Industrial AND General Law: Topic Covered:-Coverage - 30 Marks

CS EXECUTIVE CS NAINA JINDAL
INDUSTRIAL
AND
GENERAL LAW
VOLUME-1
TOPIC COVERED:- COVERAGE - 30 MARKS
CONSTITUTION OF INDIA
INTERPRETATION OF STATUTES
AN OVERVIEW OF LAW RELATING TO
SPECIFIC RELIEF; LIMITATION AND EVIDENCE
CODE OF CIVIL PROCEDURE
CRIMINAL PROCEDURE CODE
RIGHT TO INFORMATION
CHAPTER 20
CONSTITUTION OF INDIA
INTRODUCTION  The Constitution of India came into force on January 26, 1950. It is a
comprehensive document containing 395 Articles (divided into 22 Parts) and 12
Schedules.
 Apart from dealing with the structure of Government, the
Constitution makes detailed provisions for the rights of citizens.
 It is considered as supreme and has overriding effect over all the laws
.
 All the laws have their origin in the constitution and so it is known as
mother of all the laws
 All public authorities – legislative, administrative and judicial derive
their powers directly or indirectly from it and the Constitution derives
its authority from the people.
PREAMBLE  The preamble to the Constitution sets out the aims and aspirations of the
people of India. It is a part of the Constitution (AIR 1973 SC 1961)
 The preamble declares India to be a Sovereign, Socialist, Secular,
Democratic Republic and secures to all its citizens Justice, Liberty, Equality
and Fraternity.
 It is declared that the Constitution has been given by the people to
themselves, thereby affirming the republican character of the polity and
the sovereignty of the people.

PREAMBLE DECLARES
INDIA
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC
STATE
Preamble to the Constitution of India reads as:
WE THE PEOPLE OF INDIA. Having solemnly

resolved to constitute India into a
SOVERIN, SOCIALIST, SECULAR, DEMOCRATIC

AND EPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political:
LIBERTY of thought, expression, belief, faith and

worship:
EQUALITY of status and opportunity:
And to promote among them all
FRATERNITY assuring the dignity of the Individual

and unity and integrity of the Nation
CONSTITUTION- Our constitution is basically federal but with certain unitary features.
STRUCTURE
ESSENTIAL  Dual authority: We have two sets of government i.e., government.
FEATURES OF  At the centre and government, at various state levels.
FEDERAL SYSTEM  Distribution of power: The constitution distributes the power to
make law by way of Union List (where only union can make law)
State List where only states can make laws) and Concurrent List
 (where both the union and the states can make laws).
 Supremacy of Constitution : The three pillars of our legal system
i.e., legislature, executive and judiciary all are subordinates to the
Constitution of India, i.e., none of them can surpass the provisional
of constitution of India.
 Independence of Judiciary: The judiciary of our country is totally

independent and neither the legislature not the executive can control
the judiciary

 Written Constitution: The Constitution of India is a written
document
However, even our constitution has aforesaid federal features, in times of
need, it becomes unitary i.e., union has more powers than the state under the
following circumstances:
 The union list contains 97 entries out of which 96 have been
th
specifically names and the 97 item has bee left blank and is
unknown as residuary item under which any new item which has not
found a place in any of the list can be included, This being in the
union list, it effectively means that on any new subject, only
parliament can make a law.

 Under state list, only state can pass law but Article 246 permits the
Parliament to pass law on state list matters under five circumstances,
 These circumstances are a matter of:
  National Interest:
 Emergency:
 Dispute between two or more states:
 To give effect to an international agreement: and
 Breakdown of constitutional machinery in a state.
This parliament has more powers under these five circumstances ever in the
state list.
 Under concurrent list, if any law is pass on a particular matter by
Union as well as State and if there is an inconsistency between two
laws then the union law will prevail over the state law.

 In India, we have a single citizenship system unlike in the case of
USA where there is a concept of dual citizenship.
Professor K.C.Wheare thus held that the Indian Constitution establish a

system of government which is at the most Quasi-Federal (not strictly
federal). Jennings also characterized Indian constitution as a federation with
a strong centralized tendency.
FUNDAMENTAL A man, by birth, has certain rights which are universal and inalienable i.e., e
RIGHTS can not be deprived of them. It is the function of the State to recognize these
rights and allow then of free play so that the human liberty is preserved,
human personality is developed and an effective cultured, social and
democratic life is promoted. The aforesaid rights are recognized in the form
of fundamental rights in Part III of the constitution of India.
Constitution of India guarantees six categories of fundamental rights. The
are:
  Right to equality ( Articles 14 to 18)
 Right to freedom (Articles 19 to 22)
 Right against exploitation (Articles 23 & 24)
 Right to freedom of religion (Articles 25 to 28)
 Cultural and educational right (Articles 29 & 30)
 Right to constitutional remedies (Articles 32)
CONCEPT OF The term “State” a defined in Article 12 of the Constitution of India. As per
STATE this unless the context otherwise provides, the term “state” includes:
  The Government and Parliament of India
 The Government and legislature of each of the state; and
All local or other authorities:
 Within the territory of India; of
 Under the control of the Government of India
The expression „Local authority’ includes the following:

 Municipalities;
  District Boards;
 Panchayats, etc.
The expression „other authority’ includes the following:
 Electricity authorities;
 Universities;
 Income tax Department, etc.
The expression ‘under the control of the Government of India’ covers

into the definition of State, not only every authority within the territory of
India, but also those functioning outside India provided such authorities are
under the control of the Government. Of India.
The question, whether a corporation acting as instrumentality or agency of
Government is „state‟ or not, was decided by the Supreme Court in the case
of R.D.Shetty v. International Airport Authority and later on followed in
the case of Ajay Hasia v. Khalid Mujib. It was decided in the aforesaid
cases that in general a corporation acting as an instrumentality or agency of
the government is not a state within the meaning of Article 12 of the
Constitution of India. However, following are some the instance where a
corporation acting as a instrumentality or agency of the Government. Can be
regarded as a State within the meaning of Articles 12 of Constitution of
India:
 If the entire share capital is held by the government
 If the Government exercises deep and persuasive control over the
 corporation
  Where the corporation enjoys monopoly status
 If the function of the corporation are of public importance and
 closely relates to Government functions.

 If a department of Government is transferred to a corporation.
Where court exercises a judicial function, it can not be regarded as State as

the expression „State‟
covers only legislature and executive and executive and not judiciary.
However, where a court
exercises non-judicial function, it can be considered as State {A. R. Antulay
v. R .S. Naya
The significance of concept of „State‟ in the context of fundamental rights is
that generally the
fundamental rights are available against the State.
Justifiability/  Article 13 of Constitution of India invalidates any pre or post
amenability of constitutional law which is against the fundamental rights. It also
Fundamental restricts the amenability of Fundamental Rights.
Rights  The question whether a fundamental right can be amended, abridge
or taken away has been examined in various cases and finally settled
in the Golaknath case. In this case it was held that fundamental
rights can neither be abridged or amended nor taken away by the law
and for this purpose, the term law includes a Constitutional
Amendment. Thus fundamental rights can‟t be affected ever by
constitutional amendment.
 The aforesaid decision was set aside by inserting a provision in
Article 13 i.e., Article 13(4) which ways that “Nothing in Article 13
shall apply to any amendment of this Constitution.
Further, the aforesaid provisions of Article 13(4) were challenged in the case
of Keshavanand Bharti v. State of Kerala, where the Supreme Court has
dismissed the petition and upheld the validity of Article 13(4) and held that
fundamental rights can be affected by a Constitutional Amendment by the
basic structure of the constitution can not be amended.
Article 13 came up from judicial review in number of cases and the courts
have enclosed carious doctrines like doctrine of severability, doctrine of
eclipse, doctrine of waiver of right, etc of interpreting the provisions of
Article 13
SEVERAL DOCTRINES
DOCTRINE OF  It provides that only that part of the law will be declared invalid
SEVERABILITY which is inconsistent with the fundamental rights and the rest of the
law will stand.
 However, invalid part of the law will be severed only if it is
severable, i.e., if after separating the invalid part, the valid part is
capable of giving effect to the legislature‟s intent, then only it will
survive otherwise the court shall declare the entire law as invalid.
DOCTRINE OF  It provides that a law made before the commencement of the
ECLIPSE constitution remains eclipsed or dormant to be extent in comes under
the shadow of fundamental rights i.e., is inconsistency brought about
by the fundamental rights is removed by the amendment to the
Constitution of India
DOCTRINE OF 
It provides that a person has the liberty to waive the enjoyment of
WAIVER OF such rights as are conferred on him by the state, provide that such
RIGHT: person must have the knowledge of his rights and the waiver should
be voluntarily, However, citizens cannot waive of any of the
fundamental rights { Basheshar
Nath v. I T Commissioner}
RIGHT TO EQUALITY [ARTICLES 14 TO 18]
Right to equality is on of the basic fundamental human rights afforded by

the constitution of modern democratic states including India. The
constitution of our country is espouses the principles of equality of status
and opportunity in its very Preamble and further gave a practical effect in
Article 14 to 18, which are as follows:
  Equality before the law (Article 14)
 Prohibition of discrimination on grounds only of religion,
 race, caste, sex, place of birth. (Article 15)
 Equality of opportunity in matters of public employment
(Article 16)
 Abolition of untouchability (Article 17)
 Abolition of Titles (Articles 18)
Equality before the law
Article 14 of Constitution of India Provides:
“The State shall not deny to any person equality before law or equal
protection of the laws within the territory of India.”
The expression „equality before law‟ is a negative concept and it implies the
absence of any special privilege in favors of any individual, whatever be his
rank or status, and the equal subjection of all classes to the ordinary law.
The expression „equal protection of the law‟ is a positive concept and it
implies equality of treatment in equal circumstances. In other words same
law should be applicable among equals or some law should not be applicable
among unequal. In order that “right to equal treatment in similar
circumstances” should make sense, the law shall have to make a
classification between persons who are equally situated. Thus, if there is a
reasonable basis of classification, the legislature would be entitles to treat
different classes differently.
In Ramkishan Dalmiya v. Justic Tendulkar , the Supreme Court has
summarized he rules with respect to permissible classification, which are as
follows:
 Article 14 forbids class legislation, but does not forbid
 classification
 Permissible classification must satisfy following two
conditions

