valid contract. Mulam Chandv. State of Madhya Pradesh, AIR 1961 SC 1218, it has been held that the provisions of Article 299(1) are mandatory and therefore the contract made in contravention thereof is void and cannot be ratified and cannot also be enforced even by invoking the doctrine of estoppel. Points to Remember Contractual liability of State is dealt under Articles 298 and 299 All contracts made in the exercise of executive power of State All contracts or assurances of property made exercise power It is executed on behalf of the President Neither President nor the Governor shall be personally liable

The doctrine of lis pendens www.lawtool.net Lis pendens means a suit under consideration of any court of law. It is an action which is pending in any court. The doctrine is enshrined under Section 52 of the Transfer of Property Act, 1882. This section is based on the maxim ut lite pendente nihil innovetur' which means that nothing new should be introduced into a pending litigation. Therefore, the property which is in dispute should not either be sold or otherwise dealt in by any party to the dispute during the pendency of the suit or proceeding. Section 52 of the Transfer of Property Act prohibits transfer of immovable property during the pendency of a suit relating to that property without the leave of the court. The operation of a transfer is affected by lis pendens, i.e., pendency of legal proceedings. Suppose A brings a suit against B for recovery of possession and declaration of title to certain immovable property. Pending this suit, B transfers the property to C. A proceeds with the suit and obtains a decree against B. When he tries to take possession, C objects and says that he was not a party to the suit and so is not bound by the decree. If this objection is well founded, it means A will have to file a suit over again this time against C. He may again be foiled by C in his turn selling the property to D while the suit is pending. Obviously the law cannot allow its proceedings to be rendered futile in this way. So it has enunciated the doctrine of Us pendens. According to this doctrine the transfer to C pendente lite, (while the suit is pending), cannot prevail over the rights declared by the court. The transferee pendente lite is as much bound by the decree as the transferor himself though the transferee was not himself made a party to the suit. The law does not prohibit a transfer of the property being made simply because there is a pending lis but it requires that the transfer should be subservient to such rights as may be declared by the court. The transferee takes the property subject to whatever decree the court may pass in that suit even in his absence so long as proceedings in court are not collusive. It is immaterial that he was not aware of the existence of the pending Us. This is the doctrine of lis pendens. It has been embodied in section 52 of the Transfer of Property Act, 1882. The section was not as clear as it should have been and so it has been completely recast by the amending Act of 1929. Rights depend upon remedies. This also holds good as regards the right to property. Since speedy and efficient remedies are of utmost importance, it has to be ensured that once a person has initiated legal process in any court to seek remedy against any invasion on his right or threat of invasion thereto, the legal process should not be defeated on account of private deals or any transaction, that is, transfer of property in dispute or on account of any other action of any party to such legal process, otherwise the very purpose of seeking relief against any grievance would be meaningless and ineffective. In order to ensure that the legal remedy remains efficient throughout the legal process, jurists had evolved a general principle known as lis pendens basing it on the necessity that neither party to the litigation should alienate the property in dispute so as to affect his opponent. Whartons Law Dictionary defines lis pendens as pending suit. Lis means a suit, action, controversy, or dispute, and dispute is a conflict or contest, while controversy is a disputed question, a suit at law; and the pendens of the lis is not disturbed on in any manner affected by the fact of an appeal taken from one Court to another. The litigation or contest still goes on. The principle of lis pendens embodied in Section 52 of the act being a principle of public policy, no question of good faith or bona fide arises. Such being the position the transferee from one of the parties to the suit cannot assert or claim any title or interest averse to any of the rights and interests acquired by the another party under the decree in suit. The principle of lis pendens has the object to prevent anything done by the transferee from operating adversely to the interest declared by the decree. Moreover, it is also important to understand that the doctrine does not becomes eradicated when the suit is disposed. It still remains into existence till the time when the suit is dismissed and an appeal is not yet filed, thus leaving no loophole to prejudice any party to the suit. The explanation to the Section makes it very clear that the suit shall be deemed to have started from the date while the plaint will be supplied in the court and shall continue to exist until the time such proceeding has been decided by final order. Concept Of Rule Of Lis Pendens Basis of rule of lis pendens: Doctrine of lis pendens is based on legal maxim ut lite pendente nihil innovetur which means during a litigation nothing new should be introduced. And the principle on which it rests is explained in Bellamy v. Sabine Lord Chancellor Cranworth in the abovementioned case pronounced that: It is scarcely correct to speak of lis pendens as affecting the purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others pending the litigation rights to the property in dispute so as to prejudice the opposite party. The necessities of mankind require that the decision of the court in the suit shall be binding not only on the litigant parties, but also on those who derive title under them by alienation made pending the suit, whether such alienus had or had not notice of the pending proceedings. If this were not so there could be no certainty that the litigation would ever come to an end and said that: The foundation for the doctrine of lis pendens does not rest upon notice, actual or constructive; it rests solely upon necessity-the necessity, that neither party to the litigation should alienate the property in dispute so as to affect his opponent. The doctrine of lis pendens has been fully expounded by the Privy Council in this case of Faiyaz Hussain Khan v Prag Narain[6] where their lordships quoted with approval of Lord Justice Turner in Bellamy's case. It has been held that the foundation for the doctrine does not rest upon notice; it rests solely upon necessity- the necessity that neither party should alienate the property in dispute so that you can affect his opposite parties. Meaning: The doctrine of lis pendens incorporated under Section 52 of the 1929 Act, means to say that During the pendency of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. The Supreme Court in Jayaram Mudaliar v. Ayyaswami, and Rajendnr Singh v. Santa Singh,founded the following definition: lis pendens literally means a pending suit, and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in a suit pending the continuance of the action, and until final judgment therein. As was observed by the Supreme Court in Jayaram's case: Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that parties litigating before it may not remove any part of the subject-matter outside the power of the Court to deal with it and thus make the proceedings infructuous.

STRIDHANA www.lawtool.net Meaning: According to Sn. 14 : 'Property' means property' acquired by a .female Hindu by inheritance, partition, maintenance, gift from any person before, at or after her marriage. It includes whatever she gets by her own skill or exertion or by purchase, prescription, etc. It also includes any property held by her as Stridhana before 1956. Origin and development: Stridhana is from "sin", woman and dhana" property Hence, it is literally woman's property. The history of Stridhana is as old as Hindu law itself. A clear enumeration of it is in Manu Smriti: Gifts before nuptial fire, gifts made at bridal procession, gifts made in token of love, gifts made by father, mother and brother. Later commentators accepted these but added a few more i.e, gifts made subsequent to marriage, sulka, ornaments etc. Vijnaneswara expanded Yagnavalkya's Text, to include property acquired by inheritance. The Privy Council deviated from Vijnaneswara and held. (1) Property inherited by a woman from a male or a female was not Stridhana. (Bhagavan Dev Vs. Mina Bai, Shivshankar Vs. Devi Sahid). (2) The share obtained on partition was not Stridhana (Mangala Prasad Vs. Mahadeva Prasad). However, the other 3 items were accepted by the courts. Whether a property was Stridhana or not depended on 1) The source of acquisition 2) Her status : maiden, wife or widow at the time of acquisition and 3) The school to which she belonged Importance: In stridhana the female has (1) absolute power of alienation to any person and (2) by succession the property goes to the stridhana heirs, after her death. This is called Soudayika. Property of female Hindu : Sn. 14 : The property of a female Hindu is held by her as absolute owner according to Sn. 14 of the Hindu Succession Act 1956. This abolishes the old Hindu Law doctrine of Widow's limited estate and makes her the absolute owner with retrospective effect. Further, the concept of 'Stridhana' is enlarged to include all properties which she acquires, and she is the absolute owner of this property also. Hence, Sn. 14 has defined the total property of the female in which she has absolute rights. i) Widows limited estate abolished. Sn. 14 provides that any property possessed by a female Hindu whether acquired by her before or after 1956, shall be held by her as full owner and not as a limited owner. Exception: The female Hindu will not be a full owner if she has acquired property by gift or under a will or a court decree which has imposed certain restrictions on the property or estate. In this section 'any property possessed' by a female Hindu is given wide meaning by the Supreme Court. The woman must have ownership with a right to possession, possession thus need not be actual, it may be constructive. It is enough if it is juridical possession. Possession should be claimed as a right and not as a trespasser. Where she is in possession in law, it would be deemed to be in possession. Hence if she is dispossessed, she has a right to recover, [of course, if her right is barred by limitation (i.e., 12 years), she cannot recover the immovable property]. The wide meaning to 'possession' was given by the Supreme Court in Kotturuswami V. Veeravva (1959). A by a will authorised his wife W, to take a boy in adoption and died. W adopted 'C'. D, relative of A and a reversioner claimed the property stating that the adoption was invalid. The Supreme Court rejected and held that (i) W became the absolute owner by virtue of Sn. 14 (ii) Even if the adoption was invalid, W was in constructive possession of A's property which is permissive. Hence, it was held that 'W was the full owner of the property. Adoption was held validand C succeeded. This interpretation has been affirmed by the Supreme Court in other cases : Eramma V. Virupanna 1959. Mangal Singh V. Ratno 1960 Dina Dayal V. Rajaram 1970 Hence, under Sn. 14, the female Hindu becomes an absolute owner if the conditions are fulfilled. Further, Sn. 14 is retrospective in operation and hence dates back to the date of her possession. Under old Hind law, the widow's limited estate called "non- saudhayika" was a typical form of an estate. The Hindu widow was entitled to the full beneficial enjoyment of her husband's property for her life. On her death, the property reverted back to her husband's heirs called reversioners. The widow had only a right to enjoy the property but had no power to alienate, except for legal necessity. This had given birth to ruinous litigation. Sn. 14 has abolished this limited estate and has made her the full owner and hence, the reversioners have disappeared.

VICARIOUS LIABILITY OF STATE Synopsis Vicarious liability of State: Old England law Vicarious liability of State: New England law Indian law Non-Sovereign functions Sovereign functions Points Vicarious liability of State: Old England law King can do not wrong. Even if he does it was not wrong. State was not liable for torts committed by its servants. This kind of protection is called sovereign immunity. The wrongdoer was personally liable but not the State. Vicarious liability of State: New England law The crown proceeding Act, 1947 had changed the position and now the State is liable for the tort committed by its servants just like the private individuals In Home Office v. Dorset Yacht Co., 1970 2 All ER 294 HC, the bookstall trainees caused damage as escaped from custody due to the negligence of the bookstall officers. Crown was held liable. Indian law Article 300 of the Constitution of India deals with the liability of the State. The Govt. of India may sue and be sued in the name of the Union of India. The Govt. of the State may sue and be sued in the name of the state. In Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India, 5 Bom HCR App 11. the servant of P & OSN Co. was driving a horse carriage on a highway in culcutta The Government servants were carrying a long iron chimney across the road. Due to the negligence of Government servants one of the horses was injured. The State was held liable Chief Justice Peacock further held that for sovereign functions the State is not liable and for non-sovereign functions the State is liable. Non-Sovereign functions RUP Ram v. the Punjab State Rup Ram was injured due to rash and negligent daiving of a Government truck was a non-sovereign. Hence, the State was held liable. In Vidyawati v. Lokumal, AIR 1957 Raj 305, the husband of Vidvawati died due to rash and negligent driving of a Government jeep was a non-so vereign function. Hence, the State was held liable. State of Punjab v. Lal Chand Sabharwal, AlIR 1975 P&H 294, some persons were arrested during save Hindi agitation. Theywere being transported in a bus. The driver of bus caused accident negligently and injured the Plaintiff. The act of driver was a non-sovereign function. Hence, the State was held liable. State of Rajasthan v. Vidyawati, AIR 1962 SC 933, the Collector's jeep returning after repairs from a workshop killed the Plaintiff husband died in the accident caused by collector's jeep on its return from workshop after repair. The High Court held that the State was liable. Because returning from workshop was a non-sovereign function it has been observed that the State should not claim immunity from liability in the welfare state. Sovereign functions State of Orissa v. Padmalochan, AIR 1975 Orissa 41, lathi-charge by police caused injured the Plaintiff. It has been held that lathi charge was a sovereign function and the State was not liable. In Kasturilal v. State of U.P, AIR 1965 SC 1039, the Meerut police arrested Kasturilal, a gold businessman. The 103 tulas of 2 mainds with his gold and of silver wrongfully on mere suspicion. The Gold was kept in police locker under the charge of Mohammad Amir, a head constable. The head constable had stolen the gold and went to Pakistan. It has been held that the State was not liable because custody of property in the police station was a sovereign function. Therefore the Government was not responsible. Rane Ghulam v. Govt. of U.P, AIR 1950 All 206, the police recovered Stolen property and the same was kept in police custody. Again it was stolen from police custody. The owner sued for compensation. High Court of U.P followed Kasthuri Lal's case and held that the State was not liable. In Pagadala Narasimham v. The Commissioner and Special Officer, Nellore Municipality, Nellore, AIIR 1994 AP 21, the Plaintiff's bus was wrongly parked. The traffic police and servants of the Municipality removed it. It has been held that removal of a wrongly parked vehicle was a sovereign function and therefore State was not liable. Rudul Shah v. State of Bihar, AIR 1983 SC 1086, Rudul Shah was acquitted in 1968, but he was wrongfully detained in the jail for 14 years. Supreme Court ordered for immediate release and awarded compensation of Rs. 35,000. Thus, the State was held liable, In Saheli v. Commissioner of Police, Delhi AIR 1990 SC 513, the police caused the death of 9 years old Naresh. Saheli, a Women's Resource Centre filed a writ petition. Supreme Court awarded Rs. 75,000 to the mother of the child. Therefore the State was held liable. Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, the police wrongfully detained Bhim Singh, an MLA. He could not attend the assembly session. The Court awarded Rs. 50,000 as compensation. In N. Nagendra Rao & Co. State of AP, 1994 6 SCC 205 It has been held that the State was liable vicariously for the negligence committed by its officers in discharge of pubic duty conferred on them under a Statute. The State cannot claim any immunity during the functions of constitutional Government. State of AP v. Challa Ramakrishna Reddy, AIR 2000 SC 2083, This case is popularly known as 'prisoner's murder case'. A prisoner informed the authorities of the jail about the apprehended danger to his life, but the authorities on this information took no action. No measures were taken for his safety and he was killed in the prison. It has been held that in the case of violation of fundamental rights, the defense of Sovereign Immunity couldn't be accepted. Therefore, the Government and the police are liable to pay compensation.