o The distinction between those who are included and
those who are left out
from the provisions of an Act should be clear and
o Such distinction should have a reasonable relationship

with purpose of the Act.
 The classification may be founded on different basis, namely
geographical or according to the objects or occupation or the
 like.
 Even a single individual may be treated as a class by himself
on account of some special circumstances or reasons
 applicable to him ad not applicable to other.
 It is not necessary for the state to proof that the law provides
equality but it is up to the affected persons to prove whether
equality is violated or not.
 It may be noted that Article 14 applies to any person and is

not limited to citizens alone. Thus, a corporation, which is
only on artificial person by not a citizen is also entitled to the
benefit of this Article.
PROHIBITION OF Article 15 provides that the State shall not discriminate against any citizen
DISCRIMINATIO on grounds only of religion, race, caste, sex or place of birth or any of them.
N ON GROUNDS
ONLY OF
Further no citizen shall be deprived of the following right on ground only of
RELIGION, RACE, religion, race, caste, sex, place of birth
CASTE, SEX OR  Access to shop, public restaurants, hotels and places of public
PLACE OF BIRTH entertainment:

 The use of wells, tanks bathing ghats, roads and places of resorts,
maintained out of State funds.
The significance of the word „only‟ used in Article 15 is that if there are any
grounds on discrimination other than ground of religion, race, caste, sex,
place of birth then such discrimination is not prohibited [ Yusuf v. State of
Bombay]
The rights guaranteed in Article 15 are subject to the following exceptions:
  The State can make any special provision for women and children;
The State can make any special provision for the advancement of any
socially and educationally backward classes of citizens or for the Schedule
Castes and Schedule Tribes
EQUALITY OF Article 16 guarantees equality of opportunity to all citizens in the matter of
OPPORTUNITY appointment to any office under the State. The aforesaid rule is subject to the
IN MATTERS OF
following exceptions:
PUBLIC
EMPLOYMENT  The Parliament can make any law prescribing any requirement as to
resident in a State in respect of any particular class or classes of
 employment in that state.
 The State can make provisions for the reservation of post in favor of
 any backward classes of citizens.
Offices connected with religious institutions may be reserved for he persons
of a particular religion
ABOLITION OF
UNTOUCHABILITY
ARTICLE 17 Article 17 provides that untouchability is abolished and its practice in any
form is forbidden. The enforcement of any disability arising out of
untouchability shall be an offence punishable in accordance with law
ARTICLE 18 Articles 18 abolishes all the titles conferred on various Indian Citizens by
ABOLITION OF British Government and the use of those titles is prohibited as it results in
TITLES creating superior and inferior classes of citizens. However, Military titles,
Academic titles or Titles recognizing merit or work of an extra-ordinary
nature can be conferred and used
RIGHT TO Article 19
FREEDOM
[ARTICLS 19 TO Article 19 guarantees the following six freedoms to the citizens of India:
22]
1. Right to freedom of speech and expression.
2. Right to assemble peacefully and without arms.
3. Right to form associations or unions.
4. Right to move freely throughout the territory of India.
5. Right to reside and settle in any part of territory of India.
6. Right to practice any profession or to carry on any trade, business or
occupation.
It may be noted that the aforesaid rights are not absolute and hence
reasonable restrictions may be imposed on them. The phrase reasonable
restrictions connotes that the limitation imposed upon a person in the
enjoyment of a right should not be arbitrary or of an excessive nature. In
determining the reasonableness of statute, the court would see both the
nature of the restrictions and procedures prescribed by the statute for
enforcing the
Restrictions on the individual freedom. The reasonableness of restriction has
to be determined in an objective manner and from the point of view of the
interest of the general public and not from the point of view of the persons
upon whom the restrictions are imposed. The court is required to ascertain
the reasonableness of the restrictions and not of the law which permits the
restrictions.
The word „restriction‟ also includes cases of prohibition and the state can
establish that a law, thought purporting to deprive a person of his
fundamental right, under certain circumstances amounts to a reasonable
restriction only.
RIGHT TO Freedom of speech and expression is a very important aspect of democracy,

FREEDOM OF The freedom of speech and expression means the right to express one‟s
SPEECH AND
EXPRESSION
convictions and opinions freely by words of mouth, writing, printing,
[ARTICLES pictures or any other mode.
19(1)(A)]: The right speech and expression includes right to make good or bad speech.
One may express oneself even by sign. It also includes the expression of
idea through dramatic performance, cinematographic and any other mode of
expression.
In Maneka Gandhi v. Union of India, it was decided that the freedom of
speech and expression includes the freedom of press and thus imposition of
pre-censorship on publication of views, ideas, analysis, etc is violative of

freedom of speech and expression.
In the case of Bijoe Emmanuel v. State of Kerala, it was held that the right
to freedom of speech and expression also includes the right to remain silent.
It was decided that a person can not be compelled to sing a National Anthem
of he does not want to do so because of some religious objections.
Permissible restrictions
 Sovereignty and integrity of India
 Security of the state
 Friendly relations with foreign States
 Public order
 Decency and morality
 Contempt of court
 Defamation
 Incitement to an offence
RIGHT TO It is the right to citizens to assemble peacefully and without arms.
ASSEMBLE However reasonable restrictions may be imposed on this right in the interest
PEACEFULLY of:
AND WITHOUT  The sovereignty and integrity of India;
ARMS
Public order.
[ARTICLE
19(1)(B) :
Right to form Right to form associations and union is guaranteed so that the people can
association and form a group of people having the similar view, In Sitharamachary v. Dy,
union [Article 19 Inspector of School, it was held that this right necessarily implies a right
(1)©] : not to be a member of an association. Thus, no one can be compelled to
become member of an association.
The right is subject to reasonable restrictions which may be imposed in a
interest of:
 Sovereignty and integrity of India;
  Public order;
 Morality
RIGHT TO Right to move freely is confirmed only to the territory of India and it can
MOVE FREELY not be extended to travel abroad.
THROUGHOUT This right is also subject to some reasonable restrictions which may be
THE imposed:
TERRITORY OF
 In the interest of the general public ;
INDIA
[ARTICLES
For the protection of interest of any scheduled tribe.
19(1)(D) :
RIGHT TO The right to freedom of residence is intended to remove internal barriers
RESIDE AND within the territory of India to enable every citizen to travel freely and settle
SETTLE IN ANY down in any part of the state or Union territory. This freedom is also subject
PART OF to reasonable restrictions which may be imposed:
TERRITORY OF  In the interest of general public;
INDIA [ARTICLE For the protection of interest of any scheduled tribe.

19 (1)(E):
Right to practice any profession or carry on any trade, business or
occupation [Article 19 (1)(g):
Article 19 (1)(g) provides that all citizens shall have the right to practice any
profession or to carry on any occupation, trade or business.
This right is also subject to reasonable restrictions which may be imposed:
  In the interest of the general public;
 To prescribe professional or technical qualification necessary for
 carrying on any profession, trade or business;
 To enable the State to carry on any trade or business to the exclusion
of Private Citizens. This means that the creation of State monopoly
shall not be considered to deprive a citizen of the freedom of trade
and occupation.
Banking Business will be done only by the state and not by any private
person was challenged before the Supreme Court. However the Supreme
Court rejected the petition and held that the law is valid as State has got the
power to create a monopoly in its favour, [ R.C.Cooper v. Union of
India]
Article 20
PROTECTION IN Article 20 guarantees to all persons, whether citizens or non-citizens, the

RESPECT three rights. They are as follows:
OFCONVICTION  Protection against ex-post facto laws : Ex post facto laws are laws
FOR OFFENCES which punishes what had been lawful when done. If a particular act
was not an offence according to the law of the land at the time when
the person did that act, then he can not be convicted under a law
which with retrospective declares that act as a offence. Even the
penalty for the commission of an offence can not be increased with
retrospective effect.
Thus the meaning of the above two provisions is that so far as criminal law
creates a new offence or increases the penalty, it shall be applicable only to
those offences which are committed after its coming into force and can not
cover those offences which have already been committed in the past.
Exceptions:
 Protection under this Article is available only for offences and
their punishments under criminal law and not for any civil
 liability, where retrospective law can be passed.
 Article 20 prohibits the conviction under ex-post facto law only
in respect of substantive law but not in respect of procedural law
 as no one has vested right in procedure [ Shiv
Bhadur Singh v. State of Vindhya Pradesh]

 Protection against double jeopardy : No person can be
prosecuted and punished for the same offence more than once,
However if a person has been let off after prosecution, without
being punished, he can be prosecuted again.