Law of Mortgages Definition of mortgage; A mortgage is the transfer of an interest in specific immovable property as security for repayment of a loan advanced or to be advanced or the performance of an engagement which may give rise to a pecuniary liability. Effect of mortgage: In the case of a simple money debt (e.g., debt on a promissory note), the lender can obtain a decree which can be executed against any property of the debtor. If the debtor alienates his property or becomes an insolvent, the creditor's rights are prejudiced. In the first case there may be no assets against which he can proceed and-4n the latter he may have to be satisfied with the dividend paid to him by the official receiver. To safeguard his position a lender insists upon security. A mortgage is a form of security. The property mortgaged is earmarked for the creditor. There is a remedy against the property as distinguished from the personal remedy. This protects the interests of the creditor. Kinds of mortgage 1. Simple mortgage: This is non-possessory. The mortgagor transfers to the mortgagee the right to bring the property to sale through court for realizing the debt. This is the remedy of judicial sale. There is also a personal covenant by the mortgagor. So if the property proves insufficient, the creditor can proceed against the mortgagor personally. The. personal decree can be executed against other property of the mortgagor. Both remedies can no doubt be pursued concurrently. But the court will stay the suit on the personal covenant until the mortgagor has exhausted his remedy against the property. So usually a petition for passing a personal decree is filed in execution after the mortgage decree for sale of the mortgaged property has been executed and it is found that the decretal dues are not satisfied. A simple mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. The period of limitation for a suit on the personal covenant is six years and for a suit for sale of mortgaged property is twelve years from the date when the money falls due. Charge: A charge arises when property without being transferred is made security for the payment of money to another. The remedy of a charge- holder is the remedy of judicial sale. There is no personal covenant. A charge, unlike a mortgage, can arise even by operation of law, e.g., vendor's charge for unpaid purchase money. A charge is not binding on transferees for value without notice of the charge. An exception to this is the vendee's charge for earnest money and for prepaid sale consideration. 2. Mortgage by conditional sale: In this the property is ostensibly sold to the mortgagee. To this ostensible sale one or other of the following conditions is attached: (1) If the money borrowed is not paid on a certain date the sale shall become absolute. (2) If such payment is made the sale shall become void. (3) If such payment is made the property should be re-transferred. In mortgages effected on or after 1 April, 1930 the condition mentioned above should be incorporated in the deed of ostensible sale itself. If it is in a separate document, though contemporaneous with the ostensible sale, the transfer cannot be regarded as a mortgage. This type of mortgage should be distinguished from a real sale with a condition for re-transfer. If it is only a mortgage the date fixed for payment is not of the essence of the transaction. Payment may be made and a re- transfer obtained even after the due date. If, on the other hand, it is a real sale, the condition as to payment on a certain date would be strictly enforced. If the amount is not repaid as agreed, the seller cannot obtain a re transfer. Whether it is an ostensible sale or a real sale will depend upon the intention of the parties. The usual way of ascertaining this intention is to consider the market value of the property on the date of the transaction. If the market value was approximately equal to the amount advanced, it is probably a real sale. If it is very much more than what is advanced, it is probably a mortgage and not a sale. The remedy of the mortgagee by conditional sale is foreclosure. Foreclosure is an order by court to the effect that the mortgagor shall be debarred from redeeming the property. This remedy can be pursued within twelve years from the mortgage money becoming due. Without a foreclosure order the mortgagee cannot become the owner of the property. The condition in the mortgage that the ostensible sale would operate as an absolute sale if there is default in payment enables the mortgagee to seek a foreclosure order from the court and cannot make him the owner of the property straightway without such an order. Before passing a foreclosure order the court gives time to the mortgagor to redeem. A preliminary decree is first made giving six months time. The time may be extended by the order of the court. When the money is not paid as directed by the court a final foreclosure decree is passed. This makes the mortgagee the owner of the property. 3. Usufructuary mortgage: This is a possessory mortgage. Possession is delivered to the mortgagee. The mortgagee can retain such possession until payment of the mortgage-money. He can receive the income from the property. The agreement of the parties may provide that the income should be appropriated in lieu of interest or in payment of the mortgage-money or partly in lieu of interest and partly in payment of the mortgage-money. If the agreement is that the income should be taken by the mortgagee in lieu of interest and defined portions of the principal, the mortgagee need notrender any account of the receipts from the property. In all other cases he has to maintain an account of the income and expenditure. He cannot get rid of this liability even by a contract with the mortgagor. A mortgagee in possession has to manage the property like a prudent owner, collecting the rents, etc. He should restore possession to the mortgagor when he has recouped his mortgage-money from the net income according to the agreement between the parties. When the agreement is that only a part of the mortgage-money is to be recovered from the income, the mortgagee usually fixes a date for payment of the balance by the mortgagor. The mortgagor on or after that date should pay the balance or deposit it in court and then the mortgagee would be liable to restore possession to the mortgagor. If the mortgagee does not do so, from that date he will be treated as a trespasser and will be liable to be evicted and has also to account for mense profits, i.e., income which he could have received, even if he had not actually received it. The usufructuary mortgagor need not go to court for he is in possession of the property and can set off the net income against his dues. Where the mortgagor fails to deliver possession of the property, then the mortgagee has the remedy of suing for possession. Further, the mortgagee in such a case can immediately sue for the mortgage money. Though there is no personal covenant, the mortgagor becomes personally liable if he fails to deliver possession to the mortgagee. This liability arises also when the mortgagor or some one claiming by a superior title dispossesses the mortgagee. 4. English mortgage: In this the mortgagor transfers the mortgaged property absolutely to the mortgagee. He binds himself to repay the mortgage-money on a certain date. Upon such payment, it is provided that the property is to be transferred to the mortgagor. In the English mortgage there is a personal covenant. The English mortgagee is entitled to the possession of the property. Since possession brings with it liability to strict accounting, usually the mortgagor is allowed to remain in possession. The remedy of the English mortgagee is to bring the property to sale. He has also the remedy on the personal covenant which enables him to proceed against other property of the mortgagor not mortgaged to him. Further, he can bring the property to sale without the intervention of the court provided neither the mortgager nor the mortgagee is a Hindu, Muslim or Buddhist. 5. Mortgage by deposit of title deeds: When a person delivers to a creditor or his agent documents of title relating to immovable property with intent to create a security, a mortgage by deposit of title deeds takes place. This avoids publicity. The transaction can be oral. In this mortgage the documents of title should be delivered in certain specified towns, viz., Calcutta, Madras, Bombay or any other town notified for that purpose by the state government concerned in the official gazette. Towns of commercial importance like Kanpur, Allahabad, Coimbatore, Madurai, Ahmedabad, Agra, Guntur, etc., have been notified. Mere delivery of title deeds with intent to create a security is sufficient. Usually, however, a memorandum is taken so that the mortgagor may not afterwards contend that he delivered the documents for some other purpose. Such a memorandum merely stating the fact of deposit as security does not require registration. If, however, it contains the terms of the mortgage transaction, if requires registration. The remedy of the mortgagee by deposit of title deeds is the remedy of judicial sale. 6. Anomalous mortgages: These are usually combinations of the types of mortgages above mentioned. The rights and remedies of the parties depend upon the terms of the transaction.

Constitutional Provisions regarding Property Rent and accommodation control The scheme of the Indian Constitution proceeds upon the distribution of legislative powers between Parliament and state legislatures. In this scheme 'land tenures' (list II, entry 18) is allotted exclusively to the states. The expression 'land tenures' does not cover the relationship of landlord and tenant in respect of buildings. This is governed by entry 6 in list III, Transfer of Property. This subject is in the concurrent legislative list and state legislature list and state legislatures have assumed jurisdiction over this subject under this entry. Rent control legislation by the states is also traceable to this power. The objects of rent restriction legislation are two- fold: (1) To protect the tenant from eviction except for defined reasons and (2) to protect him from having to pay more than fair rent. Legislation relating to control of rent can be effective only if it also regulates eviction of tenants. The Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 is an illustration of such comprehensive legislation. Land acquisition Acquisition and requisition of properties is provided by entry 42 of list III. A public purpose is a pre-condition for the exercise of this power. Ceiling on land holdings While the acquisition of "surplus" land is covered by entry 42 of list III, its subsequent distribution amongst landless peasants is governed by entry 18 of list II. Property as a fundamental right The Constitution (44th Amendment) Act, 1978 omitted article 19(1) (f), i.e., right to acquire, hold and dispose of property and the sub-heading Right to Property under article 31. The effect of this change is that the Right to Property is no more a fundamental right. A new chapter IV has been inserted in Part XII of the Constitution and the provision in article 31 has been transferred to article 300A. Thus the right to property though a constitutional right is not a fundamental right. If this right is infringed the aggrieved person cannot access the Supreme Court directly under article The new article 300A states.- "No person shall be deprived of hL· property save by authority of law". It is the only article, which was inserted by a constitutional amendment with the express purpose of creating a legal right, which is not a fundamental right. The earlier article 31 applied to all persons. The citizens were given the right to acquire, hold and dispose of property by article 19(1) (f). Both articles 19 and 31 were fundamental rights. The right to property had been changed and modified by 1st , 4th , 7th ,25t h , 39t h, 40t h , and 42n d Amendments. Most of them were aimed at nullifying the effect of judgments and doing away with the obligation of the State to pay compensation. The expression 'law', used in article 300A would mean a Parliamentary Act or an Act of the State Legislature or a Statutory Order having the force of law. The State cannot deprive a person of his property by recourse to its executive power. The power can be exercised only by authority of law and not by mere executive order.31 If it provides for the transfer of ownership or right to possession to the state or a corporation owned or controlled by the state, it should also provide for compensation to the person deprived of the property. The amount of compensation, however, is in the discretion of the legislature and its adequacy cannot be called in question in a court of law. This right to property enjoyed a greater measure of protection under the Constitution as originally adopted but it was found to be an impediment to the establishment of a socialistic pattern of society in India. Hence the right has been attenuated by constitutional amendments. Under the Twenty-fifth Amendment the word 'amount' has been substituted for 'compensation' to enable the legislature to fix whatever "amount" it likes while taking over private property for public purposes. The Supreme Court in Golak Nath v. Union ofIndiayi held that a constitutional amendment abrogating or abridging a fundamental right would be hit by article 13 (2) and so would be void. This decision overrules the earlier decision to the contrary in Shankari Prasad's case.34 The Constitution (Twenty-fourth Amendment) Act has superseded the decision in Golak Nath's case. It provides that the expression "law" in article 13 does not include a constitutional amendment. The validity of the 24th Amendment has been upheld in Kesavananda Bbarati v. State of Kerela? Fundamental rights and directive principles Fundamental rights are intended to guarantee individual liberty. Divertive principles are socialistic. They indicate the way in which the state should legislate for ensuring economic and social justice. In State of Madras v. Champakam, it was held that if a law conflicts with fundamental rights it is void even if it may have been passed for implementing the directives of state policy. In 1971 the Constitution (Twenty-fifth Amendment) Act has provided that if the law contains a declaration that it is intended to give effect to the policy embodied in article 39 clause (b) or clause (c), the law shall not be challenged on the ground that it conflicts with articles 14, 19 and 31 of the Constitution. Article 39 contains the following directive principles: (1) Citizens should have the right to an adequate means of livelihood. (2) Resources of the community should be equitably distributed. (3) Concentration of wealth should be avoided. (4) Equal wage for equal work for men and women. (5) Childhood and youth should be protected against exploitation. (6) Health and strength of workers should not be abused. To give effect to these principles even fundamental rights can be overridden by means of law. This is the effect of the Constitution (Twenty fifth Amendment) Act. The result of the 44th amendment is that the right to property cannot hereafter retard or frustrate legislative efforts for the socio- economic regeneration of our country and the achievement of a truly socialistic pattern of society based upon economic freedom and equality, in response to the challenges posed by modern times and the aspirations of the younger generation.