Protection against self-incrimination: A person accused of any offence
can not be compelled to be a witness against himself. In other words, an
accused can not be compelled to state anything which goes against him.
ARTICLE 21 PROTECTION OF LIFE AND PERSONAL LIBERTY
Article 1 of the constitution confers on every person the fundamental right to
life and personal liberty. It says that “No person shall be deprived of his life
or personal liberty except according to the procedure established by law”
Thus Article 21 seeks to prevent encroachment upon personal liberty by the
executive except in accordance with law and in conformity with the
provisions of the law. The scope, application and effect of Article 21 may be
well understood through the following important judicial decisions.
In Philips Alfred Malvin v. Y.J. Gonsalvis, it was held that right to life
includes those things which make life meaningful. For instance, the right of
a couple to adopt a son.
In one of the leading cases, “life” has been interpreted as a decent life in a
democratic society.
In A.K.Gopalan v. State of Madras, a very narrow meaning was given to
the expression personal liberty confining it to the liberty of the persons i.e.,
of the body of a person. It was held that only if the person‟s otherwise his
personal liberty would be restricted in any way without violating Article 21.
That the expression “personal liberty” is not limited to bodily restraint or to
confinement to prison only is well illustrated by Kharak Singh v. State of
U.P. In this case, the question raised was of the validity of the police
regulation authorizing the police to conduct what are called domiciliary
visits against bad characters and to have surveillance over them. The court
held that such visits were an invasion on the part of the police, of the
sanctity of a man‟s house and intrusion into his personal security and his
right to sleep, and therefore violative of personal liberty of the individual,
unless authorized by a valid law.
In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi. It
was held that right to travel abroad is included within the expression
„personal liberty‟ and therefore, no person can be deprived of his right to
travel except according to the procedure established by law. Since a passport
is essential for the enjoyment of this right, the denial of a passport amounts
to deprivation of personal liberty. The view of this case was reiterated in
Meanka Gandhi v. Union of India by the Supreme Court.
At present, personal liberty includes various other liberties like right to bail,
public interest, litigation, right to free legal aid, right to speedy trial, etc.
The expression “procedures establish law” means procedure laid down by
statute or prescribed by the law of the State.
ARTICLE 22 PROTECTION AGAINST ARBITRARY ARREST AND DETENTION

Article 22 lays down certain specific safeguards against arbitrary arrest and
detention.
These safeguards are:
 A person who is arrested cannot be detained in custody, unless he
 has been informed of the grounds for such arrest;
 Such person shall have the right to consult and to be defended by
lawyer of his choice. Such person must be produced before the
nearest Magistrate within 24 hours of arrest, excluding the time of
 journey; and
 Such person shall not be detained in custody beyond 24 hours
without the authority of the Magistrate.
It may be noted that aforesaid safeguards are not available to:

  Alien enemies; and
Persons arrested or detained under preventive detention law.
RIGHT AGAINST EXPLCITATION [ARTICLES 23 & 24]
Articles 23 and 24 guarantee certain right to weaker section of the society to
prevent their exploitation by unscrupulous individuals or even by the State.
Article 23 imposes a complete ban on traffic in human beings and forced
labour, Article 24 prohibits employment o children in factories, etc.
Articles 23
Articles 23 provide that traffic is human beings and begar and other similar
forms of forced labour are prohibited and any contravention of this provision
shall be an offence punishable in accordance with law.
Traffic in human beings means to deal in men and women like goods such as
to sell or let otherwise dispose off them. It includes not only slavery but also
traffic in women or the crippled for immoral or other purposes.
Begar is a system where a person is complied to render involuntary and free
service. Even if there is payment of wages, a person cannot be compelled to
work against his will.
Article 24
Article 24 provides that no child below the age of 14 years shall be
employed to work in any factory or mine or engaged in any other hazardous
employment
RIGHT TO FREEDOM OF RELIGION [ARTICLES 25 TO 28]
Article 25
It guarantees to every person freedom of conscience and the right to profess,
practice and propagate any religion freely.
Article 26
It guarantees to every religious denomination the following rights:
 The right to establish and maintain institution for religious and
 charitable purpose
 The right to manage its own affairs in maters of religion.
 Right to own and acquire movable and immovable property.
Right to administer that property in accordance with law.
Article 27
It provides that no person shall be compelled to pay any taxes, the proceeds
of which are specifically appropriated in payment of expenses for the

promotion or maintenance of any particular religion or religious
denomination.
Article 28
It provides that no religious instructions shall be provided in any educational
institution wholly maintained out of State funds. However, this prohibition
shall not apply to any educational institution which is administered by the
State by has been established under any endowment or trust which requires
that religious instruction shall be imparted in such institution.
CULTURAL AND EDUCATIONAL RIGHT [ARTICLES 29 & 30]
Articles 29
It provides the following:
 Any section of the citizens residing in the territory of India having
distinct language. Script or culture of its own shall have the right to
 conserve the same; and
 No citizen shall be denied admission into any educational institution
maintained by the state on grounds only of religion, race, cast,
language or any of them.
Article 30
It provides the following:
1. All minorities, whether based on religion or language, shall have the
right to establish and administer educational institutions of their
choice; and
The state shall not in granting aid to educational institution, discriminate any
educational institutions, discriminate any educational institution on the
ground that it is under the management of the minority whether based on
religion or language
RIGHT TO CONSTITUTIONAL REMEDIES [ARTICLES 32]
Article 32 guarantees the enforcement of fundamental rights. Article 32

makes it a fundamental right that a person, whose fundamental right is
violated, has a right to move the Supreme Court for the enforcement of his
fundamental rights, Thus, a person nee not first exhaust the other remedies
and then go to the Supreme Court. On the other hand, he can directly raise
the matter before the highest court of the land and the Supreme Court may
pass the appropriate orders and writs for the enforcement of the right, the
violation of which has been alleged.
DIRECTIVE PRINCIPLES
OF STATE POLICY
Meaning of Directive
Principle of State Policy
Directive principles of State Policy are contained in Part IV, Articles 37 to
51, of the Constitution of India. They are declared as fundamental to the
governance of the country. The State shall apply these principles in framing
the law. But these can‟t be enforced by the intervention of the Court.
IMPORTANT Directive Principles of State Policy
Following are some of the important directive principles of state policy:
 State to secure a social order for the promotion of the welfare of the
people.
 Certain principles and policies to be followed by the State, such as :

  Equal pay for both men and women:
 The ownership and control of the material resources of the
community are so distributed as best to sub-serve the
 common goods;
 Prevention of concentration of economic wealth to the
common detriment.
 Equal justice and free legal aid.
Organization of village panchayats.
 The State shall endeavour to secure the citizens a uniform civil code
 through out the territory of India.
 The State shall endeavour to protect and improve the environment
 and to safeguard the forest and wildlife of the country.
 The State shall take steps to separate the judiciary from the
executive.
The State shall endeavour to promote international peace and security.
Relationship of There is no conflict between Fundamental Right (FR) and Directive
directive Principles of State Policy (DP). Both are important to achieve the objectives
principles of of the Constitution. But what will be the legal position if a law is enacted to
state policy with enforce a DP which violates the FR. To understand the correct position, we
fundamental may look into the various stages of development.
rights. In the initial stages, if any law was passed giving effect to FR but violating
DP then DP was totally ignored. In State of Madras v. Champakam
Dorairajan, it was held that the DP cannot override the ER. The DP has to
conform and to run as subsidiary to the FR. Subsequently, the Supreme
Court applied the principle of harmonious construction by which whenever
any law involves with FR and DP, an attempt was made to give effect to
both, to the extent possible, and when it become impossible. DP was
ignored.
Subsequently, Article 31-C was inserted in the Constitution of India by an
amendment, which provided that any law passed to give effect to the
directive principles of prevention of concentration of economic wealth to the
common determent (MRTP Act) cannot be challenged even it violates
Article 14 or 19.
Subsequently, Article 31-C was amended and its scope was widened in the
sense that any law passed to give effect to any DP cannot be challenged even
if it violates FR under Article 14 or 19.
In Keshavanand Bharti v. Union of India, the court observed that the FR
and DP are meant to supplement each other. It can well be said that the DP
prescribes the goals to be attained and FR lays down the means to achieve
them.
Therefore the present position is that the violations of FR is legally
enforceable but if it is due to any law giving effect to DP, it can not be
enforced as far as Article 14 to 19 are concerned
FUNDAMENTAL Rights and duties go hand in hand. Thus, Article 51A of Constitution of
; DUTIES India imposes the number of Fundamental duties on every citizen of India.
However, they are not enforceable in the court of law. Following are some
of the important fundamental duties:
 To abide by the Constitution and respect its ideals and institutions,
 the National Flag and the National Anthem.
 To hold and protect the sovereignty, unity and integrity of India.
 To defend the country and render National service when called upon
 to do so.
 To promote harmony and spirit of common brotherhood amongst all
the people of India transacting religious, linguistic and regional or
 sectional diversities.
 To renounce practices derogatory to the dignity of women.
To value and preserve the rich heritage of our composite culture.
ORDINANCE Normally, parliament has legislative powers and it alone can pass laws on
MAKING Union list matters. However, our constitution under Article 123 gives special
POWERS OF legislative powers to President of India by promulgating ordinance under
THE certain circumstances.
PRESIDENT Following are the important provisions regarding ordinance making powers
OF INDIA of the President of India:
The President gets the powers only when the Parliament is not functioning.
Even if one house of Parliament is not functioning, the President can pass on
ordinance.
 The President has powers to pass ordinance on the matters on which
 the Parliament has powers.
 The Councils of Ministers should suggest the passing of an ordinance
 on such matters.
 The President himself should be satisfied about the need for the
 ordinance and he cannot be compelled.
 Once an ordinance is passed, it should be placed before both the
Houses of Parliament and approved by then within six weeks of their
 respective dates of reassembly.
 The ordinance lapses if it is not approved within the aforesaid six
weeks or if it is rejected earlier or if the President himself withdraws
 the ordinance.
The ordinance cannot be challenged except on the limited grounds of mala
fide intention in passing the ordinance. [Cooper’s Case]
WRITS
Writs are extra ordinary remedies in cases where there is either no remedy
available under the ordinary law or the remedy available is inadequate.
Articles 32 and 226 of our Constitution empower anyone, whose rights are
violated, to seek writs, Under Article 32; the Supreme Court can be moved
for enforcement of fundamental right only. However, under Article 226.

High Court can be moved for enforcement of any right including
fundamental right.
WRIT OF The words „habeas corpus‟ literally means „to have body. It is a remedy
HABEAS available to a person who is confined without legal justification. Through
CORPUS this writ, the court let it know the reasons for detention of the person and if
there is no justification, order the authority concerned to se the person free.
The writ of hebeas corpus, thus, entails the authority to produce the person
before the court. The applicant of this writ may be the prisoner or any person
on his behalf to safeguard his liberty. It seeks immediate relief from
unlawful detention whether in prison or private custody
WRIT OF Mandamus literally means a command. This writ of command is issued by
MANDAMUS the Supreme Court of High court when any government, court, corporation
or any public authority has to do a public duty but fail to do so. To invoke
the performance of such duty this writ of mandamus is issued, It should be
noted that it should not be discretionary duty of the authority which is
challenged. It should be a compulsory one; the applicant too should have a
legal right to enforce such performance. It may further be noted that this writ
can not be issued against President or the Governor
WRIT OF Writ of Prohibition is issued by a superior court to subordinate court
PROHIBITION preventing latter from usurping the jurisdiction which is legally not vested in
it. The writ lies in both for access of jurisdiction or absence of jurisdiction. It
is generally issued before the trial of the case or during the pendency of the
proceeding but before the order is made. It may be noted that this writ is
available against judicial and quasi-judicial body.
WRIT OF If any lower court or a tribunal gives its decision but based on wrong
CERTIORARI jurisdiction, the effected party can move this writ for a direction against such
lower court or tribunal to ignore such decisions based on wrong jurisdiction.
The writ of certiorari issued to subordinate judicial or quasi- judicial body
when they act:
 Without or in excess of jurisdiction;
 In violation of the prescribed procedure;
 In contravention of principles of natural justice;
Resulting in an error of law apparent on the face of record.
The writs of prohibition and certiorari are of the same nature, the only
difference being that the writ of prohibition is issued at an earlier stage,
before the order is made and the writ of certiorari is available on a later stage
i.e. after the order has been passed
WRIT OF QUO The term „Quo Warranto‟ means “What is your authority”. Whenever any
WARRANTO public office is held by any one not qualified to hold it, it can be challenged
by this writ by any person. An order issued by the court to such an authority
to explain under what valid grounds he is holding such a post. It is found on
investigation that he is not entitled to be office; the court may restrain him
from acting in the office and declare the office to be Vacant. The writ of
quo-warranto to issue when:
 The office is public and of substantive nature;
 The office is created by the State or by the Constitution itself; and

The respondent must have asserted his claim to the office
DISTRIBUTION OF
LEGISLATIVE
POWERS Important
Provisions
Since India is a federal State, there is distribution of powers among the
Centre and the state. In this regard, Article 246 provides for the following
lists:
 List 1 or the Union List: This list includes subjects over which
Parliament has the exclusive poser to legislate. The list contains 97
items, some of which are defence, foreign affairs, citizenship,
 currency, judiciary, central taxes, etc.
 List II or the State List: This list contains 66 items over which the
state legislature have the exclusive power to legislate. Some of the
important items are public health and sanitation, pilgrimage, roads,
 agriculture, state taxes, etc.
 List III or the Concurrent List: This list contains 47 entries over
which both Parliament and the state legislatures can legislate, Some
of the important items are marriage, economic and social planning,
trade union, stamp duties, etc.
It may be noted that Parliament has exclusive powers to make any law with
respect to any matter which is not covered in any of three lists. This is
known as residuary powers of legislature
Power of the Parliament to make Laws on State List Matters
Normally the state legislature has the exclusive powers to make laws with
respect to subjects enumerated in the state list. But Article 246 of our
constitution empowers Parliament to make laws even on state list matters
under the following five circumstances;
 In the National Interest (Article 249) : National Interest has been
defined but whenever parliament feels that it is necessary to pass
laws on state list matters in public interest, it is covered under this
 Article.
 During proclamation of emergency (Article 250) : While
proclamation of emergency is in operation, Parliament shall have the
power to make laws for whole or any part of the territory of India on
any matter in the state list. Here emergency includes period of
 internal disturbances and external aggression etc.
 On request of two or more states (Article 252) : If there is a
dispute between two or more states and they pass a resolution in their
assemblies to refer the matter to Parliament for any law on state list
 matters concerning them, the Parliament can pass law.
Legislation for enforcing international agreements (Article 253) : If
there is any international agreement between foreign country and India, and
to give effect to such agreement if a law is to be passed, the Parliament can
pass the law ever if the matter is contained in state list

Breakdown of Constitutional machinery in a state (Article 356) :
parliament can make law with respect to all state matters as regard the state
in which there is breakdown of constitutional machinery and is under
President Rule.
FREEDOM OF The Constitution of India in Part XIII, wide Articles 301 to 305, deals with
TRDE freedom of Trade, Commerce and Intercourse. Out of these articles, Article
COMMERCE 301 creates an overall limitation on all legislative powers of the Union and
AND the State legislature. The bar on state powers to interfere in the free trade,
INTERCOURS commerce and intercourse (Article 301) is loosened by Article 302,303 and
E 304. Article 305 provides for state monopoly.
Study of the Articles 302 to 305 will reveal when and how the Constitution
of India permits the government to restrict freedom of trade, commerce and
intercourse.
Article 301: The trade and commerce throughout the territory of India shall
be free and without restriction. The restriction can generally may be way of
taxes. The taxes may be compensatory where they are levied for any service
provided it is not taken as restriction.
But if the tax is levied to regulate or to prevent certain people from carrying
on business, it amounts to restriction.
Thus the object of Article 301 is to break down the barriers between the
states and to make the country as one unit with a view to encourage trade
and commerce.
Article 302: However, the Parliament can impose restrictions on freedom of
trade commerce and intercourse in public interest.
Article 303: The Parliament while imposing restrictions under Article 302,
cannot discriminate between different state. However, the parliament can
discriminate in case of scarcity of goods. Article 304: It enables state
legislature to impose taxes on goods coming from other states, if goods
produced within the state are subjected to such taxes.
Article 305: Any law passed by the Union thereby creating the state
monopoly shall not be affected by the provision of Part XIII of the
Constitution of India
IMPORTANT TERMS
Pith and Substances Rule
The rule of pith and substance is applied when a law dealing with a subject
in one list also touches a subject in another list. In such cases the pith and
substance of the legislation i.e., the true object of legislation is to be
determined. If on such examination, it is found that the legislation in its
existence is within the legislative competent of the legislature which enacted
it, it is valid even if it accidentally encroached on a subject in another list.
Colourabe legislation
The theory being this concept is “you cannot do indirectly what you cannot
do directly”. The object of distribution of legislative powers to different
legislatures is that they ought to act within their respective boundaries
marked by the specific entries, The are some cases where the legislature
passes an Act which outwardly purports to be dealing with a subject within

its legislative competence but in substance it covers a subject not within its
powers, Such type of law is called colorable legislation and it will be struck
down by the Court.
Delegated Legislation
It refer to all law making which take place outside the legislature and is
generally expressed as rules, regulations, orders, by-law etc. In other words,
when an instrument of a legislative nature is made by an authority in
exercise of poser delegated by the legislature, it is called the delegated
legislation. The three relevant justifications for delegated legislation are:
 The limits of the time of the legislature:
The limits of the amplitude of legislature; and
 The need of some weapon for copying with situation created by
emergency.
LESSON 21
INTERPRETATION OF STATUTES
GENERAL PRINCIPLES/RULES OF INTERPRETATIONS