Landmark Judgements of Constitutional Law www.lawtool.net 1. A.K GOPALAN VS. STATE OF MADRAS, 1950 fact of thise case AK Gopalan was a Communist leader who was kept in the Madras Jail in 1950 under the Preventive Detention Law. By writ of Habeas Corpus in accordance with Article 32 of the Indian Constitution Law, he tested his detainment while contending that Sections 7, 8, 10, 11, 12, 13, and 14 of the Act abuses Articles 13, 19, and 21 of the Indian Constitution and along these lines, the said Act is ultra vires of the essential thing arrangements as revered under the Constitution of India. The solicitor further represented the issue of the Indian Constitution’s ‘method characterized by resolution’ condition. The case involved the following issues: Whether section 7, 8, 10, 11, 12, 13 and 14 are ultra-virus and violates the Art. 13, 19 and 21. Whether article 19 and 21 are interrelated to each other in the protection of life and liberty. Whether the detention of the petitioner under the Preventive Detention Act, 1950 is illegal. Whether article 22 is the complete code in itself while dealing with preventive detention cases. JUDGMENT Then again, while dismissing the applicant’s contentions, the Hon’ble Supreme Court of India fought that Article 22 of the Indian Constitution is an independent Code and that he was kept by the system set up by law. The court additionally held that if an individual’s freedom is removed by the State as per the system set up by law for example in the event that the detainment was according to the technique of law, at that point it can’t be said that it disregards the arrangements contained in Article 14, 19 and 21 of the Constitution of India. In this specific case, the Supreme Court took a restricted perspective on Article 21 of the Constitution of India. While applying the regulation of severability, the zenith court pronounced segment 14 as void as it discovers it to be unconstitutional and violative of the key rights. Court stated the rule of system set up by law and proclaimed the use of fair treatment condition and worldwide common liberties contracts unimportant in Indian premises. Further, the court proclaimed segments 7, 8, 10, 11, 12, and 13 as intrainfection the constitutions, thus legitimate. At long last, the Court found that the detainment was legitimate and thus writ was discarded in like manner. 2. SHANKARI PRASAD VS. UNION OF INDIA, 1952 fact of thise case In this case, the First Constitution Amendment Act, 1951 was tested on the ground that it abuses the Part-III of the constitution and subsequently, should be viewed as invalid. Through this revision act, certain laws were brought which were diminishing right to property. For this situation, the contention which was advanced was that according to article 13, no law can encroach or annul basic rights so in what capacity the constitutional correction can disregard it? JUDGMENT It was held by the Apex court that the force presented by Constitution under Article 368 to Parliament to alter the laws is exceptionally wide and it likewise incorporates the ability to remove the major rights ensured under Part III of Indian Constitution. Further, the Supreme Court collectively held that “The expressions of article 368 are completely broad and engage Parliament to change the Constitution with no exemption whatever. With regards to article 13, “law” must be interpreted as meaning principles or guidelines made in exercise of common authoritative force and no alterations to the Constitution made in exercise of constituent force, with the outcome that article 13 (2) doesn’t influence revisions made under article 368.” 3. GOLAK NATH VS. STATE OF PUNJAB, 1967 fact of thise case In this case, the Petitioner Golak Nath and his family claimed in excess of 500 sections of land in Punjab. Be that as it may, during then the state government made an enactment ‘Punjab Securities and Land Tenures Act’ wherein under this Act, Golak Nath and his family were not permitted to keep in excess of 30 sections of land. Along these lines, Golak Nath recorded a writ request under Article 32 of the Indian Constitution testing the legitimacy of the enactment and that his fundamental right to property was being abused. The issue was whether the parliament has the ability to revise the fundamental rights cherished under Part III of the Constitution of India or not. The candidates contended that the parliament had no capacity to alter fundamental rights, while the respondents contended that our constitution was never implied as static and non-adaptable by the constitution-creators. JUDGMENT In this case, the apex court overruled the judgment given if there should arise an occurrence of Sajjan Singh by most of six: five and held that the revision under Article 368 is ‘law’ inside the importance of Article 13(2). It was additionally governed by the Hon’ble court that Legislature detests the ability to revise Part III of the Constitution to remove or compress fundamental rights. The Supreme Court fought that Fundamental Rights are not amendable as expressed under Article 13 and further more expressed that Article 368 gives the technique to correct the Constitution yet doesn’t present on Parliament the ability to revise the Constitution. Golaknath’s dominant part see mirrors the anxiety and vulnerability in their psyches with respect to the then Parliament’s course. Various enactment that had in some affection penetrated crowded’s FR’s have been passed since the 1950 ‘s Parliament by summoning Article 368. The greater part was suspicious that in the event that Sajjan Singh remained the rule that everyone must follow, at that point a period could come when all the FRs received by our Constituent Assembly would be weakened and in the end stifled by corrections. Sajjan Singh and Shankari Prasad overruled this conceivable elimination of FR’s as a primary concern and dreading the possible progress of Democratic India to most of Totalitarian India. Consequently, to check this colourable exercise of intensity and spare Democracy from dictatorial actions of Parliament, the larger part held that Parliament can’t revise Fundamental Rights. 4. Kesavananda Bharti Sripadagalavaru vs. State of Kerala,1973 fact of thise case One of the most praised cases ‘His Holiness Kesavnanda Bharti Sripadagalavaru versus Province of Kerala, 1973 as chosen by a seat of 13 adjudicators. For this situation, the apex court managed the issue – that whether the Parliament can correct any piece of the Constitution and what was the cutoff to that power? After the phenomenal judgment of Golaknath versus Province of Punjab, the urgent Parliament to pick up its lost incomparability and self-governance passed arrangement of Amendments to by implication overrule whatever was chosen for Golaknath’s situation. The Indira Gandhi government returned in the lower house with gigantic lion’s share in 1971 races and afterwards passed the 24th Amendment in 1971, 25th Amendment in 1972 and 29th Amendment in 1972. JUDGMENT The seat by most of 7:6 overruled the dispute of the recommendation of law propounded in Golak Nath versus the State of Punjab, 1967 and held that Constitutional revision isn’t ‘law’ inside the importance of Article 13 and that however no piece of the Constitution, including Part III involving fundamental rights, was past the correcting power, the essential structure of the Constitution couldn’t be annulled even by the constitutional change. It was battled that what respects the fundamental structure, it will be chosen from case to case. Consequently, it was held that the Judiciary can strike down a revision passed by the Parliament that contentions with the fundamental structure of the Constitution. The court maintained the whole 24th Constitutional (Amendment) Act, 1971, while the initial segment of the 25th Constitutional (Amendment) Act, 1972 intra vires and a second piece of the ultra vires act, was found. The court that grasped social designing and gauged the interests of the two defendants held that neither one of the parliaments has the ability to weaken the Constitution’s Basic Structure, nor would it be able to renounce the command to make a government assistance state and an impartial society. In Golaknath, the court found that the response to the issue was left unanswered. How much the intensity of Parliament is revised. Regulation OF BASIC STRUCTURE was the reaction which the court deducted. This teaching suggests that however, Parliament has the privilege to change the whole Constitution yet subject to the condition that they can’t in any way meddle with the highlights so fundamental to this Constitution that without them it would be spiritless. To comprehend the embodiment of this precept it is of significance to comprehend Hegde and Mukherjeajj, who as they would like to think have perfectly clarified this Doctrine. As they would see it Indian Constitution is definitely not a simple political report rather it is a social record dependent on a social way of thinking. 5. Indira Gandhi vs. Raj Narain, 1975 fact of thise case It was the milestone case that made history and prompted the burden of Emergency in India from 1975 to 1977. The case scrutinized the forces of the legal executive, an exhibit of how Parliament anticipated that the legal executive should bow down before them. Parliament attempted to build up its incomparability over the span of this case however set up by the legal executive. This case addressed so numerous necessary parts of the Constitution, for example, its Basic structure, intensity of ward of courts, division of three organs of the express that are: Legislative, leader and legal executive, elements of Legislature, the option to free and reasonable races, rule of law and legal survey and ultimately, political equity. In the 1971 Lok Sabha General Elections, RajNarain was the political hopeful against Indira Gandhi for the Rae Bareilly Constituency. Indira Gandhi won the political decision and Congress, with a broad larger part, won the House. After the result of the decisions, notwithstanding, Raj Narain recorded an appeal under the steady gaze of Allahabad High Court claiming that Election malpractices had been done by Indira Gandhi. Accordingly, on 12 June 1975, under Justice Jagmohanlal Sinha, the High Court of Allahabad saw Indira Gandhi as blameworthy of abusing state apparatus u/s – 123(7) of the Representative of Peoples Act, 1951. The court accordingly decided that Indira Gandhi can’t fill in as the country’s PM and that she couldn’t run in decisions for an additional six years. Distressed by this choice, Indira Gandhi went to the Supreme Court to request this judgment of the Allahabad High Court. Nonetheless, by then, SC was on leave and allowed a contingent remains on execution on 24 June 1975. Afterwards, the Supreme Court requested the gatherings to show up before it on 11 August 1975 while giving contingent remain, yet on 10 August 1975 the President of Emergencystricken India passed the 39th Constitutional (Amendment) Act, 1971 by embeddings Article 329-A to completely ban the Supreme Court’s ward from engaging the issue. This revision made it baseless in the courts to choose the President, Prime Minister, Vice-President and Speaker of the Lok Sabha. JUDGMENT The Supreme Court of India applied the hypothesis of essential structure and appropriately struck down Clause (4) of Article 329-A which was embedded by the 39th Amendment in 1975 on the grounds that it is past the Parliament’s correcting power, as it demolishes the fundamental structure of the Indian Constitution. Indira Gandhi subsequent to being seen as liable of utilizing degenerate practices for political decision by the Allahabad High Court, made a few revisions to the Constitution which at last eliminated all the grounds on which she was charged blameworthy, she was in this manner absolved by a five-judge seat of the Supreme court. On 7 November 1975, the court gave its decision. This was the main situation when the supreme court applied the milestone choice of Kesavananda Bharti while maintaining the applicant’s case and administered Article 329A’s upbraided Clause 4 as unconstitutional. Equity Yeshwant Vishnu Chandrachud said that the alteration was discovered to be infringing upon the Separation of Power idea as it painstakingly moved an unadulterated legal function under the control of the council. In addition, it was sure that the alteration was additionally infringing upon Article 14, as it made an unjustifiable function for singular individuals against others. 6. Maneka Gandhi vs. Union of India,1978 fact of thise case In this case, the view communicated including Article 21 in A.K. Gopalan’s case was returned to the following 28 years. The fundamental issue included was whether the option to travel to another country is a piece of individual freedom under Article 21 and whether the Passport Act recommends a ‘methodology’ as needed by Article 21 of the Constitution. Identification Act, 1967 engages the specialists to seize the visa of the certain individual if such action is important in light of a legitimate concern for power and uprightness of India, the security of India, inviting relations of India with any outside nation, or overall population. The reasons of such impoundment are additionally to be imparted the influenced party anyway in light of a legitimate concern for the overall population these reasons can be retained. In the prompt case, the experts on July fourth 1977 gave a notification of impoundment of the visa of Petitioner who was a referred to writer referring to reasons as in light of a legitimate concern for the overall population. When the candidate got the notification of such seize, she returned to the specialists asking for explicit nitty-gritty explanations behind what reason her identification will be appropriated. The specialists nonetheless, addressed that the reasons are not to be indicated in light of a legitimate concern for the overall population. In this way, the applicant moved toward Supreme Court u/a 32 for the authorization of Fundamental Right referenced u/a 14 against the discretionary action of the specialists. Following were the issues brought by up in the current case: Is there any nexus between the arrangements referenced under Articles 14, 19 and 21? Extent of “Technique Established by Law.” Regardless of whether option to travel abroad lives in Article 21. Regardless of whether an authoritative law that removes Right to life is sensible. JUDGMENT It was battled by the apex court that the option to travel to another country is a piece of the privilege to individual freedom under Article 21 and furthermore decided that simple presence of an empowering law was insufficient to control individual freedom. The technique as indicated by the Hon’ble court must be ‘reasonable, just and sensible, not whimsical, harsh or subjective’. Further, the court held that segment 10(3)(c) of Passport act, 1967 is void since it disregards article 14 of Indian constitution since it gives the unclear and vague capacity to the identification authority. it is violative of Article 14 of the Constitution since it doesn’t accommodate an open door for the abused party to be heard. It was likewise held violative of Article 21 since it doesn’t avow to “strategy” as referenced in the provision, and the current technique performed was the absolute worst one. The Court, nonetheless, shunned passing any conventional answer on the issue and decided that the visa would stay with the specialists till they consider fit. 7. Minerva Mills Case, 1980 fact of thise case Minerva Mills in the territory of Karnataka was a material industry associated with the large scale manufacturing of silk garments and furthermore gave the overall population a market. Nonetheless, the Central government was dubious that the business met the standards to be characterized as a debilitated industry. In 1970, the Central Govt comprised a Committee U/s 15 of the Industries (Development and Regulation) Act, 1951 to create a full definite report inspecting Minerva Mills’ undertakings. Consequently, on 19 October 1971, the Central Government depending on the Committee’s assessment, engaged a National Textile Corporation Limited (a substance under the 1951 Act) to assume control over the administration of Minerva Mills u/s 18A of the 1951 Act. Nonetheless, the applicant couldn’t challenge the part of the 39th Constitutional (Amendment) Act, 1975, since the Parliament had before embedded Nationalization Act, 1974 into the Ninth Schedule which implies that any test on the said act was outside the domain of legal audit, and this cure was banished by 42nd Amendment. Subsequently, the fundamental issue for this situation was to check the constitutionality of the 42nd Constitutional (Amendment) Act, 1976. JUDGMENT For this situation, the Supreme Court‘s judgment was a choice that magnificently and gladly reaffirmed the matchless quality of the fundamental system of our Constitution. The judgment was given when the world’s biggest popular government had recently risen up out of the shackles of the famous Emergency, and courtesy of the ADM Jabalpur choice, the legal executive was at its breaking point. For this situation, the Validity of Constitution under the 42nd amendment which was bury alia accommodated the prohibition of legal audit of constitutional changes and explicitly gave limitless revision capacity to the Parliament was tested as it was viewed as that they are violative of the fundamental structure of the Constitution. The Court again for this situation by most of 4: 1 struck down provisos (4) and (5) of Article 368 holding that they disregarded the fundamental structure of the Constitution. It was held by the Hon’ble court that since the Parliaments power is restricted with respect to the changes they can make, in this judgment likewise it was held that the Constitution is supreme and not the Parliament. The court held that the recently presented Clause 4 and 5 were actually embedded to bar the courts to engage any test on the topic of the legitimacy of the constitutional revisions. “Our Constitution is established on a pleasant overall influence among the three wings of the state specifically the Legislature, the Executive and the Judiciary. It is the capacity of the Judges nay their obligation to articulate upon the legitimacy of laws,” attested the court. 8. IR COELHO CASE 2007 fact of thise case This consistent judgment given by a 9-judge seat drove by Chief Justice Sabharwal is otherwise called the Ninth Schedule Case. This judgment maintained the legitimacy of the Doctrine of Basic Structure proposed on account of Kesavananda Bharti. The fundamental inquiry under the watchful eye of the Court was whether it was passable for Parliament, based on the convention of the essential structure, to embed laws into the Ninth Schedule after the Kesavananda Bharati case to deliver them safe from legal audit. It is imperative to make reference to here that since the Ninth Schedule was presented, different components of agrarian change enactment were put in it, however with the coming of time, different bits of enactment were subjectively and aimlessly positioned in the Ninth Schedule to make them safe from legal audit, regardless of the fact that the vast majority of them had nothing to do with the agrarian or the socio economy changes. Along these lines, the fundamental inquiry chose for this situation was whether on and after 24/4/1973 (Kesavananda Bharti’s judgment), when the teaching of the essential structure was proposed in the State of Kerala, it was admissible for the parliament under Article 31-B to inoculate laws by embeddings them into the ninth timetable and accordingly outside the domain of the courts and, provided that this is true, what was its impact on the intensity of legal survey of the court. JUDGMENT The Apex Court while recognizing the legal command identifying with the precept of the essential structure and the intensity of legal audit, held that after 24 April 1973, the laws set down in the Ninth Schedule would not appreciate full insusceptibility, however that the court would analyze the nature and degree of the encroachment of a fundamental right by a rule. Further, the court likewise affirmed that the constitutional legitimacy of the laws of the ninth timetable could be dictated by applying the immediate trial of impact and impact, for example the trial of rights, which necessitates that the determinative factor isn’t the type of a law, however its impact. The court must choose whether this obstruction is defended and if the essential structure is disregarded. As expressed, the court’s job is “to decide if attack was vital by the court and, provided that this is true, how much.” This position at that point serves to move the assurance of the requirement for the law from the Parliament to the courts for choice. It likewise permits the courts the adaptability of both the rights test and the pith of rights test in managing the legitimacy of such cases. 9. SHAYARA BANO VS. UNION OF INDIA AND ORS. ,2017 fact of thise case For this situation, the applicant, Shayara Bano was hitched for a very long time. Notwithstanding, in 2016, her better half separated from her through talaq–e-bidat (triple talaq), an Islamic practice that licenses men to self-assertively and singularly impacts moment and permanent separation by articulating the word ‘talaq’ multiple times without a moment’s delay in oral, composed or, all the more as of late, electronic structure. The candidate contended under the watchful eye of the apex court that the three practices for example triple talaq, polygamy, and nikah halala (the practice expecting ladies to wedding and separation another man with the goal that her past spouse can re-wed her after triple talaq) – were unconstitutional. She further contended that they abused a few fundamental rights under the Constitution of India for example Articles 14 (correspondence under the watchful eye of the law), 15(1) (disallowance of segregation remembering for the ground of sex), 21 (right to life) and 25 (opportunity of religion). The request likewise featured concerning how these conventional practices of Islamic men block the Muslim Women’s rights too. Judgment The court with a 3:2 proportion, where the greater part held that the practice of Triple Talaq is unconstitutional and abuses Muslim ladies’ fundamental rights. It found that Triple Talaq practice isn’t basic to religion. Subsequently, as indicated by the larger part, it was held that under Article 25 of the Indian Constitution, triple talaq was not to be ensured as it’s anything but a fundamental component of the religion. In fact, this is viewed as a wicked practice by the Hanafi school of Muslims. Further, it was mollified by the apex court that this type of Talaq is discretionary and disregards the fundamental rights as cherished under Article 14 of the Indian Constitution. In this manner, it is censured. Read Also: Facts About the Constitution of India that Every Law Aspirant Should Know 10. NAVTEJ SINGH JOHAR VS. UNION OF INDIA,2018 ISSUE fact of thise case The constitutional legitimacy of Section 377 of the Indian Penal Code, 1860 (Section 377) was the focal issue of the case, insofar as it applied to the consensual sexual conduct of grown-ups of a similar sex in private. Segment 377 was named ‘Unnatural Offenses’ and expressed that ‘any individual who deliberately has fleshly intercourse with any man, lady or creature against the request for nature will be rebuffed with life detainment or detainment of one or the other portrayal for a term of as long as ten years, and will likewise be obligated to a fine.’ Judgment The moment case as conveyed by a five-judge seat gave a noteworthy choice on Section 377 of Indian Penal Code, which decriminalized homosexuality. It was fought by the Apex court that the current arrangement u/s 377 of the Indian Penal Code condemns sexual acts of grown-ups in private for example condemns gay intercourse, it was held that it is violative of Articles 14, 15, 19 and 21 of Indian Constitution. It was expressed by the Hon’ble court that since fundamental rights are the essential structure and whatever other arrangement which abuses the arrangements under Part III will be considered to be ultra-vires and consequently Section 377 was given constitutional ethical quality and homosexuality was decriminalized as needs be. Further, the Supreme Court turned around the Delhi High Court decision in 2013 in it Suresh Koushal judgment and held that the choice of decriminalizing homosexuality must be finished by the Parliament and not the Court. It likewise held that Section 377 condemns certain acts and no specific class of individuals. It likewise implied the infinitesimal number of individuals who were individuals from the LGBTI people group and the fact that lone a fraction among them had been indicted under Section 377. Consequently, on sixth September, 2018 the fivejudge Bench incompletely struck down Section 377 of the Indian Penal Code, decriminalizing same-sex relations between consenting grown ups. LGBT people are presently lawfully permitted to participate in consensual intercourse. The Court has maintained arrangements in Section 377 that condemn nonconsensual acts or sexual acts performed on animals.