RULES OF  According to this rule, the words phrases and sentences of a statute
LITERAL
CONSTRUCTION/
are ordinarily to be understood in their natural, ordinary or popular and
INTERPRETATIO grammatical meaning unless such a construction leads to an absurdity
NS or the content or object of the statute suggests a different meaning.
 the objectives natures, ordinary and popular are used interchangeably.
they mean the grammatical or literal meaning, except when the words
are technical because technical words have technical meanings.
 in simple words, this rule means to give simple straightforward and fair
meaning to the provision of law. it is also known as golden or primary
rule of interpretation.
RULE OF  the maximum ut res magis valeat quam pareat i.e., the rule of
REASONABLE reasonable construction implies that statute must be constructed
CONSTRUCTI reasonably.
ON OR  a statute or any enacting provision therein must be so construed so as
DOCTRINE to make it effective and operative.
OF UT RES  a construction should be rejected if it results in hardship serious
MAGIS inconvenience, injustice, absurdity, etc.
VALEAT  in simple words, this rule means that if any word in a law can be given
QUAM more than one meaning, then the court gives the reasonable meaning
PAREAT relevant to the circumstances, if the litera-leegis i.e., the letter of the
circumstances, if the litera-legis i.e., the letter of the law is not clear,
the interpretation must be ratio-legis,i.e according to the purpose,
policy, object or spirit of law.
MISCHIEF  Numbers of laws are made to cure a mischief. the mischief rule of
RULE OR interpretation is based on this reason and it states that interpretation
HEYDON‟S should be made in such way that it is able to cure that mischief for
RULE which the law had been made. thus, law should be interpreted in such
a way so that it suppresses the mischief and advances the remedy.
 It may be noted that mischief rule is applicable only when a particular
rule is ambiguous and capable of different meanings. in such a case,
the meaning which can suppress the mischief and advance the
remedy should be taken and other meaning should be discarded. thus
where a law is clear and can have only one meaning, this rule shall not
apply. [cit v. sodra devil]
HARMONIOUS  When a different section is an enactment is to be interpreted, they
CONSTRUCTION
should be done in such a way that the act as a whole serves a useful
purpose. it may be possible that different sections may appear to mean
contrary to each other or contradicting each other.
 Under such circumstances, an attempt should be made to reconcile
the provisions of the act and an effect should be made to give the
effect to both the apparently contradictory provisions. thereby a head
on clash between sections of the act is avoided. this is known as
harmonious construction.
that effect should be given to both the law, is the very essence of the rule of
harmonious construction. thus a construction that reduces one of the
provisions to a dead letter is not harmonious construction.
RULE OF the literal meaning of the term ejusdem generic is “of the same kind or
EJUSDEM species”. if any general words such a „like‟,‟ so on‟. etc follow specific words,
GENERIS the general words should include only those meaning which can be given to
the specific words. for example, printing, bleaching, dying, etc. the rule
requires that where specific words are all of one genius, meaning of the
general words shall be restricted to that genus only, unless there is something
to show that a wider meaning was intended.
the rule of ejusdem generic applies only when the following conditions are
satisfied:
 the statute contains an enumeration of specific words;
 the members of enumeration constitute a class or category;
 the class/ category is not exhausted by the enumeration;
 the general term follows the enumeration; and
there is no indication of different legislative intent.
EXPRESSIO  The rule literally means that express mention of one thing implies the
UNLS EST exclusion of another.
EXCLUSIO  In other words, mention of one or more things of particular class may
ALTERIUS be regarded as silently excluding all other members of the class.
 Thus where a statute uses two words or expressions, one of which
generally includes the other, the more general term is taken in a sense
excluding the less general one; otherwise they would have been little
point in using the letter as well as the former.
 It may be noted that this maxim ought not to be applied, where its
application lead to inconsistency or injustice.
CONTEMPORANEA
EXPOSITIO EST
 The rule literally means that a contemporaneous exposition is the best
OPTIMA ET and strongest in the law.
FORTISSIMA LEGE  It is said that the best exposition of the statute or any other document
is that which it has received from contemporary authority.
 The language of the statute must be understood in the sense in which
it was understood when it was made.
 It may be noted that the application of this doctrine is confined to the
construction of ambiguous language used in very old statutes where
indeed the language itself might have had a rather a different meaning
on those days.
NOSCITUR A
SOCIIS
 The rule literally means that a word is known by its associates. in other
words, the meaning of the word is to be judged by the company it
keeps.
 When two or more words having the analogous meaning are coupled
together, they are understood in their cognate sense. they take their
colour from each other.
 The supreme court, while interpreting the expression “powers, privilege
or immunities of a house of the state legislature”, held that the word
„powers‟ must take its colour from the words in immediate connection
with it and that it should be construed to refer not to legislative posers
but to powers of house which are necessary for the conduct of its
business. [state of karnataka v. union of india]
STRICT AND
LIBERAL
 The words of a statute are to be constructed in the manner in which
CONSTRUCTION they are stated in the act.
 The state is not to be regarded as including any thing which is not
within its letter and its spirit and which is not clearly and manifestly
described in the words of the statute itself.
 It may be noted that the words of a penal statute which creates an
offence or prescribes punishment are construed very strictly.
 Where the usual meaning of the words falls short of the object of the
legislature, a more extended meaning may be attributed to them.
 It has been held in many cases that it is the duty of the judge to make
such construction of a statute as shall suppress the mischief and
advance the remedy or which fulfills the objective thought behind in
enactment of that law.
AIIDS OF There are two kinds of aids of interpretation i.e., internal & external aids of
INTERPRETA interpretation.
TION
internal aids of  title : the long title is set out at the head of the statute and gives a
interpretations fairly full description of the general purpose, object and scope of the
act. it is now settled that the long title of an act is the part of the act
and it is legitimate to use it for the purpose of interpreting the act as a
whole.
 preamble: a preamble may afford useful light as to what a statute
intends to achieve. it may be noted that the preamble can be taken s
an aid in interpretation of law only if that law is not clear and
ambiguous in nature, otherwise not.
 headings : the headings prefix to sections, chapters and parts of
statute can be used in constructing the provision of an act, but only in
cases where the enacting words are ambiguous.
 marginal notes : marginal notes are often found printed at the side of
the sections in an act. they purport to summaries the effect of the
section and have sometimes be used as an aid to interpretation.
 interpretation clause : interpretation clause consists of definitions of
various words which are frequently used throughout the act. whenever
a word has been defined in interpretation clause, prima facie that
definition governs whenever that word is used in the body of the
statute. however, if in a particular context, different meaning of a word
is given, then the different meaning will be used and general meanings
will be discarded for the purpose of interpretation.
 provisos : provisos are the various conditions appended to a section
in an act. a particular section will be applicable only if the conditions
specified in its provisio are satisfied.
 illustrations: illustrations attached to sections are part of the statute
and they are useful so far as they furnish some information which
helps in interpretation.
 explanation : an explanation is, at times, appended to a section to
explain the meaning of words contained in the section. it becomes the
part and parcel of an enactment.
schedules : the schedules form a part of the statute and must be read
together with it for the purpose construction.
statement of objects and reasons: the fact that parliament has passed the
provisions of the statement of objects given sanction to them and thus they
are a valid aid in the interpretation of provisions.
External Aids following are important external aid of interpretation:
of  parliamentary history: the supreme court, on many occasions, has
Interpretation used this aid of parliamentary history i.e., debates and discussions of
the parliament while making that law, in resolving questions of
construction.
 historical facts and circumstances: it has already been established
that the court is entitled to take into account such external or historical
facts as may be necessary to understand the subject matter of the
statute.
 reference to reports of committee: the report of a select committee
or other committees on whose report an enactment is based, can be
looked into for the interpretation of statute.
 reference to other statutes: it has already been established that
reference to other statutes in “pari meteria” i.e., statutes dealing with
the same subject matter, is permitted.
 dictionaries: when a word is not defined in the act itself, it is
permissible to refer to dictionaries to find out the general sense in
which that word is understood in common parlance.
 use of foreign decision: use of foreign decisions of countries,

following the same systems of jurisprudence as ours, and rendered on
statutes in „pari materia‟, has been permitted by practice courts.
Lesson 22
Section-I
SPECIFIC RELIEF ACT 1963
Introduction The term „relief‟ means the remedy granted for some wrong or injury.
There are two types of remedies:
 Remedy by which the aggrieved party obtains the same thing to which
he is entitled.
 Remedy by which the aggrieved party does not obtain the very thing to
which he is entitled but compensation for the loss.
The first remedy is to “Specific Relief”. While the second remedy is the
“Compensatory Relief‟s Thus, specific relief is a relief in specie which aims at
the “exact” fulfillment of an obligation. It is also known as equitable relief.
The concept of specific relief is governed by various provision of Specific Relief
Act, 1963.
Principles Following are the principles upon which remedy of
upon which specific relief is granted:
specific  Damages is not an adequate remedy: Where damages in money are
relief is not an adequate remedy or relief, the court grants the remedy of specific
granted relief.
 Dissertation of the Court: An aggrieved party can always apply for the
specific relief but whether specific relief will be granted or not it depends
upon the discretion of the court. But this discretion of the court is not
arbitrary, depending upon the will and pleasure of the court. It has to be
exercised on sound and established principles of equity.
 Specific relief granted only for enforcing individual and civil rights
and no for enforcing Panel laws: Specific relief can be granted only
for the purpose of enforcing individual civil rights. Thus, enforcement of
Penal law is not possible, except where enforcement of a panel law is
merely incidental to the grant of specific relief.
Recovery of  The Specific Relief Act, 1963 lays down the law in this regard under the
Possession following two heads;
of Property  Recovery of immovable property; and
 Recovery of movable property.
Recovery of  The Specific Relief Act, 1963 provides for the recovery of the
Immovable possession of immovable property on the strength of:
Property  Title; and
 Possession
Recovery on  A person entitled to the possession of specific immovable property may
the strength recover it in the manner provided by the Code of Civil Procedure, 1908.
of title According to this, he may file for ejectment on the strength of his title of
[Section 5] property within 12 years from the date of dispossession
Recovery on  A person may sometimes be dispossessed without his consent of
the strength immovable property otherwise than in due course of law. Such a person
of may file a suit, within six months from the date of dispossession, for the
Possession recovery of possession of such property. Following are the important
[Section 6] points in this regard:
 Plaintiff was disposed without his consent and otherwise than in due
course of law.
 A suit can be instituted even against the rightful owner of the property.
 No suit under section 6 can be brought against the government.
 No appeal and no review of he order or decree passed under section 6
is allowed.
Recovery of A person who is entitled to the possession of specific movable property may
possession recover the possession of that property if he is disposed of that property, in the
of manner provided by the Code of Civil Procedure, 1908.
Immovable To recover the possession under section 7, following points may be noted:
Property  The property to be recovered must be capable of being ascertained and
[Section 7] identified.
 The person suing must have a right to the immediate possession of the
property.
 Trustee may sue for the possession of movable property which is held
by him in trust.
 A person having a special or temporary right to the possession of
property may also file a suit.
Section 8: This section deals with the liability of a person having the
possession of a movable property of which he is not a legal owner.
To apply Section 8, following conditions must be satisfied:
a) The defendant have the possession or control of the movable property;
b) The defendant is not the owner of the movable property; and
c) Plaintiff have the right to the immediate possession of the movable
property
If the above conditions are satisfied, the defendant can be compelled to
deliver the property to the plaintiff in the following cases:
1) When the property or thing is held by defendant as an agent or trustee
of the plaintiff.
2) When the compensation in money is not adequate for the property.
3) When it is not possible to ascertain the damage suffered from the loss of
article.
When the possession of thing or article has been wrongly transferred from the
plaintiff.
Difference Following are the important points of difference between Section 7 and Section
between 8:
Section 7 &  Section 7 provides a general relief, whereas Section 8 provides a
Section 8 special relief.
 Under section 7, even the owner of the movable property can be
sued. However, it is not possible under Section 8.
 Under Section 7, money compensation may be alternative

remedy, whereas specific relief is the only remedy under Section
8.
Specific  Specific performance is an equitable relief given by the court in cases of
Performance breach of contract. It is in the form of judgment by the court ordering the
of Contract defendant o actually perform the contract according to its terms and
Introduction condition. In the case of breach of contract, compensatory relief can also
be granted but in some cases such relief may not be adequate and
hence specific relief is granted. However, the defendant can also take
the various defences in order to avoid the specific performance of
contract. The subject of specific performance may be discussed under
the following heads:
 Contract which may be specifically enforced.
 Contracts which cannot be specifically enforced.
 Defences to an action for specific performance.
 Parties to an action for specific performance.
Contract The specific performance of any contract may be enforced in the following
may be cases:
specifically  When there exists no standard for determining the actual damage
enforced caused as a result of non-performance of contract.
Section 10:  When compensation in money is not an adequate relief for the non-
performance of the contract.
Section 10 further provides that, until and unless the contrary is proved, the
court shall presume the following:
 In case of breach of contract of transfer of immovable property, the
compensation in money is not an adequate relief.
 In case of breach of contract of transfer of movable property, the
compensation in money is an adequate relief. However in the
following cases, the court shall presume that the compensation in
money is not an adequate relief:
 When compensation in money is not an adequate relief.
 When the property is of special value or interest to the plaintiff.
 Where the property consists of goods which are not easily available
in the market.
 Where the property is held by the defendant as the agent/ trustee of
the plaintiff.
Section 11: Specific performance of the contract may be enforced when the act
agreed to be done is the performance of a trust.
Specific  The general rule is that the court normally does not grant the specific
Performance performance of only a part of a contract. However, the court may direct
of part of the specific performance of a part of a contract in the following cases:
contract  Part left underperformed proportionately small and can be compensated
[Section 12] in money.
 Part left unperformed considerably large, if the plaintiff relinquishes all
claim to further performance and all rights to compensation.
 Separate and independent part.