Doctrine of subrogation WWW.LAWTOOL.NET Subrogation means substitution. The doctrine of subrogation enables a person to stand in the shoes of a creditor whom he has paid off a claim to be entitled to all the remedies open to that creditor in respect of securities held by him. In other words, where the rights of subrogation exist, the discharged incumbrance is treated as kept alive and its benefit transferred to the subrogee, i.e., the person who has paid it off. Reason for recognition of the doctrine of subrogation: If a person advancing money to pay off an incumbrance is not subrogated to the rights and remedies of the discharged creditor, subsequent incumbrancers gain -priority to his detriment. The discharge of a charge on the estate by a tenant for life would operate as a gift to those in remainder unless the discharged incumbrance is preserved and kept on foot for his benefit. The doctrine of subrogation, which obviates such hardships, is founded in great equity. Legal and conventional subrogation: When the substitution of one creditor for another takes place by agreement or act or parties, the subrogation is designated conventional or consensual. Apart from and independently of agreement between the parties, on principles of equity and justice, a person who discharges a mortgage debt is given, in certain circumstances, the benefit of the security discharged by him. Such substitution of creditors by operation of law is generally known as legal subrogation. If a person who has an existing interest in the property by virtue of which he is entitled to redeem a mortgage on it, discharges the mortgage, a claim to legal subrogation may be sustained. In such a case no registered instrument is required to confer the right of subrogation. On the other hand where a person who has no interest in the property and so no right to redeem, advances money to the mortgagor for discharging a mortgage, the claim to subrogation can only be based on convention or agreement which is now required to be in writing and registered. Before section 92 was inserted by the amending Act of 1929, a claim to conventional subrogation could be based upon an express agreement and even that should be evidenced by a registered instrument. This is an important change effected by the Act of 1929. The last paragraph of section 92 makes it clear that there can be no claim to partial subrogation. That is, a claim to subrogation can be put forward only when the mortgage to which the claim relates has been fully discharged. In view of the requirement of a registered document for the recognition of a claim to conventional subrogation, the question whether the section is retrospective assumes importance. Now it is an agreed position that section 92 as amended does not apply to transactions concluded before 1 April, 1930, which were the subject matter of suits pending on that date.27 "A volunteer" cannot claim subrogation: A volunteer is one who has paid the debt of another without obtaining any assignment of the debt from the creditor and without any agreement for subrogation with the debtor, and without having any rights of his own. When a person has a pre-existing interest in the property, he can redeem and claim legal subrogation. If there is an agreement (which from 1 April, 1930 should be by a registered instrument) for subrogation, he can claim conventional subrogation even though he may have no pre-existing interest in the property. In other cases he is only a volunteer and is not entitled to the equitable right of subrogation for "there is no equity in favour of a volunteer".

“A prospectus means any document describe or issue as a prospectus and includes any notice, circular, advertisement or other documents inviting deposits from the public or inviting offers from the public for the subscription or purchase of shares in or debentures of a day corporate.” Introduction From the above definition, it is clear that a prospectus is a document that invites the public to subscribe to the share capital or debentures of a company. If it does not do that, it cannot be called a prospectus. According to the Companies (Amendment) Act, 1971, an invitation to the public inviting deposits is also deemed to be a prospectus. Some companies do not directly to the public themselves, but allot the entire share capital to an intermediary, which then offers the shares to the public by an advertisement of its own. Any document by which such offer for sale to public is made is deemed to be a prospectus. After getting the company incorporated, promoters will raise finances. The public is invited to purchase shares and debentures of the company through an advertisement. A document containing detailed information about the company and an invitation to the public subscribing to the share capital and debentures is issued. This document is called ‘prospectuses. Private companies cannot issue a prospectus because they are strictly prohibited from inviting the public to subscribe to their shares. Only public companies can issue a prospectus. Section 2 (36) of the Companies Act defines prospectus as, “A prospectus means any document described or issued as prospectus and includes any notice, circular, advertisement or other documents invent deposits from public or inviting offers from the public for the subscription or purchase of any shares in or debentures of a body corporate.” The prospectus is not an offer in the contractual sense but only an invitation to offer. A document constructed to be a prospectus should be issued to the public. A prospectus should have the following essentials. • There must be an invitation offering to the public. • The invitation must be made on behalf of the company or intended company. • The invitation must to be subscribed or purchase. • The invitation must relate to shares or debentures. A prospectus must be filed with the Registrar of companies before it is issued to the public. The issue of prospectus is essential when the company wishes the public to purchase its shares or debentures. If the promoters are confident of obtaining the required capital through private contacts, even a public company may not issue a prospectus. The promoters prepare a draft prospectus containing required information and this document is known as ‘a statement is lieu of prospectus.’ A prospectus duly dated and signed by all the directors should be field with Register of Company before it is issued to the public. A prospectus brings to the notice of the public that a new company has been formed. The company tries to convince the public that it offers best opportunity for their investment. A prospectus outlines a detail the terms and conditions on which the shares or debentures have been offered to the public. Every prospectus contains an application from on which an intending investor can apply for the purchase of shares or debentures. A company must get minimum subscription within 120 days from the issue of prospectus. If it fails to obtain minimum subscription from the members of the public within the specified period, then the amount already received from public is returned. The company cannot get a certificate of commencement of business because the public is not interested in that company. Object of a prospectus The objects of issuing a prospectus are as under: 1. To invite the public to invest in the shares or debenture of a market. 2. To give a bureau of a condition on which the public is invited to invest in shares and debentures. 3. To make a declaration that the directors of the company are liable for the condition stated in the prospectus. Nature of prospectus: As said earlier that the prospectus is an invitation to the public to invest in the shares or debentures of a company. But the term public is nowhere defined in the Companies Act. So, far as it is related to prospectus, public is meant to be the ordinary common people. Whether or not the invitation for investment is made to the ‘public’ depends upon some situation, such as: 1. How many copies of the prospectus were printed? 2. To how many members of the public were the copies distributed. 3. How many members of the public accepted the copies? 4. Under what conditions did the member of the public accept the prospectus? When the prospectus need to be issued In the following situation, there is no need for a prospectus to be issued. 1.When the shares and debentures are to be allotted to the existing holders of shares and debentures. 2.When the shares and debenture to be allotted are similar to the current (already issued) shares and debentures that are being traded in a recognized stock exchange. 3.When the allotment of shares and debenture is not permissible by law as in the case of a private company. 4.When the invitation is to some such person who has a contract for underwriting the shares and debentures of the company. Golden rule in prospectus Prospectus is the basis of the contract between the company and the person’s who incest in the company’s shares or debentures. The officers of the company have knowledge of the company’s present status and its prospects in future or have the means to acquire such knowledge. But the potential investor has no such knowledge, nor the means to acquire it. It, therefore, becomes the duty of those who issue the prospectus that they not only projects the company’s image in the right perspective but also makes sure that no vital information which could be of interest to the potential investors in the company’s shares and debentures is left out from the company’s prospectus. it therefore become important that the prospectus states the basic important facts about the company with utmost honesty and good faith and that no information that is important is twisted or partially presented. That is what is refers to as the ‘golden rule for making a prospectus’. In short the following must be kept in mind when preparing the prospectus of a company: 1.The prospectus must be an honest statement of the company’s profile; there must be no misleading, ambiguous or erroneous reference to the company in its prospectus. 2.Every important aspect of a contract of the company should be clarified. 3.The contents of the prospectus should conform to the provision of the Companies Act. 4.The restrictions on the appointment of directors must be kept in mind. 5.The conditions of civil liability as laid down must be strictly adhered to issue and registration of prospectus or legal requirement regarding issue of prospectus. Legal requirement regarding issue of prospectus: The Companies Act has defined some legal requirements about the issue and registration of a prospectus. The issue of the prospectus would be deemed to be legal only if the requirements are met. 1.Issue after the incorporation: As a rule, the prospectus of a company can only be issued after its incorporation. A prospectus issued by, or on behalf of a company, or in relation to an intended company, shall be dated, and that date shall be taken as the date of publication of the prospectus. 2.Registration of prospectus: it is mandatory to get the prospectus registered with the Registrar of Companies before it is issued to the public. The procedure of getting the prospectus registered is as under: a.A copy of the prospectus, duly signed by every person who is named therein as a director or a proposed director of the company must be filed with Registrar of Companies before the prospectus is issued to the public. b.The following document must be attached thereto: (i) Consent to the issue of the prospectus required under any person as an expert confirming his written consent to the issue thereof, and that he has not withdrawn his consent as aforesaid appears in the prospectus. (ii) Copies of all contracts entered into with respect to the appointment of the managing director, directors and other officers of the company must also be filed with Registrar. (iii) If the auditor or accountant of the company has made any adjustments in the company’s account, the said adjustments and the reasons thereof must be filed with the documents. (iv) There must be a copy of the application which is to be filled for the issue of the company’s shares and debentures attached with the prospectus. (v)The prospectus must have the written consent of all the persons who have been named as auditors, solicitors, bankers, brokers, etc. c. Every prospectus must have, on the face of it, a statement that: (i) A copy of the prospectus has been delivered to the Registrar for registration. (ii) Specifies that any documents required to be endorsed by this section have been delivered to the Registrar. d.A copy of the prospectus must be filed with the Registrar of Companies. The Registrar should register the prospectus only when: (i) The prospectus is dated. The date shall, unless the contrary is proved, be taken as the date of publication of the prospectus. (ii) The contents of prospectus conform to Section 56 of the Act. (iii) The consent of the expert, if it is necessary, has been obtained. But such expert should not be engaged or interested in the formation or promotion of the company. (iv) The written consent of the expert with respect to the issue of his statement included in the prospectus has been obtained. If the above provision of law has been fulfilled, or the necessary documents have nit been attached, the Registrar can refuse to register the company’s prospectus. e. According to the Section 60(4), no prospectus shall be issued more than ninety days after the date on which a copy thereof is delivered for registration. Of the prospectus is so issued. It shall be deemed to be a prospectus a copy of which has not been delivered to the Registrar. If a prospectus issued in contravention of the above –stated provisions, then the company and every person who knows a party to the issue of the prospectus shall be punishable with a fine. Contents of prospectus The main contents of a prospectus are: 1. Main object of the company with the names, addresses, description and occupation of signatories to the memorandum and the number of shares subscribed for by them. 2. Number and classes of shares and the nature and extent of the interest of holders thereof in the property and profits of the company. 3. The number of redeemable preference shares intended to be issued and the date of redemption or where no date is fixed; the period of notice required for redeeming the share s and proposed method of redemption. 4.The number of shares. If any, fixed by the Article as the qualification of a director and the remuneration of the directors for the service. 5.The names, occupation and addresses of directors, managing director and manager together with any provision in the Articles or a contract regarding their appointment remuneration or compensation for loss of office. 6.The time of opening of the subscription list should be given in the prospectus. 7. The amount payable on application and allotment on each share should be stated. If any prospectus is issued within two years, the details of the shares subscribed for any allotted. 8.The particular about any option or preferential right to be given to any person to subscribe for shares or debentures of the company. 9. The number of shares or debentures which within the two preceding year been issued for a considerations other than cash. 10. Particulars about premium received on shares within two preceding years or to be received. 11. The amount or rate of underwriting commission. 12. Preliminary expenses. 13. The names and addresses of auditors, if any, of the company. 14. Where the shares are of more than one class, the rights of voting and rights as to capital and dividend attached to several classes of shares. 15. If nay reserve or profits of the company have been capitalized, particulars of capitalizations and particulars of the surplus arising from any revaluation of the assets of the company. 16. A reasonable time and place at which copies of all accounts on which the report of auditors is based may be inspected. Conclusion A public company raises its capital from the public and it issues prospectus for this purpose. Sometimes, the promoters of a company decide not to approach the public for raising necessary capital. They are hopeful of raising funds from the friends and relations or through underwriters. In that case a prospectus need not be issued but a Statement in Lieu of Prospectus must be filed with the registrar at least three days before the first allotment of shares. Such a statement must be signed by every person who is named therein as a director or proposed director of the company. This statement will be drafted strictly in accordance with the particulars set out in a part I of Schedule III of the Act.

Definition of One Person Company (“OPC”) Section 2(62) of the Companies Act, 2013 (“Act”) defines OPC as a company which has only one person as a member. ONE PERSON COMPANY (OPC) COMPANIES ACT, 2013 Passed in Lok Sabha on 18th December, 2012 Passed in Rajya Sabha on 8th August, 2013 Received Ascent of President 29th August, 2013. The act has 470 clauses and 7 schedules as against 658 Sections and 15 schedules in the existing Companies Act, 1956. The entire act has been divided into 29 chapters . INTRODUCTION The introduction of OPC in the legal system is a move that would encourage corporatization of micro businesses and entrepreneurship with a simpler legal regime so that the small entrepreneur is not compelled to devote considerable time, energy and resources on complex legal compliances. This will not only enable individual capabilities to contribute economic growth, but also generate employment opportunity. One Person Company of sole-proprietor and company form of business has been provided with concessional /relaxed requirements under the Companies Act, 2013.With the implementation of the Companies Act, 2013, a single national person can constitute a Company, under the One Person Company (OPC)concept. DEFINITION As per provision of section 2(62) of the Companies Act, 2013 defined (62) “one person company” means a company which has only one person as member. FORMATION OF OPC [Rule 3] Only a natural person who is an Indian citizen and resident in India­­- shall be eligible to incorporate a One Person Company; shall be a nominee for the sole member of a One Person Company. The term “resident in India” means a person who has stayed in India for a period of not less 182 days immediately preceding one calendar year. STAGES OF INCORPORATION OF OPC Name reservation: Form INC-1 shall be filed for name availability. Incorporate OPC: After name approval, form INC-2 shall be filed for incorporation of the OPC within 60 days of filing form INC-1. Form DIR-12 shall be filed along with (linked) form INC-2 except when promoter is the sole director of the OPC. The company shall file form INC-22 within 30 days once form INC-2 is registered in case the address of correspondence and registered office address are not same. SALIENT FEATURES OF OPC One person cannot incorporate more than one OPC or become nominee in more than one OPC. No minor shall become member or nominee of the One Person Company or hold share with beneficial interest. No such company can convert voluntarily into any kind of company unless 2 years have expired from the date of incorporation, except in cases where capital or turnover threshold limits are reached. It must have only one member at any point of time and may have only one director. PRIVILEGES AVAILABLE TO OPC The most significant reason for shareholders to incorporate the ‘single-person company’ is certainly the desire for the limited liability. Businesses currently run under the proprietorship model could get converted into OPCs without any difficulty. Mandatory rotation of auditor after expiry of maximum term is not applicable. One Person Company needs to have minimum of one director. It can have directors up to a maximum of 15 which can also be increased by passing a special resolution as in case of any other company. The provisions of Section 98 and Sections 100 to 111 (both inclusive), relating to holding of general meetings, shall not apply to a One Person Company. Minimum authorized share capital required for One Person Company having share capital is Rs. 1,00,000/-. Minimum and maximum number of members for One Person Company is one only. PROHIBITED ACTIVITIES Such Company cannot be incorporate or converted into a company under section 8 of the Act. Such Company cannot carry out Non-Banking Financial Investment activities including investment in securities of any body corporate. ONE PERSON COMPANY TO CONVERT ITSELF INTO A PUBLIC COMPANY OR A PRIVATE COMPANY IN CERTAIN CASES (RULE 6) 1. Compulsory conversion of OPC Where the paid up share capital of an One Person Company exceeds Rs. 50 lacs or its average annual turnover exceeds Rs. 2 crores immediately preceding three consecutive financial year; Such OPC shall required to convert itself, into either private company or public company in accordance with the provision of section 18 of the Act within 6 month of the date as mention above. The OPC shall alter its memorandum and articles by passing a resolution in accordance with section 122(3) of the Act to give effect to the conversion and to make necessary changes incidental thereto; The OPC shall within period of sixty days from the date of applicability of above provisions, give a notice to the Registrar in Form No. INC. 5informing that it has ceased to be a OPC and that it is now required to convert itself into a private company by virtue of its paid up share capital or average annual turnover, having exceeded the threshold limit laid down above. 2. Voluntary conversion of OPC A One Person Company can get itself converted into a Private or Public company after increasing the minimum number of members and directors to two or minimum of seven members and two or three directors as the case may be, and by maintaining the minimum paid up capital as per requirements of the Act for such class of company and by making due compliance of section 18 of the Act for conversion. CONVERSION OF PRIVATE COMPANY INTO ONE PERSON COMPANY [RULE 7] A Private company other than a company registered under section 8 of the Act having paid up share capital upto Rs. 50 lacs or average annual turnover during the relevant period upto Rs. 2 crore may convert itself into One Person Company by passing a special resolution in general meeting. Before passing such resolution the company shall obtain No Objection in writing from members and creditors. The one person company shall file copy of the special resolution with the Registrar of companies (ROC) within 30 days from the date of passing such resolution in Form No. MGT 14. The Company shall file an application in Form No. INC. 6 for its conversion into One Person Company along with fees specified, by attaching following documents, namely:- the directors of the company shall give a declaration by way of affidavit duly sworn in confirming that all members and creditors of the company have given their consent for conversion, the paid up share capital of the company is Rs. 50 lacs or less or average annual turnover is less than Rs. 2 crore or less, as the case may be; the list of members and list of creditors; the latest Audited Balance Sheet and the Profit and Loss Account; and the copy of No Objection letter of secured creditors. On being satisfied and compiled with requirements stated herein the Registrar shall issue the Certificate. Following sections are not applicable to OPCs- 98 (Power of Tribunal to call meetings of members, etc.) 100 (Calling of EGM) 101 & 102 (Notice of Meeting & Statements to be annexed to Notice) 103 (Quorum of Meetings) 104 (Chairman of Meetings) 105 (Proxies) 106 (Restriction on Voting Rights) 107 & 108 (Voting by show of Hands & by Electronic Mode) 109 & 110 (Demand for Poll & Postal Ballot) 111 (Circulation of Member’s Resolutions)

Lifting the Corporation Veil: Piercing the corporate veil or lifting the corporate veil is a legal decision to treat the rights or duties of a corporation as the rights or liabilities of its shareholders. Usually a corporation is treated as a separate legal person, which is solely responsible for the debts it incurs and the sole beneficiary of the credit it is owed. Common law countries usually uphold this principle of separate personhood, but in exceptional situations may "pierce" or "lift" the corporate veil. A simple example would be where a businessman has left his job as a director and has signed a contract to not compete with the company he has just left for a period of time. If he sets up a company which competed with his former company, technically it would be the company and not the person competing. But it is likely a court would say that the new company was just a "sham", a "cover" or some other phrase, and would still allow the old company to sue the man for breach of contract. Despite the terminology used which makes it appear as though a shareholder's limited liability emanates from the view that a corporation is a separate legal entity, the reality is that the entity status of corporations has almost nothing to do with shareholder limited liability. For example, English law conferred entity status on corporations long before shareholders were afforded limited liability. Similarly, the Revised Uniform Partnership Act confers entity status on partnerships, but also provides that partners are individually liable for all partnership obligations. Therefore, this shareholder limited liability emanates mainly from statute. i) The fundamental principle is that an incorporated Company is a legal person and all its actions are that of the Company. The Company is distinct and separate from them in respect of capacity, rights acquired etc (Solomon's case). Taking advantage of this, the directors or officers may use the company as a mask or cloak for fraudulent or illegal activity. In such a case, the court will pierce through the veil to know the reality. This principle is regarded as a curtain or veil between the company and its members. This is the protection enjoyed by the members for the liability of the company. Thus, when there is abuse or misuse by members, they may escape liability but the company would be liable. Here the Court will pierce or lift the screen (Veil) to see the transactions inside the screen. In such a case the protection given to such Director or Officer is taken away and he becomes liable. ii) Circumstances to lift the Veil: a) To find out the enemy character of the Company. This means, during war the Courts may lift the screen to know the persons inside and their character. If they belong to enemy State, the company also has the enemy character. Hence, it will be banned (Dailmer Co. V. Continental Tyre & Rubber Co.). b) Tax evasion : If the objective of formation of the Company is tax evasion, then the Courts may tear the Corporate veil. In Dinshaw Maneckji's case, the. court held that the four Companies formed by him, were to avoid super-tax. In Harald Holdsworth V. Caddies, though there were several subsidiary companies, in reality there was only one Company. Other cases: firestone Tyre & Ruber Co. V. Llewton; Com. of I.T. V. Sri Meenakshi Mills. c) Fraud or improper conduct: The court may pierce the Veil to find out whether the Company was formed to defraud, or to avoid legal obligations. Such sham Companies have no legal status. The leading case is Gilford Motor C. V. Home. H was an employee of G. Company, but left the job under an agreement not to solicit the customers of G. Company. H. formed a Company carried on a similar business and solicited the customers of G Company. G company sued and the House of Lords granted an injunction against H Company. Though H was bound under an agreement and H Company was separate, still in reality, i.e., by lifting the veil, the court said H Company was a sham or a cloak to engage in business and to solicit the customers of G Company. d) Agency or trust: When the company is used as an agency or trust the veil may be lifted. A govt. Company discharging Sovereign functions is a trusteeand hence, courts may lift the screen, to know the functions. If the Company is acting as an agent of the shareholders, theshareholders become liable (Smith Stone etc. V. Brimingham Corporation). iii) Personal liability of persons: This liability is fixed on the persons in charge of the management by Statutes. These persons are personally liable. Hence the screen can be lifted, to know the persons responsible.

Alteration of Article of Association of a Company Section 14(1) of the Companies Act, 2013 lays down that subject to the provisions of this Act and the conditions contained in its memorandum, if any, a company may, by a special resolution, alter its articles including alterations having the effect of conversion of Any company who is intending to make any changes to the Articles of Association (AOA) of its company, will have to comply with the provisions of section 14 of the companies act 2013 and any other applicable provisions of theAct including fulfillment of conditions as may be contained in the Memorandum of Association (a) a private company into a public company; or (b) a public company into a private company. A Company may alter its Articles in accordance with the above provisions in any of the manners mentioned below: a) by adoption of new set of articles; b) by addition/insertion of a new Clause/s; c) by deletion of a Clause/s ; d) by amendment of a specific Clause/s ; e) by substitution of a specific Clause/s . Key Considerations: Any change in the Articles of the company shall conform to the provisions of the Companies Act, 2013/1956, as applicable and the conditions contained in the Memorandum of Association of the company. (Section 14(1) For effecting any change in the AOA resulting in the conversion of private company into a public company or vice-versa, company shall additionally follow the procedure prescribed for the conversion of private company into a public company or vice-versa. By amendment, Company may insert provisions for entrenchment to the effect that specified provisions of the articles may be altered only if conditions or procedures as that are more restrictive than those applicable in the case of a special resolution, are met or complied with. (Section 5(3) The provisions of entrenchment can be inserted only if agreed to by all the members of the company in the case of a private company and by a special resolution in the case of a public company.(Section 5(4) The following procedure is to be followed for alteration of AOA under Section 14 of Companies Act, 2013 – 1. Issue not less than 7 days notice and agenda of Board meeting, or a shorter notice incase of urgent business, in writing to every director of the company at his address registered with the company and call a Board Meeting to consider the proposal of alteration of articles of association of a company . (Section 173(3). Also follow the procedure prescribed for issuing and signing of notice of Board Meeting. 2. Hold a meeting of Board of Directors- To consider and decide the articles required to be changed/altered. To pass the necessary Board Resolution for approving proposal of alteration of articles of association of a company subject to the approval of Shareholders. To delegate authority to any one director of the company to sign, certify and file the requisite forms with Registrar of Companies or any statutory authority to do all such acts, deeds as may be necessary to give effect to the proposed alteration. To fix day, date, time and venue for holding general meeting of the Company for passing a special resolution as required by section 14 of the Companies Act, 2013. To approve the draft notice of general meeting along with explanatory statement annexed to the notice as per requirement of the Section 102 of the Companies Act, 2013. To authorize the Director or Company Secretary to sign and issue notice of the general meeting. 3. Prepare and circulate draft minutes within 15 days from the date of the conclusion of the Board Meeting, by hand/speed post/registered post/courier/e-mail to all the Directors for their comments. Alsofollow the procedure prescribed for preparing, circulation, signing and compiling of Board Minutes.(Secretarial Standards-1 ) 4. Send notice of the General meeting proposing the aforementioned special resolution to all the shareholders, directors, auditors and other persons entitled to receive it, by giving not less than clear 21 days notice or shorter notice, if consent for shorter notice is given by at least 95% of members entitled to vote at such meeting, either in writing or through electronic mode in accordance with the Section 101 of the Act. Also follow the procedure prescribed for issuing and signing of notice and convening of General Meeting. 5. Hold a shareholders meeting on the date fixed for the meeting and pass the Special Resolution for altering the Articles of Association by 3/4th majority or unanimously, in case of insertion of provisions of entrenchment by a private company in accordance with Section 114 (2) of the Act read with Section 5(4). 6. After passing special resolution, file a certified copy of special resolution with the Registrar in E-Form No. MGT.14 under Section 117 of the Act within 30 days of passing Special Resolution in general meeting along with the following attachments: a. Copy of Special Resolution passed along with Explanatory Statement. b. Notice for convening the General Meeting of the Company c. Altered Articles including the provisions of entrenchment inserted in the articles, if any. d. Shorter Notice Consent Letters from the members in case the General Meeting was convened at shorter notice. e . Any other attachment as may be applicable. 7. Follow the procedure prescribed for preparing, signing and compiling of minutes of General Meeting. 8. Make necessary amendments in all the copies of Articles of association of the Company .[Section 15(1)] Note: 1. Where a private company alters its articles in such a manner that they no longer include the restrictions and limitations which are required to be included in the articles of a private company under this Act, the company shall, as from the date of such alteration, cease to be a private company. (First proviso to Section 14(1) 2. Any alteration having the effect of conversion of a public company into a private company shall not take effect except with the approval of the Tribunal which shall make such order as it may deem fit.(Second proviso to Section 14(1). 3. For effecting theconversion of a private company into a public company or vice versa, company shall file the application in Form No.INC.27 with fee. [Section 14 and Rule 33 of Companies (Incorporation) Rules, 2014] (Pl. also refer Procedure for conversion of a Public Company into a Private Limited Company or vice-versa)