Contract Section 14: Following contracts can not be specifically enforced:
which can  A contract in which compensation in money is an adequate relief for the
not be nonperformance of such contract.
specifically  A contract requiring supervision of the court as the court‟s time is
enforced precious.
 A contract depending upon personal qualification or volition of parties.
 A contract which runs into such minute and numerous details which
court could not enforce.

 A contract of such nature that court cannot enforce its specific
performance.
 A contract which by it nature is a determinable contract. A determinable
contract is a contract which can be terminated by any of the parties to a
contract.
 A contract to refer present future disputes to arbitration except provided

by the arbitration law.
Contract to A contract to sell or let any immovable property cannot be specifically enforced
sell or let in the following cases where
property by  A seller or a lesser does not have any title to the property;
one who has  Where the seller or lesser cannot give the purchases/ lessee a free title
no title at the time fixed by the parties or court.
[Section 17]
Section 20 In the following cases, the court can use its discretion and may reject the
specific relief:
 Contract giving unfair advantages to the plaintiff.
 Performance involving hardships on the dependant.
When the enforcement makes it inequitable.
Section It lays down the exceptions where the court may enforce the specific
14(3) performance in the following cases:
 Where the suit is for the enforcement of a contract to execute a
mortgage or furnish a security for securing the repayment of a loan
which the borrower is not willing to repay.
 Where the suit is for the performance/ enforcement of a contract to take
up and pay for the debentures of a company.
 Where the suit is for the executing the formal deed of partnership and
the parties have commenced the business OR purchasing of shares of
parties in a firm,
 Where the suite is for the performance of contract for the construction of
any building or the execution of any other work on land provided the
following conditions are satisfied:
 The building or other work is described sufficiently in the
contract:
 The plaintiff has substantial interest in the performance of a
contract:
 Compensation in money is not an adequate relief for the non-
performance of contract; and
 The defendant has obtained the possession of land where the
work is to be done.
Defences of The following defences may taken by a defendant against a suit for specific
an action for performance of contract:
specific  Contract by trustee in excess o his powers,
performance  Specific performance of a part of a contract where unperformed part is
large or substantial.
 Unperformed part of a contract not separate and independent.
 Contracts not specifically enforceable.
 Non enforcement except with variations,
For example. A sues B to compel specific performance of contract in writing to