Royal British Bank v. Turquand Turquand, a company, had a clause in its constitution that allowed the company to borrow money once it had been approved and passed by resolution (decision)of the shareholders at a general meeting. Turquand entered into a loan with the Royal British Bank and two of the co-directors signed and attached the company seal to the loan agreement. Loan had not been approved by the shareholders. Company defaulted on their payments and the bank sought restitution. Company refused to repay claiming that the directors had no right to enter into such an arrangement It was held that – the Turquand was entitled to assume that the resolution was passed. The Company was therefore bound by the rule. in this case, the director of a banking company were authorized by the articles to borrow on the bond such sums of money as should from time to time by resolution of company in a general meeting be authorized to borrow. the director gave a bond to Turquand without the authority of any such resolution it was held that Turquand could sue the company on the strength of the bond as he was entitled to assume that the necessary resolution had been passed .Lord hatherly observed- outsider are bound to know the external position of the company but are not bound to know its Indoor managment the Doctrine is the great importance in the world of Commerce because in it absence the general plight Further of the person dealing with the company would have been miserable because the company very often could have escaped liability by the denying(reject) the authority of the officials to act of its behalf

The role of the doctrine of indoor management is opposed to that of the rule of constructive notice. The latter seeks to protect the company against the outsider; the former operates to protect outsiders against the company. The rule of constructive notice is confined to the external position of the company and, therefore, it follows that there is no notice as to how the company’s internal machinery is handled by its officers. If the contract is consistent with the public documents, the person contracting will not be prejudiced by irregularities that may beset the indoor working of the company. Indoor Management: As M/A & A/A of a Company are Public documents, there is a presumption that those who deal with the company are having 'Constructive notice' of their contents. This protects the company from outsiders. The doctrine of indoor management is opposed to the rule ofconstructive notice. It aims at protecting the outsiders against the Company's irregularities, Commissions and excesses. According to this strangers may assume that the proceedings are and everything is regularly done. The leading case is Royal British Bank V. Turquand : In this case, the Directors borrowed money from the Plaintiff. The M/A of the Company had provided that the Directors might borrow, on bond, such sums as are authorised by the shareholder's resolutions. The shareholders contended that there was no such resolution and hence not liable. The Court rejected this and held that the company was liable. This is called the 'Turquand Rule'. The court held, that when there is a provision to borrow there is a presumption, that the formalities have been observed by the directors, hence, they are acting lawfully(in bonam part em). Though the M/A and A/A are open for inspection by the public, the details of internal procedure are not so open. Hence, an outsider cannot know the day-to-day internal matters as he has no access to them. The doors are closed to him. Hence, the courts have evolved the rule of 'Indoor Management'. The rule is based on convenience, practical utility and justice. No Company should be allowed to take advantage of its own commission and omissions. Other examples are : Defective appointment of a Director, Defacto exercise of Power, lack of quorum, etc. Outsiders cannot enquire into the regularity or otherwise of internal proceedings. Delegated Power: Power may be delegated expressly or impliedly. The Company is liable when such a power is exercised by a delegated person. The outsider dealing with the Company may rely on the authority of such officer of the company as delegatee. However (i) the transaction should be one which normally falls within his authority and (ii) The A/A should have allowed such delegation. How the power is delegated, what formalities are observed is within indoor management and hence third party is protected. In Freeman V. Buckhurst: K and H formed a Company to improve an estate and sell. H went abroad. K appointed architects and surveyors, who did their jobs and claimed their fees. The plea that K had no powers was rejected by the Court. K had held out to be a Managing Director having such powers. Hence the Company was held liable. Exceptions to the Rule: i) Knowledge of irregularity: If the person who contracted with the company was himself a party to the inside procedure, the rule will not apply. In Howard V. Patent Ivory Mfring Co., the debentures required the resolution of a general body. Held, he could not take advantage of indoor management. The court held that the Company was not liable to D. The reason was, he had knowledge of the irregularity. ii) Suspicion of irregularity: This becomes clear from the circumstances of each case. D, a Director of two Companies transferred money from one to the other to pay off a debt; the court held that this was unusual and bad. Irregularity was patent. iii) Forgery: The rule is not applicable to cases of forgery, committed by the officers of the Company. In Ruben's Case, two directors to roged the signature of another Director on the share certificate and negotiated the same. Held, Company not liable. iv) Third Party's Ignorance of A/A : It is still a controversial issue. But, if the Director had ostensible authority, the company cannot escape liability to third parties (Rama Corporation case). v) Acts outside authority: If an officer of the company acts patently beyond his powers, the indoor management rule cannot be invoked. In Anand Bihari V. Dinshaw, the company's property was transferred by an accountant. Held, this was void. Even a delegation of power, clause could not have saved the position.

The doctrine of Constructive Notice The memorandum and articles of association of every company are registered with the Registrar of Companies. The office of the Registrar is a public office and consequently, the memorandum and articles become public documents. They are open and accessible to all. It is, therefore, the duty of every person dealing with a company to inspect its public documents and make sure that his contract is in conformity with their provisions. But whether a person actually reads them or not, “he is to be in the same position as if he had read them”. He will be presumed to know the contents of those documents. Another effect of this rule is that a person dealing with the company is “taken not only to have read those documents but to have understood them according to their proper meaning”. He is presumed to have understood not merely the company’s powers but also those of its officers. Further, there is a constructive notice not merely of the memorandum and articles, but also of all the documents, such as special resolutions [S. 117] and particulars of charges [S. 77] which are required by the Act to be registered with the Registrar. But there is no notice of documents that are filed only for the sake of records, such as returns and accounts. According to Palmer, the principle applies only to the documents which affect the powers of the company. The common law doctrine of constructive notice should apply to the form. To reiterate the form is a public document that contains particulars of directors who are the mind and will of a company, as well as managers and secretaries who are responsible for the day-to-day running of the company. It is a document that affects the powers of the company and its agents. Certainly, its purpose must be more than just to provide information about the company’s directors, managers, and secretaries. Therefore, persons dealing with the company should check with the Registrar of Companies who its directors, mangers and secretaries are at given time.

What is Ultra Vires? The term “Ultra” means beyond and “Vires” means powers. The term, therefore, means the doing of an act, which is beyond the legal power, and authority of the company. It is considered as an act outside the scope of the object of the company. Doctrine of Ultra Vires The Memorandum, being the constitution of the company sets out the principal objectives, powers, scope and its area of operation, both internal and external. A company, therefore, can do anything within the scope of the powers specified in the Memorandum.It has also an implied power to do all such things that are fairly incidental to its main objects. If the company does anything which is beyond the powers specified in the Memorandum it shall be construed as an Ultra Vires act. Why the Doctrine? The objective of the Doctrine of Ultra Vires is to ensure the shareholders and the creditors that the fund and assets of the company will not be used for any purpose other than those specified in the Memorandum. Especially the creditors, while dealing with the company can make themselves aware of the fact whether his transaction with the company is ultra vires or not. If it is found ultra vires, he can avoid such transaction and thereby safeguard his interest. Effects of an Ultra Vires Act The effects of an ultra vires act can be summed up as follows: 1. An ultra vires act will be wholly void and it will not bind the company; neither the company nor the outsider can enforce the contract. 2. Any member of the company can bring injunction against the company to prevent it from doing any ultra vires act. 3. The directors of the company will be personally liable to make good the funds used for the ultra vires acts. 4. Where a company’s money has been used ultra vires to acquire some property, the right of the company over such property is held secure. 5. Since Ultra Vires contracts are treated as invalid from the outset, it cannot become Intra Vires by reason of estoppel or ratification. 6. Ultra Vires borrowing does not create the relationship of debtor and creditor. The only possible remedy in such case is in rem and not in personam. Can an Ultra Vires Act be Ratified? An ultra vires act cannot be ratified even by the whole body of the shareholders and make it binding on the company. In other words, even the shareholders cannot do an ultra vires act. This is the peculiar feature of this doctrine.

What is a Memorandum of Association? A Memorandum of Association is the most important document of a company. It states the objects for which the company is formed. It contains the rights, privileges, and powers of the company. Hence it is called a charter of the company. It is treated as the constitution of the company. It determines the relationship between the company and the outsiders. The whole business of the company is built up according to the Memorandum of Association. A company cannot undertake any business or activity not stated in the Memorandum. It can exercise only those powers which are clearly stated in the Memorandum. Definition of Memorandum of Association Lord Cairns: “The memorandum of association of a company is the charter and defines the limitation of the power of the company established under the Act”. Thus, a Memorandum of Association is a document that sets out the constitution of the company. It clearly displays the company’s relationship with the outside world. It also defines the scope of its activities. MoA enables the shareholders, creditors, and people who have dealing with the company in one form or another to know the range of activities. Contents of Memorandum of Association According to the Companies Act, the Memorandum of Association of a company must contain the following clauses: 1. Name Clause of Memorandum of Association The name of the company should be stated in this clause. A company is free to select any name it likes. But the name should not be identical or similar to that of a company already registered. It should not also use words like King, Queen, Emperor, Government Bodies and names of World Bodies like U.N.O., W.H.O., World Bank etc. If it is a Public Limited Company, the name of the company should end with the word ‘Limited’ and if it is a Private Limited Company, the name should end with the words ‘Private Limited’. 2. Situation Clause of Memorandum of Association In this clause, the name of the State where the Company’s registered office is located should be mentioned. Registered office means a place where the common seal, statutory books etc., of the company are kept.The company should intimate the location of registered office to the registrar within thirty days from the date of incorporation or commencement of business.The registered office of a company can be shifted from one place to another within the town with a simple intimation to the Registrar. But in some situation, the company may want to shift its registered office to another town within the state. Under such circumstance, a special resolution should be passed. Whereas, to shift the registered office to other state, Memorandum should be altered accordingly. 3. Objects Clause of Memorandum of Association This clause specifies the objects for which the company is formed. It is difficult to alter the objects clause later on. Hence, it is necessary that the promoters should draft this clause carefully. This clause mentions all possible types of business in which a company may engage in future. The objects clause must contain the important objectives of the company and the other objectives not included above. 4. Liability Clause of Memorandum of Association This clause states the liability of the members of the company. The liability may be limited by shares or by guarantee. This clause may be omitted in case of unlimited liability. 5. Capital Clause of Memorandum of Association This clause mentions the maximum amount of capital that can be raised by the company. The division of capital into shares is also mentioned in this clause. The company cannot secure more capital than mentioned in this clause. If some special rights and privileges are conferred on any type of shareholders mention may also be made in this clause. 6. Subscription Clause of Memorandum of Association It contains the names and addresses of the first subscribers. The subscribers to the Memorandum must take at least one share. The minimum number of members is two in case of a private company and seven in case of a public company. Thus the Memorandum of Association of the company is the most important document. It is the foundation of the company.

Kinds of Companies : www.lawtool.net Unlimited Companies Guarantee Companies Limited Companies Private Companies 1. Unlimited Companies, the liability of the shareholders is not limited to their shares, but liable for all the trade debts, without any limit. Of course, the creditor will have to sue the Company and not the individuals. In case of winding up, the shareholders will have to contribute to the assets to dissolve the liability of the Company. Such a company need not have share capital; but it should have Articles of Association, setting out the number of members and the share capital, if any. It can reduce its own capital without the permis sion of the court. But, it must make annual returns.Such companies are very rare. 2. Guarantee Companies, the liability of the members is limited to a particular sum specified in the Memorandum of Association. Hence, in case of a winding up the guarantee extends to the extent of the sums specified in the M/A only. 3. Limited Companies, the liability is limited to the shares subscribed and does not go beyond. Shareholder not liable. . 4. Private Companies, family concerns and small scale units may run business with a small number of persons (Minimum 2, Maximum 50) Special features and privileges of Private Companies: A private company also has the M/A and A/A and is to be incorporated. Infact, it is having the advantages of both the privacy of a partnership and origin and performance of a corporate body. Public Companies are like bees working in a glass-hive; but Private Companies can keep the affairs for themselves, because of the encouragement and benediction of the Parliament. i) Number: The minimum is two and the maximum is 50. Hence, a Private Company can be formed with two persons (The public company minimum is 7). ii) Transfer of shares : Restrictions may be imposed regarding transfer of shares. The total membership should not exceed 50. (It becomes public, if it is 50 or above).In it’s A/A, it must prohibit issue of prospectus to the public to subscribe for shares or debentures. Hence, all the procedures regarding issue of prospectus are not applicable to it. iii) Directors :There are many benevolent provisions. It may have only two Directors. They can be permanent life members (14 days notice, as in Public Company, is not applicable. Similarly rule relating to rotation, of directors number of directors. Reporting to the Registrar within 30 days of taking office as Directors, restriction as to remuneration etc., also do not apply), provisions relating to qualification shares do not apply. iv) Statutory Meeting:Whereas this is a must in a Public Company, a Private company is exempted from holding a statutory meeting and of filing its statutory report. v) An interested director i.e., a director interested in the subject matter or issue cannot participate and vote in a Public Company, but not so in a Private Company. A director, who is selling his plot of land to the Company, is an interested director. The reason for giving these and other advantages is that no public money is involved, in private companies. vi) A Private Company may commence its business on registration. vii) It is exempted from filing with the Registrar a prospectus or a statement in lieu of prospectus. viii) Director may vote on a contract in which he is interested.Restriction on remuneration to directors imposed in Public Companies does not apply. ix) Violation of Conditions:The various privileges to a Private Company are available to it, as long as it maintains the status as a Private Company by observing the restrictions and limitations imposed on it. However, if it violates them, it will not be entitled to privileges. The Company Law Board may excuse if failure is accidental or due to some reasonable cause.

LIABILITY :- Liability of the Government www.lawtool.net Synopsis State liability Sovereign Immunity Tortuous liability of the State: Position in India State liability Liability of the Government in tort is governed by the principles of public law inherited from English Common Law and the provisions of the Constitution. The Constitution of India deals with the extent of liability of the Union of India and the Government of a State under Article 300. Sovereign immunity According to old England, law King can do no wrong. Even if he does it was not wrong. State was not liable for the torts committed by its servants. This kind of protection is called sovereign immunity. The wrongdoer was personally liable but not state. According to new England Law, The Crown Proceedings Act, 1947 had changed the position and now the State is liable for the tort committed by its servants just like private individuals. It is based on principle qui facit per alium facit per se' which means he who does an act through another does it himself. Tortuous liability of the State: Position in India According to Article 300 of the Constitution of India, the State or Government is liable for the torts committed by its servants. This is known as 'vicarious liability. The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued in the name of the State Legislature. Therefore the State is liable to pay compensation for its torts. Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India, 5 Bom HCR Appl 1, the servant of P&OSN Co. was driving a horse carriage on a highway in Calcutta. The Government servants were carrying a long iron chimney (the funnel) across the road. One ofthe horses was injured due to the negligence of Government servants, The State was held liable for pay compensation. Chief Justice Peacock further held that for sovereign functions State is not liable. For non-sovereign functions State is liable. Vidyawati v. Lokumal, AIR 1957 Raj. 305, Husband of Vidyawati died due to rash and negligent driving of a Government jeep was a non-sovereign function. Hence, the State was held liable. State of Rajasthan v. Vidyawati, AIR 1962 SC 933, the Plaintiff husband died in the accident caused by collector's jeep on its return from workshop after repair. The High Court held that the State was liable. Because returning from workshop was a non-sovereign function it has been observed that the State should not claim immunity from liability in the welfare state. State of Orissa v. Padmalochan, AIR 1975 Orissa 41, Lathi charge by police caused injured the Plaintiff Court held that lathi charge was 'sovereign function' and State was not liable. Kasturilal v. State of U.P, AIR 1965 SC 1039, In Meerut police arrested Kasturilal, a Gold business man the 103 tulas of 2 mainds with his gold and silver wrongfully on mere suspicion. The Gold was kept in police locker under the charge of Mohamrna Amir, a head constable. The head constable had stolen the gold and went to Pakistan. It has been held that the State was not liable because 'custody of property in the police station was a sovereign function. Therefore, Government was not responsible. Pagadala Narasimham v. The Commissioner and Special officer, Nellore Municipality, AIR 1994 AP 21, Plaintiff's bus was wrongly parked. Traffic police and servants of Municipality removed it. It has been held that 'removal of wrongly parked vehicle' was a sovereign function and therefore State was Rudul Shah v. State of Bihar, AIR 1983 SC 1086, Rudul shah was acquitted in 1968 but he was wrongfully detained in the jail for 14 years. Supreme in ordered for immediate release and awarded compensation of Rs. 35.000. State was held liable. Saheli v. Commissioner of Police, Delhi, AIR 1990 SC 513, the police ed the death of9 years old Naresh. Saheli, a Women's Resource Centre Aled a writ petition. Supreme Court awarded Rs. 75,000 to the mother of the Child. Thus, the State was held liable Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, Bhim Sinch, an MLA was wrongfully detained by police. He could not attend the assembly session. Court awarded Rs. 50,000 as compensation. N. Nagendra Rao & Co. State of AP (1994) 6 SCC 205 It has been held that the State was liable vicariously for the negligence committed by its officers in the discharge of pubic duty conferred on them under a Statute. The State cannot claim any immunity during the functions of constitutional Government. State of AP v. Challa Ramakrishna Reddy, AIR 2000 SC 2083, This case is popularly known as 'prisoner's murder case'. A prisoner informed the authorities of the jail about the apprehended danger to his life, but the authorities on this information took no action. No measures were taken for his safety and he was killed in the prison. It has been held that in the case of violation of fundamental rights, the defense of Sovereign Immunity couldn't be accepted. Therefore, the Government and the police are liable to pay compensation. The rule of liability of the State for torts in the P&O Steam Navigation's case is very out-model and not suitable for the modern age. When the activities of the State have vastly and rapidly increased, it is very difficult to draw a distinction between sovereign and non-sovereign functions of the State. Therefore, the liability of the State should accordingly be made coextensive with its modern role of a welfare State.

Introduction to Law of Torts Subject: Law of Torts www.lawtool.net Definition and Meaning of Tortious Liability : "Tort" comes from "Tortum" which means "to twist". What is twisted is the conduct of the wrong-doer, called the defendant. Such a twist causes a legal injury (a civil wrong)) to the plaintiff and the courts provide for a remedy to him in the law of Torts. "Tortious liability arises from a breach of duty fixed by law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages" (Winfield). Salmond defines a tort as a civil wrong for which the remedy is an action for damages and which is not exclusively a breach of contract or breach of trust or breach of other merely equitable obligations. Thus "torts are civil wrongs. But all civil wrongs are not torts". To be a tort, the civil wrong should have three essentials :- 1. The duty is primarily fixed by law. Law provides for legal rights and legal duties. In fact, one man's rights are another man's duties. Such legal rights are numerous in number, as for example,everyone has a right to his reputation, right to property, right to his person etc. On every other man duties are imposed by law, such duties are numerous in number; Eg. Not to assault others, not to commit Nuisance, not to slander others, not to deceive others, not to trespass on other's land, not to defame others etc. The violation of such a legal duty gives rise to a tortious liability. 2. The legal duty is towards persons generally: The legal duty,for example, not to slander means not only that slander should not be committed against X or Y but in tort the duty is considered general, i.e., it is against all persons in the world (in rem). Hence, the legal duty not to assault, libel, trespass etc., is against all persons in the world. 3. Unliquidated Damages: Damages are divided into liquidated and unliquidated.'Liquidated', means the amount is pre-estimated and fixed by the parties themselves as in a contract. Damages are unliquidated when the court, in its discretion, awards compensation taking into consideration a large number of factors that help to assess the compensation. In fact, according to towinfield action for unliquidated damages, is the basis of tortious liability. It may be noted that there are other remedies as well. Eg. Self-defence, temporary or permanent injunction, action for specific restitution of land and chattels, or abatement of nuisance, etc. A tort is a civil wrong. This is basically a breach of a duty imposed by law, which gives rise to a civil right of action for a remedy not exclusive to any other area of law. How the word tort came to India? It came to India through England. In 1065 England was conquered by Normans, who were the French-speaking people of Normandy, a region of France. After Norman Conquest, French become the spoken language in the courts in England, and thus many technical terms in English Law owe their origin to French, and tort is one of them. The word tort is based on the idea that everyone in society is having certain rights. The word tort is of French origin and is equivalent of the English word wrong, and the Roman law term delict. It is derived from the Latin word tortum, which means twisted or crooked.  It implies conduct that is twisted or crooked. It is commonly used to mean a breach of duty amounting to a civil wrong. Of the various attempts to define tort,  Salmond's definition  is  rather popular. Salmond defines a tort as a civil wrong for which the remedy is a common-law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable Obligation. A tort arises due to a person‟s duty to others in general which is created by one law or the other. A person who commits a tort is known as a tortfeasor or a wrongdoer. Where they are more than one, they are called a joint tortfeasor. Their wrongdoing is called tortuous act and they are liable to be sued jointly and severally. The principle aim of the Law of tort is the compensation of victims or their dependants. Grants of exemplary damages in certain cases will show that deterrence of wrongdoers is also another aim of the law of tort. Objectives Of Law Of Torts i.  To determine rights between parties to a dispute. ii. To prevent the continuation or repetition of harm e.g. by giving orders of the injunction. iii. To protect certain rights recognized by law e.g. a person's reputation or good name. iv. To restore the property to its rightful owner e.g. where the property is wrongfully taken away from its rightful owner. Constituents Of Tort The law of tort is fashioned as an instrument for making people adhere to standards of reasonable behavior and respect the rights and interests of one another. A protected interest gives rise to a legal right, which in turn gives rise to a corresponding legal duty. An act, which infringes a legal right, is a wrongful act but not every wrongful act is a tort. To constitute a tort or civil injury, therefore: 1.There must be a wrongful act or omission. 2.The wrongful act or omission must give rise to legal damage or actual damage and; 3.The wrongful the act must be of such a nature as to give rise to a legal remedy in the form of an action for damages. The wrongful act or omission may however not necessarily cause actual damage to the plaintiff in order to be actionable. Certain civil wrongs are actionable even though no damage may have been suffered by the plaintiff. 1. Wrongful Act. The act complained of should, under the circumstances be legally wrongful as regards the party complaining, i.e. it must prejudicially affect him in some legal right. This must be an act or an omission. Merely that it will, however directly, do him harm in his interest is not enough. The act being wrongful in law is called actus reus. An act which prima facie appears to be innocent may become tortuous if it invades the legal right of another person e.g. the erection in ones' own land, of anything, which obstructs light to a neighbors' house. Liability for a tort arises therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty. 2. Damage. The sum of money awarded by the court to compensate for damage is called damages. Damage means the loss or harm caused or presumed to be suffered by a person as a result of some wrongful act of another. Legal damage is not the same as actual damage. Every infringement of the plaintiff‟s private right or unauthorized interference with his property gives rise to legal damage. There must be a violation of a legal right in cases of tort. Every absolute right,  injury, or wrong i.e. tortuous act is complete the moment the right is violated irrespective of whether it is accompanied by and actual damage. In case of qualified right, the injury or wrong is not complete unless the violation of the right results in actual or special damage. Every injury, thus imports damage, though may not have cost the victim a penny, but simply by hindering the right, as an action for a slanderous word, though a man does not lose a penny by speaking them yet he shall have an action. Likewise, a man shall have an action against him who rides over his ground, though it does him no damage, for it is an invasion of his property and the other trespasser has no right to come there.The real significance of legal damage is illustrated by two maxims namely: Injuria sine damno and Damnum sine injuria. Damnum is meant to damage in the substantial sense of money, loss of comfort, service, health or the like. By injuria is meant a tortuous act. Injuria sine damno. This is the infringement of and absolute private right without any actual loss or damage. The phrase simply means Injury without damage. The person whose right is infringed has a cause of action e.g. right to property and liberty are actionable per-se i.e. without proof of actual damage.  Example: Refusal to register a voter was held as and injury per-se even when the favorite candidate won the election - Ashby Vs. White (1703). This rule is based on the old maxim of law „Ubi jus  ibi remedium‟ which means that where there is a right, there is a remedy. Damnum sine injuria This is the occasioning of actual   and substantial loss without infringement of any right. The phrase simply means Damage without injury. No action lies. Mere loss of money or moneys' worthy does not constitute a tort. There are many acts, which though harmful are not wrongful, and give no right of action. Thus Damnum may be absque injuria i.e. damage without injury. Example: In the case of Mayor & Bradford Corporation Vs. Pickles (1895), Pickles was annoyed by the refusal of Bradford Corporation to purchase his land for their water undertaking. Out of spite, he sank a shaft on his land, which had the effect of discoloring and diminishing the water of the Corporation, which percolated through his land. The House of Lords held that the action of Pickles was lawful and no matter how ill his motive might be he had a right to act on his land in any manner that so pleases him. In the case of Mogul Steamship Co. Vs. Me-Gregory (1892). Certain ship owners combined together. In order to drive a ship-owner out of trade by offering cheap freight charges to customers who would deal with them.The plaintiff who was driven out of business sued the ship-owner, for loss caused to him by their act. The court held that a trader who is ruined by legitimate competition of his rivals could not get damages in tort. 3. Remedy. The essential remedy for a tort is action for damages, but there are other remedies also e.g. injunction, specific performance, restitution etc. Further, damages claimable in tort action are unliquidated damages. The law of tort is said to be a founded of the maxim- Ubi jus ibi remedium i.e. there is no wrong without a remedy. Other elements of tort In certain cases, the   following   may   form   part   of requirements for a wrong to be tortuous. 1.  Voluntary and involuntary acts: acts and omissions may be voluntary or involuntary. An involuntary act does not give rise to liability in tort. 2. Mental elements: Plaintiff may be required to show some fault on the part of the defendant. Fault here means failure to live up to some ideal standard of conduct set by law. To determine fault, the following may be proved:- a) Malice: In the popular sense, malice means ill-will or spite. In Law, it means i) intentional doing of a wrongful act and, ii) improper motive. Thus a wrongful act done out of malice is an act done wrongfully and without reasonable and probable cause, dictated by anger or vindictive malice. b) Intention: i.e. where a person does a wrongful act knowing the possible consequences likely to arise, he is said to have intended that act, and is therefore at fault. c) Recklessness: i.e. where a person does an act without caring what its consequences might be, he is at fault. d) Negligence: i.e. where the circumstances are such that a person ought to have foreseen consequences of his act and avoided it altogether, he would be at fault if he bothers not. e) Motive: Motive is the ulterior objective or purpose of doing an act and differs from intention. Intention relates to the immediate objective of an act while motive relates to the ulterior objective. Motive also refers to some personal benefit or satisfaction which the actor desires whereas intention need not be so related to the actor. An act which does no amount to legal injury cannot be actionable because it is done with a bad motive it is the act, not the motive for the act that must be regarded. If the act apart from motive gives rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply that element. The exceptional cases where motive is relevant as an ingredient are torts of malicious prosecution, malicious abuse of process and malicious falsehood. 3. Malfeasance, misfeasance and non-feasance: ‘Malfeasance‟  refers to  the commission of a wrongful act which is actionable per-se and do not require proof of intention or motive. „Misfeasance‟ is applicable to improper performance of some lawful act, for example, where there is negligence. ‟Non-feasance‟ refers to the omission  to perform some  act where there is an obligation to perform it. Non-feasance of a gratuitous undertaking does not impose liability, but misfeasance does. MOTIVE AND MALICE. Motive means the reason behind the act of the defendant. When motive is colored with ill will, it becomes malice. Malice means desire or ill will to cause damage to someone. As a general rule motive is irrelevant in determining liability in tort. A good or bad intention is not a defense in tort. Case:  Bradford Corporation V s. Pickles (1895): The general irrelevance of motive and malice is clearly analyzed in this case. Pickles was annoyed by the refusal of Bradford Corporation (plaintiff) to purchase his land for their water project. Out of Malice he sank a shaft in his land, which had the effect of discoloring and diminishing the water of the corporation, which percolated through his land. The corporation applied for an injunction to restrain Pickles from collecting the underground water. The court held that an injunction could not be granted as Pickles had a right to drain from his land underground water not running in a defined channel. Therefore, the fact that Pickles was malicious in his conduct is immaterial. Malice in itself is not a tort even though in some cases, it may constitute an essential element of a tort, for example, malicious prosecution. Distinctions between Contract and Tort 1. In a contract the parties fix the duties themselves whereas in tort, the law fixes the duties. 2. A contract stipulates that only the parties to the contract can sue and be sued on it (privity of contract) while in tort, privity is not needed in order to sue or be sued. 3. In the case of contract, the duty is owed to a definite person(s) while in tort, the duty is owed to the community at large i.e. duty in- rem. 4. In contract remedy may be in the form of liquidated or unliquidated damages whereas in tort, remedies are always unliquidated. Distinctions between Tort and Crime 1. In tort, the action is brought in the court by the injured party to obtain compensation whereas in crime, proceedings are conducted by the state. 2. The aim of litigation in torts is to compensate the injured party while in crime; the offender is punished by the state in the interest of the society. 3. A tort is an infringement of the civil rights belonging to individuals while a crime is a breach of public rights and duties, which affect the whole community. 4. Parties involved in criminal cases are the Prosecution verses the Accused person while in Torts, the parties are the Plaintiff versus the Defendant.