buy a house. B proved that he assumed that the contract included house and
adjoining garage and a contract was so framed as to leave it doubtful weather
the garage was included or not. The court will refuse to enforce the contract
except with the variations set up by B,
delay or  If time is the essence of the contract and there is failure on the part of
laches the plaintiff to perform his part of the contract, then the defendant can
take a defence to an action for specific performance of contract
parties to an  The law on the parties to an action may be discussed under the
action for following two heads:
specific A. Persons who may obtain specific performance; and
performance B. Persons against whom contracts maybe specifically enforced
parties who  Parties to the contract: The general rule is that the specific performance
may obtain of the contract may be obtained by parties to the contract.
specific  Representative in Interest: The specific performance of a contract may
performance also be obtained by the representative in interest or the principle of any
[section 15] party therein.
 Any person beneficially entitled: Where the contract in settlement of
marriage or a compromise of doubtful right between the members of
some family, any person beneficially entitled there under may claim
specific performance.
 Remainder Man: Remainder man means a man to whom the remaining
interest in a property vast office the happening of a certain specified
event.
 Reversioner: Person having the Reversionary Interest.
However in the following case, a specific performance of a contract cannot
be enforced against a person. [Section 16]:
 A person who would not to be entitled to recover compensation for its
breach.
 A person who has become incapable of performing.
 A person who violates any essential terms of contract.
 A person who act in a fraudulent manner.
 A person who varies the terms and conditions of the contract in a
wrongful manner.
 A person who fails to perform his part of the contract or fails to prove
that he is willing to perform his part of the contract.
Persons  Specific performance of a contract may be enforced against the
against following person:
whom  Either party thereto;
contract  Any other person claiming under him by a title arising subsequently to
may be the contract. However against a transferee for value who has paid his
specifically money in good faith and without notice of original contract, specific
performed performance can not be granted;
[Section 19]  Any person claiming under a title which, though prior to the contract and
known to the plaintiff, might have been displayed by the defendant.
For example, A, a tenant for life of the property, with remainder to B, in due
exercise of the power conferred by the settlement under which he is tenant for
life; contract to sell the property C, who has notice of the settlement. Before the
sale is completed, A dies, C may enforce specific performance of a contract
against B
Meaning of  A declaratory decree of the court is a decree which declares that the
declaratory plaintiff is entitled to any legal character or any legal right as to any
decree property against the defendant who denies his title to such character or
[Section 34] right.
 The main object of section 34 is to dispel a cloud cast upon the legal
character or title of the plaintiff who seeks the aid of the court to get the
declaration so that he can peacefully enjoy the legal character or title
without any fear or disturbance.
Requisites  The court may issue a declaratory decree, if the following conditions are
for the fulfilled:
purpose of  The plaintiff is entitled to any property.
declaratory  The defendant denies the plaintiff‟s title to such legal character or
decree right;
 The declaration asked for is for legal character or right to
property only;
 The plaintiff is not able to claim further relief other then
declaration: and
 The court is satisfies that the relief is proper
Effect of A declaration decree passed under Section 34 is binding only on the following
Declaration persons:
[Section 35]  The parties to the suit;
 The persons claiming through them respectively; and
 The persons for whom any of the parties to the suit are trustees.
Thus, declaration under section 34 is a judgment in personam and not a
judgment in rem. Hence, it is not binding on strangers.
For example, A, a Hindu in a suit to which B, his alleged wife and her mother
seeks a declaration that his marriage was duly organized and an order for the
restitution of conjugal rights. The court makes the declaration and order, C,
claiming that N is his wife then sues A for the recovery of B. The declaration
made in the former suit is not binding upon C.
Preventive relief means the relief where a party to the contract is prevented
from doing particular act, which he is under an obligation not to do. Preventive
relief is granted under the discretion of court by way of Injunction. Injunction is a
judicial process whereby a party is ordered to refrain from doing or to do a
particular act or thing.
 Temporary injuction: A temporary injuction means an injuction which is
to continue until a specific time or until the further orders of the court. It
may be granted at any stage of the suit and does not conclude or
determine the right. This is also known as interlocutory or interim
injuction.
 Perpetual Injuction: A perpetual injuction can be granted by decree
made at the hearing and made upon the merits of the suit. It is granted
only after full trial or hearing or the case, when a right is firmly
established.
 Mandatory Injuction: Sometime to prevent the breach of an obligation,
it may be necessary to compel the performance of certain acts. If a court
is capable of enforcing the performance of those acts, it may grant an
injuction to prevent the breach complained of and also to compel the
performance of the requisite act. This injuction is known as mandatory
injuction.
Ex-parte Injunction : Where the facts and circumstances of the case require
that an injunction should be granted in favour of one party without hearing the
other party, the court may do so. This is known as ex-parte injunction.
Injuction to  Sometime a contract may comprise of two agreements i.e., an
perform affirmative agreement, to do a particular act and a negative agreement,
Negative not to do a certain at. In such a case, if the court is unable to compel the
Agreement specific performance of the affirmation agreement, it may grant an
[Section 42] Injunction to perform the negative agreement.
Following are the essential requirements of Section 42:
 The contract must consist of two agreements i.e., positive and negative
agreement;
 The contract must be divisible and the negative part must be capable of
being separated from the rest of the contract: and
The applicant must not have failed to perform the contract so far as it is binding
on him.
Lesson 22
Section II
LAW RELATING TO TORTS
Introduction  The word „tort‟ is a French equivalent of English word „wrong‟. The
word tort is derived from Latin language from the word Tortum. Thus,
simply stated „tort‟ means wrong. But every wrong or wrongful act is not
a tort. Tort is really a kind of civil wrong as opposed to criminal wrong.
Wrongs, in law, are either public or private.
 Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil
wrong which is not exclusively a breach of contract or breach of trust.”
General  The act complained of, should under the circumstances, be legally
Conditions of wrongful as regards the party complaining. In other words, it should
Liability for a prejudicially affect any of the above mentioned interests, and protected
Tort by law.
[Wrongful  Eg. right of reputation, right of bodily safety and freedom, and right to
Act] property are violated without legal excuse, has a right of action against
the person who violated them, whether loss results from such violation
or not.
Legal  As was stated in Ashby v. White, (1703) 2 Ld. Raym. 938 legal damage
damages is neither identical with actual damage nor is it necessarily pecuniary.
Two maxims, namely :
Damnum  The maxim means a man may have suffered damage and yet have no
Sine Injuria action in tort, because the damage is not to an interest protected by the
law of torts.
 Thus, if I own a shop and you open a shop in the neighbourhood, as a
result of which I lose
 some customers and my profits fall off, I cannot sue you for the lose in
profits, because you are exercising your legal right.
Injuria Sine  Where there is no damage resulted yet it is an injury or wrong in tort,
Damno i.e. where there is infringement of a legal right not resulting in harm but
plaintiff can still sue in tort.
 The leading example is the case of Ashby v White referred to above
where a person was wrongfully not allowed to vote and even though it
has not caused him any damage, since his legal right to vote was
denied, he was entitled to compensation
Legal  The third condition of liability for a tort is legal remedy. This means that
Remedy to constitute a tort, the wrongful act must come under the law. The
main remedy for a tort is an action for unliquidated damages, although
some other remedies, e.g., injunction, may be obtained in addition to
damages or specific restitution may be claimed in an action for the
detention of a chattel.
For example, if “A” finds a drunken stranger in his room who has no business
to be there in it, and is thus a trespass, he (A) is entitled to get rid of him, if
possible without force but if that be not possible with such force as the
circumstances of the case may warrant.
Mens Ria  The General principle lies in the maxim “actus non facit reum nisi
mens sit rea” i.e. the act itself creates no guilt in the absence of a
guilty mind.
 It does not mean that for the law or Torts, the act must be done with an
evil motive, but simply means that mind must concur in the Act, the act
must be done either with wrongful intention or negligence.
 For example, under criminal law, mens rea must be proved. However,
to this principle cases of absolute or strict liability are exceptions.
Kinds of The following types of tortuous liability may be noted:
Tortious
Liability
( A ) Strict or In some torts, the defendant is liable even though the harm to the plaintiff
Absolute occurred without intention
Liability or negligence on the defendant‟s part. In other words, the defendant is held
liable without fault.
These cases fall under the following categories:
 Liability for Inevitable Accident – Such liability arises in cases where
damage is done by the escape of dangerous substances brought or
kept by anyone upon his land. Such cases are where a man is made by
law an insurer of other against the result of his activities.
 Liability for Inevitable Mistake – Such cases are where a person
interferes with the property or reputation of another.
 Vicarious Liability for Wrongs committed by others – Responsibility
in such cases is imputed by law on grounds of social policy or
expediency. These case involve liability of
master for the acts of his servant.
The facts of this case were as follows:
 B, a mill owner employed independent contractors, who were
apparently competent to construct a reservoir on his land to provide
water for his mill.
 There were old disused mining shafts under the site of the reservoir
which the contractors failed to observe because they were filled with
earth.
 The contractors therefore, did not block them. When the water was
filled in the reservoir, it bursted through the shafts and flooded the
plaintiff‟s coal mines on the adjoining land.
 It was found as a fact that B did not know of the shafts and had not
been negligent, though the independent contractors, had been, B was
held liable. Blackburn,
J., observed; “We think that the true rule of law is that the person, who for his
own purposes brings on his lands and collects and keeps there anything likely
to do mischief if it escapes, must keep it at his peril and if, he does not do so
is, prima facie answerable for all the damage which is the natural consequence
of its escape.”
Exceptions to The following exceptions to the rule of strict liability have been introduced in
the „Rule of course of time, some of them being inherent in the judgment itself in Ryland v.
Strict
Liability‟ Fletcher:
 Damage due to Natural Use of the Land
In Ryland v. Fletcher water collected in the reservoir in such large
quantity, was held to be non-natural use of land. Keeping water for
ordinary domestic purpose is „natural use‟. Things not essentially
dangerous which is not unusual for a person to have on his own land,
such as water pipe installations in buildings, the working of mines and
minerals on land, the lighting of fire in a fire-place of a house, and
necessary wiring for supplying electric light, fall under the category of
“natural use” of land.
 Consent of the plaintiff
Where the plaintiff has consented to the accumulation of the dangerous
thing on the defendant‟s land, the liability under the rule in Ryland v.
Flethcher does not arise. Such a consent is implied where the source
of danger is for the „common benefit‟ of both the plaintiff and the
defendant.
Act of Third Party
If the harm has been caused due to the act of a stranger, who is neither
defendant‟s servant nor agent nor the defendant has any control over
him, the defendant will not be liable. Thus, in Box v. Jubh (1879) 4 Ex.
D. 76, the overflow from the defendant‟s reservoir was caused by the
blocking of a drain by stranger, the defendant was held not liable. But if
the act of the stranger, is or can be foreseen by the defendant and the
damage can be prevented, the defendant must, by due care prevent
the damage. Failure on his part to avoid such damage will make him
liable.
 Statutory Authority
Sometimes, public bodies storing water, gas, electricity and the like are
by statute, exempted from liability so long as they have taken
reasonable care. This is based on the principle that they act in public
interest.
 Act of God
If an escape is caused, through natural causes and without human
intervention circumstances which no human foresight can provide
against and of which human prudence is not bound to recognize the
possibility, there is then said to exist the defence of Act of God.
 Escape due to plaintiff’s own Default
Damage by escape due to the plaintiff‟s own default was considered to
be good defence in
Rylands v. Fletcher itself. Also, if the plaintiff suffers damage by his own
intrusion into the defendant‟s property, he cannot complain for the damage so
caused.
Vicarious Normally, the tortfeasor is liable for his tort. But in some cases a person may
Liability be held liable for the tort committed by another. A master is vicariously liable
for the tort of his servant, principal for the tort of his agent and partners for the
tort of a partner. This is know as vicarious liability in tort. The common
examples of such a liability are:
 Principal and Agent [Specific authority]
 Partners
 Master and Servant [Authority by relation]
 Employer and Independent Contractor
 Where Employer is Liable for the acts of Independent Contractor
 Where Employer is not Liable for the acts of an Independent
Contractor
Liability for the acts of Servants
Torts or  An action for damages lies in the following kinds of wrongs which are
wrongs to styled as injuries to the person of an individual:
personal
safety and
freedom
Battery  Any direct application of force to the person of another individual
without his consent or lawful justification is a wrong of battery. To
constitute a tort of battery, therefore, two things are necessary:
 use of force, however, trivial it may be without the plaintiff‟s
consent, andwithout any lawful justification.
 Even though the force used is very trivial and does not cause any
harm, the wrong is committed.
Thus, even to touch a person in anger or without any lawful justification is
battery.
Assault  Assault is any act of the defendant which directly causes the plaintiff
immediately to apprehend a contact with his person.
Thus, when the defendant by his act creates an apprehension in the mind of
the plaintiff that he is going to commit battery against him, the tort of assault is
committed.
The law of assault is substantially the same as that of battery except that
apprehension of contact, not the contact itself has to be established.
Usually when there is a battery, there will also be assault, but not for instance,
when a person is hit from behind.
 To point a loaded gun at the plaintiff, or
 to shake fist under his nose, or
 to curse him in a threatening manner, or
 to aim a blow at him which is intercepted, or
 to surround him with a display of force
is to assault him clearly if the defendant by his act intends to commit a battery
and the plaintiff apprehends it, is an assault.
Bodily Harm  A willful act (or statement) of defendant, calculated to cause physical
harm to the plaintiff and in fact causing physical harm to him, is a tort
False  False imprisonment consists in the imposition of a total restraint for
Imprisonment some period, however short, upon the liberty of another, without
sufficient lawful justification. It means unauthorized restraint on a
person‟s body.
 What happens in false imprisonment is that a person is confined within
certain limits so that he cannot move about and so his personal liberty
is infringed.
Malicious  Malicious prosecution consists in instigating judicial proceedings
Prosecution (usually criminal) against another, maliciously and without reasonable
and probable cause, which terminate in favour of that other and which
results in damage to his reputation, personal freedom or property.
 The following are the essential elements of this tort: There must have
been a prosecution of the plaintiff by the defendant.
 There must have been want of reasonable and probable cause for that
prosecution.
 The defendant must have acted maliciously (i.e. with an improper
motive and not to further the end of justice).
 The plaintiff must have suffered damages as a result of the
prosecution.
 The prosecution must have terminated in favour of the plaintiff.
Nervous  This branch of law is comparatively of recent origin. It provides relief
Shock when a person may get physical injury not by an impact, e.g., by stick,
bullet or sword but merely by the nervous shock through what he has
seen or heard.
 Causing of nervous shock itself is not enough to make it an actionable
tort, some injury or illness must take place as a result of the emotional
disturbance, fear or sorrow.
Defamation  Defamation is an attack on the reputation of a person. It means that
something is said or done by a person which affects the reputation of
another. It is defined as follows:
“Defamation is the publication of a statement which tends to lower a person in
the estimation of right thinking members of society generally; or which tends to
make them shun or avoid that person.
Defamation may be classified into two heads: Libel and Slander.
 Libel is a representation made in some permanent form, e.g. written
words, pictures, caricatures, cinema films, effigy, statue and recorded
words. In a cinema films both the photographic part of it and the
speech which is synchronized with it amount to tort.

Slander is the publication of a defamatory statement in a transient form;
statement of temporary nature such as spoken words, or gestures.
Remedies in Judicial Remedies
Torts Three types of judicial remedies are available to the plaintiff in an action for tort
namely:
 Damages or Compensation,
 Injunction, and
 Specific Restitution of Property.