SHORT QUESTIONS "Rule of law means that the law rules"– Explain. Administrative law and constitutional law – the relation. Administrative Tribunals and courts – the difference. Central Vigilance Commission Classification of administrative functions. Commissions of Inquiry – the need. Constitutional law and Administrative law. Contractual liability of the Government Critically comment on the Doctrine of Rule of Law. Define delegated legislation. Explain how judiciary Discuss the doctrine against bias. Discuss the reasons for the growth of delegated legislation. Discuss the theory of separation of powers and its applicability in India Doctrine of Estoppel Doctrine of Separation of Powers Doctrine of vicarious liability. Droit administratif. Explain functions of Lokpal. Explain the rule of audi alteram partem. Legislative control of delegated legislation Lokayukta Nature and scope of Administrative Law Ombudsman is the watchdog of the administration – Elaborate. Point out the differences between Art. 32 and Art. 226 of the Constitution of India. Point out the relationship between Constitutional Law and Administrative Law. Promissory Estoppel Public Corporations – meaning and kinds. Separation of powers Since government is a government, law allows certain privileges to the Government Discuss. Tortious liability of State. : What do you mean by tortious liability ? What is a Tribunal ? Point out its differences from a Court. What is rule of law ? Writ of certiorari — Explain in brief. Writ of Mandamus. Write a short note on the Central Vigilance Commission. Write an explanatory note on Commissions of Inquiry. Write note on : The Commission of Inquiry Act. Write short note on Vigilance Commission. LONG QUESTIONS "Excessive delegation of rule-making powers is unconstitutional" – Discuss in view of Delhi Laws Actcase. Which are the functions that can be delegated ? What is meant by a government contract ? Can the government be made liable for breach of contract ? How ? Trace the development of the doctrine of promissory estoppel vis-a-vis the State, with the help of decided cases. Define "administrative law". What are the reasons which have led to the growth of administrative law in the present times ? "Natural justice represents higher procedural principles which every administrative agency must follow in taking any decision" – Discuss in the light of Judicial pronouncements. Write a detailed note on the Constitutional remedies available against the State in the light of landmark decisions. What is meant by discretionary powers of the administration ? How can the exercise of discretionary powers be controlled ? "Power in the hands of administrative authorities is a public trust which must be exercised in the best interest of the people" – In this context discuss the doctrine of public accountability. Habeas Corpus case a bad law. Discuss. The Indian constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated... Justice Mukherjea. Discuss with the help of decided case law. The presumption is it (Natural Justice) will always apply, however silent about it the State may be. Explain with the help of decided case law.It is not expedient to extend the horizon of Natural Justice involved in the audi alteram partem rule to the twilight zone of mere expectations, however great they may be. Explain with the help of decided case law. Discuss in detail Sampath Kumar Vs/ Union of India.Explain the Doctrine of Legitimate Expectations with the help of decided cases. “The law has been rightly laid down by the Supreme Court in Vidyawati. Unfortunately within a very short time a clear departure was made in Kasturilal and the efficacy of the law laid down in Vidyawati was considerably watered down by the Supreme Court.” Discuss. Describe the control mechanism established in India to exercise various types of control on public corporations. Explain the necessity of classification of administrative action. Distinguish between administrative function and quasi-judicial function. Elaborate the need for devolution of adjudicatory authority on administration. State its characteristics. Elaborate the Writ of Mandamus in detail and substantiate your answer with case laws. Write about the contractual liability of a State. What are its requirements. Substantiate your answer with case laws. Elaborate the concept of administrative discretion and judicial review. State how judiciary exercises the control over administrative discretion. Define Public Corporation. State different kinds of Public Corporation. Administrative law has been characterized as the most “Outstanding legal development of the 20th century”. Explain the above statement in the light of rapid growth of administrative law. What is delegated legislation ? How judiciary exercises control over delegated legislation ? Discuss the judicial controls over Delegated Legislation. Discuss with the help of case-laws, the liability of the state for tortious acts of its servants. Discuss the scope of judicial control over discretionary powers of the Administration. Write an elaborate note on the power of Supreme Court to grant special leave to appeal.Compare U.S. and Indian position on division of powers between organs of the State. Write a descriptive note on ‘Rule of Law’. Discuss the different definitions of Administrative Law and point out its nature and scope. What do you understand by classification of Administrative Functions ? Is it relevant anymore to classify actions as purely administrative and quasi-judicial ? Discuss the nature and scope of Administrative Law. State how administrative functions are classified. How Judiciary exercises control on Administrative actions ? Write a descriptive note on Rule of Law. State and explain the reasons for growth of Administrative Law. What do you mean by Delegated Legislation ? State and explain legislative mechanism to control delegated legislation. Compare US and Indian position on division of powers between organs of the State.

Definition : Administrative law deals with law relating to administration. It is the basic foundation of administration. To Holland and Maitland administrative law is part of Constitutional law. The general Principles relating to the organisation, powers and functions of "the organs ofthe State, namely Legislative, Executive and Judicial) and their relationship are, inter alia,dealt with, in the Constitution.Administrative law determines the organisation powers andfunctions of the Administrative authorities. (Wade & Philips). It includes the matters relating to civil services, public departments, -public corporations, local authorities and other statutory bodies exercising quasi-Judicial functions and the law governing Judicial review of administrative actions. ject As Jennings rightly points out ,the subject matter of administrative law is "Public Administration". Garner's definition is specific. Administrative law is i) a study of institutions and administrative process , ii) the sources of governmental legal powers, iii) provisions or methods to deal with persons, grievances & appropriate remedies, iv) the public corporations and v) administration of local government & general principles applicable to local authorities. Nature & Scope : Administrative law mainly deals with the powers & duties of administrative authorities, and the various remedies available to affected persons. Under welfare state, there is a tremendous increase in state activities in keeping with the techonological & scientificdevelopments. As Roland says "before the days of the Automobile,there was no need for policeman to direct traffic", because there was no traffic! With the increase in State activities, grew the necessity to exercise powers: the administrative & executive powers were enlarged,delegated legislation also developed in the form of rules, regulations bye-laws, notifications etc. Administrative Tribunals started exercising Judicial functions to resolve disputes. The Administrative authorities are empowered with discretionary powers. If these are properly used, there will be the welfare state,. If abused there will be totalitarian state (Lord Dennings).Hence, administrative law defines and demarcates these powers and also provides for remedies to the affected persons, when there is abuse. This exercise of considerable power, is the main cause for growthof administrative law. The trend is to reconcile freedom & Justice of persons, with the necessities of implementing social & economic policies. In this regard, liberty & personal freedoms are to be safeguarded within the frame work of the constitution of India. In this context, Judicial review of administrative action, prevention of mis-use or abuse of power and provisions for suitable remedies form the basic principles of administrative law. It is true to say with Bernard Schwartz, that "the goal ofadministrative law is to ensure that the individual and the state are placed on a plane of equality before the Bar of Justice". Reasons for growth and, development: Many reasons account for the sudden growth of administrative law. The main reasons are :- i) The age-old laissez faire, gave way to a positive policy under welfare state to perform many duties & functions by the state. ii) Legislative processes were rigid and could not be changed, except by amendment by the Legislature. Under delegated legislation executive started making rules, regulations, bye-laws etc, thus it gave flexibility. iii) As judicial system was extensive, slow, complex and over burdened the speedy methods of disposal of disputes got recognition as people found them to be quick, in-expensive and useful. This led to the constitution and working of a large number of Tribunals and quasi judicial bodies. iv)The evolving system of administrative law was more "functional" It was not theoretical or technical or legalistic and hence administrative authorities could solve complex problems. v) The administrative bodies or authorities started taking preventive measure in suitable circumstances, e.g. in licensing, fixing of minimum wages, rate fixing etc. Thus, it was better for Authorities to take measures to prevent adulteration of food, rather than allowing adulteration by the wrong-doer, to be sued later by the affected-persons. vi) Authorities took effective step to enforce the measures and suspend, or cancel licenses, or in suitable cases destroy articles i.e. narcotic drugs etc, of course following principles of natural Justice. These were the main reasons that gave impetus to administrative law to grow fast, especially during the present century. Historical sketch of the growth of Administrative Law: i) England:According to Dicey "In England, we know nothing of administrative law and we wish to know nothing about it". Though Dicey had much disregard, Maitland and others were of the view that administrative discretion and administrative justice had already made their way in to England. Of course, Dicey changed his view, and, later admitted that Parliament had conferred quasi-Judicial authority on administrative bodies and hence, there was administrative law-operating. Dicey : Explain the French "Droit Administratiff (Administrative law) and, compared it, with the "Rule of Law Concept" of England. In his masterpiece "Introduction to the study of the Law of the constitution" "he gave a brilliant explosition to the concept of' Rule of Law' and contrasted that with the Administrative Law of France, and in this exercise administrative Law' became insignificant. Robson's book on Justice and Adm. law port's book on" Administrative Law", made the study of this subject more interesting in England. Apart from these developments Lord Hewert's book 'New Despotism' exposed the dangers of delegated legislation and forced the British Govt. to appoint the Donoghmore committee which suggested inter alia, to set up a select Committee on statutory Instruments. This committee published its report in 1932. Allens book 'Law & Order' (1945) was a critical appraisal of the executive exercise of power. Besides, statutory Instruments Act (1946) and the Crown Proceedings Act 1947 gave the individual, better protection against the arbitrariness of the Executive. Abuse of executive power is another aspect. The "Crichel Down" affair, forced the Govt, to appoint the Franks committee in 1955, and, on the basis of this "The Tribunals and Inquiries Act" was passed in 1958. This deals with the procedures to be followed by every administrative body or agency. ii) U.S.A. :- Though the origin of administrative law in the USA can be traced 1789, still it is with the passing of the commerce Act" of 1877, that it took a definite shape. Authoritative writings like Franks Comparative Administrative law (1911), Fraud's Case book on Administrative law gave much impetus. A special Committee appointed in 1933, Report of Roscoe Pound (1933) & Attorney General's Committee Report 1939, paved the way for the enactment of Administrative Procedures Act 1946. The rules and the procedures provided for in this Act, should invariably followed by all administrative agencies and bodies, as otherwise the act of the agency will be quashed as ultra vires by the courts in the U.S. iii) India :- Historically it may be possible to trace the existence of and the application of Administrative law to ancient India, and to the concept of Dharma. The king and the administrators followed Dharma which was more comprehensive than Rule of law. During the period of the East India Company and later under British regime many Acts, were made to increase governmental power. The modern system started with Stage Carriage Act 1861, under which the system of granting license was initiated. Then followed a series of enactments to enlarge the powers of the Executive, authorities : Bombay Fort Trust Act (1879), The Opium Act (1878), The Explosives Act 1884 The Arms Act (1878) The Dramatic public performance Act 1876. Companies Act 1850 etc. The era of judicial control started with the establishment of Supreme Court at Calcutta, Bombay, & Madras. Many enactments in the field of health, Labour, Public safety, and morality, Transportation and communication, Defence of India., etc, were made in the present century until 1947 when India became Independent. Modern system :- The modern system of Admistrative Law started with the inauguration of the Constitution of India, and, the establishment of the Supreme Court at New-Delhi- The philosophy of welfare state envisaged in the constitution, ushered in, new dimensions of growth in the social, economic and political fields. The ownership and control of material resources of the society should be so distributed as best to sub- serve the common good of the community and the economic distribution should not result in concentration of wealth in the hands of a few individuals (Art 39 of the constitution), became the objective of Welfare State. Since independence, a large number of enactments have been made: New administrative Agencies and bodies have been brought into existence In addition a number of Administrative Tribunals have been established. Provisions are made in the Constitution (Act 32 & 226) empowering the Supreme Court and the High Courts in India to issue writs, as-Constitutional remedies. This is the effective part of Judicial control of administrative action in India. The recognition of Public Interest Litigation (PIL) by the Supreme Court in the judges Transfer case (1981), BandhanaMukthi-Morcha This is the effective part of Judicial control of administrative action in India. The recognition of Public Interest Litigation (PIL) by theSupreme Court in the judges Transfer case (1981), BandhanaMukthi-Morcha Case (1984), Hawala case etc added a new dimension and since then PIL is gaining ground, as a process of participative Justice. Administrative Law in India has grown considerably during these decades in the fields of delegated legislation. Rule of Law. AdministrativeTribunals, Judicial control of administrative actions andremedies, Liability of the Government, Public Corporation.- Ombudsman Of course Lokpal Bill for decades has remained a Bill,and even in 2012 it may not see the light of the day.! A strong political will is required to bring the Lokpal as a powerful institutional Authority to deal with corruption, and the Lokpal Bill 2011 ,now before the Parliament defines a Lokpal ‘As from the commencement of this Act, there shall be established, for the purpose of making inquiries in respect of complaints made under this Act, an institution to be called the “Lokpal’. The objective is stated thus: to provide for the establishment of the institution of Lokpal to inquire into allegations of corruption against certain public functionaries and for matters connected therewith or incidental thereto. It is gratifying to note in many States in India, Lokyukta Institution is effectively and efficiently operating and the credit goes to allthose officers who have honestly and sincerely discharging their functions.With all thesedevelopments, Administrative law has grown considerably & is recognised as an independent branch for study and is distinguished from Constitutional Law.