Extra Judicial  In certain cases it is lawful to redress one‟s injuries by means of self
Remedies help without recourse to the court. These remedies are:
Self Defence  It is lawful for any person to use reasonable forces to protect himself, or
any other person against any unlawful use of force.
Prevention of  An occupier of land or any person with his authority may use
Trespass reasonable force to prevent trespassers entering or to eject them but
the force should be reasonable for the purpose.
Re-entry on  A person wrongfully disposed of land may retake possession of land if
Land he can do so in a peaceful and reasonable manner.
Re-caption of  It is neither a crime nor a tort for a person entitled to possession of a
Goods chattel to take it either peacefully or by the use of a reasonable force
from one who has wrongly taken it or wrongfully detained it.
Abatement of  The occupier of land may lawfully abate (i.e. terminate by his own act),
Nuisance any nuisance injuriously affecting it. Thus, he may cut overhanging
branches as spreading roots from his neighbour‟s trees, but
 upon giving notice;
 by choosing the least mischievous method;
 avoiding unnecessary damage.

Distress  An occupier may lawfully seize any cattle or any chattel which are
Damage unlawfully on his land doing damage there and detain them until
Feasant compensation is paid for the damage.
 The right is known as that of distress damage feasant-to distrain things
which are doing damage. It is a legal seizure and detention of cattle or
chattel till compensation is paid for the damage.
Lesson - 22
Section III
Limitation Act, 1963
Introduction  The object of the Limitation Act, 1963 is to prescribe the period within
existing rights can be enforced in courts of law.
 The principal in which the law of limitation is base is “vigilantibus
non dormientibus leges subvenient” i.e. the, law aids the diligent
and not the indolent. This is because with passage of time all
evidence of the facts may be lost.
Limitation  The law of limitation only bars the remedy by way of the suit i.e., if the
Bars Remedy period of limitation expires, the party entitled to file a suit for the
but does not enforcement of a right is debarred from doing so.
Extinguish  However, the original right on which the suit was to base is not
Right barred. Thus, limitation only bars the judicial remedy but it does not
extinguish the right.
 For example, where the recovery of a debt has become time barred
by the lapse of the prescribed period limitation, the right to the debt is
not extinguished.
 If the debtor, without being aware of the bar of time, pays the debt he
cannot sue the creditor to refund the money to him on the ground that
his claims for the recovery of the debt had become time barred.
 It may be noted that there is one exception to the aforesaid rule which
is contained in Section 27 of the Limitation Act, 1963. It provides that
where a person‟s right to institute the suit for the possession of any
property has become barred by limitation his right to the property itself
shall be extinguished.
Limitation is  The statutes of limitation are statute of repose because they
the statue of extinguish stale demands and quite titles.
Repose, Peace  They lay, at rest; claims which might otherwise have disturbed the
and Justice peace of community. They secure peace by ensuring security of rights
and secure justice as by lapse of time evidence may have been
destroyed.
 In S.C. Parashar v.Vasant Sen, the Supreme Court has rightly
observed that the statute of limitation is a statute of repose, peace and
justice.
 The intention of the law of limitation is not to give a right where there
is not one, but to interpose a bas after certain period to a suit to
impose an existing right. The object is to compel the litigant to be
diligent in seeking remedies in court of law.
Concept of  Concept of time barred is incorporated in Section 3 of Limitation Act,
Time Barred 1963. According to this section, every suit must be instituted, appeal
[Section 3] must be preferred and application must be made within the period of
limitation as specified in the schedule II of Limitation Act.
 The provisions of this section are absolute and mandatory. The court
will not proceed with the suit; application made beyond prescribed
period of limitation and is liable to be dismissed when the suit, appeal
or application has become time barred.
Doctrine of  The general rule is that the suit, appeal or application must be made
Sufficient within the prescribed period of limitation.
cause for  However, there is an exception to this general rule which provides that
extension of the court may admit an application or appeal even after the expiry of
time or prescribed period of limitation, if it is satisfied that the applicant or the
condonation appellant has been prevented by some sufficient cause, from not
of delay making the application or preferring the appeal within the prescribed
[Section 5] period of limitation.
 It may be noted that doctrine of sufficient cause is not applicable in
the following cases:
 Application made under any of the provisions of Order XXI of
CPC, 1908 and
 Suits.
 The expression „sufficient cause‟ had not been defined under the
limitation Act, 1963. However, a cause in order to be sufficient cause
must be a cause which is beyond the control of the party invoking this
section.
 For example, illness of the party, mistake of the counsel, mistake o
law, and not ignorance of law, etc. are some of the instance of
sufficient cause.
 The burden to prove sufficient cause for delay in filling an application
or appeal lies on the party applying for condonation of delay under
section 5. However, it is the discretion of the court to grant extension
of time or not.
Period of  The period of limitation starts from the date on which the cause of
Limitation in action has arisen but in the case of persons suffering from some legal
the case of disability, the period of limitation runs from the date of the cessation of
persons under disability.
legal disability  The rules to this effect are contained in section 6, 7 and 8.
[Section 6, 7 &
8]
[Section 6]  Section 6 provides that a person is under a legal disability if such
person is a minor, (the term minor includes child in the womb) insane
and idiot. In such cases, the persons will be entitled to fresh starting
point of limitation from the date on which the legal disability ceases to
exist subject to the following conditions:
 Such a legal disability must be existing at the time from which
the period of limitation is to be commenced; and
 The person under legal disability must be entitled to institute
the suit or make an application.
 If a person is affected by several disability at one point of time, then

the person may institute o suit or make an application after all
disabilities have ceased.
 If one legal disability is followed by another legal disability, then the
person may institute a suit or make an application after all disabilities
have ceased.
 If the legal disabilities continue up to the death of the person under

such disability, then his legal representative may institute the suit or
make the application within the same period after the death, as would
otherwise have been allowed from the time specified in the schedule
to the Act.
It may be noted that section 6 does not apply to appeals.
Section 7  Section 7 is applicable where several persons are jointly entitled to
institute the suit or make an application for execution of a decree and
out of the several persons, one or some of them are affected by „ legal
disability‟.
 The period of limitation in such a case is to be reckoned, depending
upon whether discharge can be made with or without the consent of
the person under legal disability.
 If the discharge can be given with the consent of such person, he

period of limitation will start only after the disability is removed. On the
other hand, where consent of the person under legal disability is not
required time will run against them all.
 It may be noted that section 7 is not applicable to appeals.
Section 8  Section 8 is an exception to section 6 and 7 controls both these
sections. According to Section 8, the period of limitation can not
extend beyond three years from the date of cessation of legal
disability.
 However, if the ordinary period of limitation computed from the original
accrual of the cause of action expires more than 3 years after the
cessation disability, such period will be allowed.
Continuous  Section 9 of the Limitation Act, 1963 provides that where the limitation
Running of period has started, no subsequent disability or inability to institute a
Time [Section suit or make an application can stop it.
9]  The section embodies the principle that once the time for filing suit or
an application starts running, it will continue to run till it has exhausted
the full prescribed period. The running process can only be stopped or
suspended by express statutory exceptions.
 „Disability‟ connotes legal disability. It is want of legal qualification to
act i.e., want of capacity to act. It is the state of being minor, insane
and idiot. „Inability‟, on the other hand, connotes want of physical
power to act. Illness, poverty, ignorance, etc. are some of the
instances of inability.
 It may be noted that section 9 is applicable only to suit and
application. It does not apply to appeals.
Exclusion of Following period shall be excluded in computing the period of limitation for
Time in Legal various proceedings mentioned:
Proceedings  In computing the period of limitation prescribed for a suit, the day on
which the time begins to run shall be excluded.
 In computing the period of limitation prescribed for an appeal the

following periods shall be excluded:
 the day on which the period begins to run;

 the day on which the judgment was pronounced;
 the time required for obtaining the copy of decree, sentence,

order; and
 the time required for obtaining he copy of judgment.
 In computing the period of limitation prescribed for an application for

revision or review or leave to appeal, the following shall be excluded:
 the day on which the period begins to run;

 The day on which the judgment was pronounced;
 the time required for obtaining the copy of decree; and
 the time required for obtaining he copy of judgment.
 In computing the period of limitation prescribed for an application to

set aside an award, the following period shall be excluded:
 the day on which the period begins to run; and

 the time required for obtaining a copy of the award.
In computing the period prescribed for any other application, only the day on
which the time begins to run shall be excluded.
Effects of  Sometimes a liability may be acknowledged by the party against
announcement whom the liability is alleged within the period of limitation. If this
of a Liability acknowledgement is made in writing, it would give rise to a fresh
on period of period of limitation and it would run from the date of
Limitation acknowledgement.
[Section 18]  It may be noted that it is not necessary that an acknowledgement
must contain an express or implied promise to pay. What is necessary
is that these should be admission of the subsisting liability. The
essential requisites of a valid acknowledgement are as follows:
 The acknowledgement must have been made before the expiration of
the prescribed period of limitation;
 The acknowledgement must have been made by the party against
whom the right is claimed;
 The acknowledgement must be in writing;
 The acknowledgement must be in respect of some liability or a
particular property or right claimed in the suit or application; and
 The acknowledgement is not required to be made to the creditors or
the person entitled to the property i.e. it may be made to any person,
even to a stranger.
Effect of Part  Section 19 of the Limitation Act stipulates the law for the extension of
Payment of the period of limitation when part payment of the principal amount or
Principal payment of interest is made.
Amount or  As per this section, where payment on account of the debt or of
Payment of interest on a legacy is made before the expiration of the prescribed
Interest on period, by the person liable to pay the debt or legacy or by his agent
period of duly authorized in his behalf.
Limitation  A fresh period of limitation shall be computed from the time when the
[Section 19] payment was made. Further part payment of the principal amount or
payment of interest money is also required to be acknowledged and
such acknowledgement must appear either in the hands writing of the
person making the payment or must appear in a writing signed by the

person making the payment.
 It may be noted that where mortgaged land is in the possession of the
mortgagee, the receipt of the rent or produce of such land shall be
deemed to be a payment.
 Thus according to this section, a fresh period of limitation become
available to the creditor when part payment of debt or payment of
interest is made by the debtor before the expiration of the period of
limitation.
Important  Suit for money payable or money lent – 3 years from the time when
Limitation the loan is made.
Periods
 Suit for specific performance of contract – 3 years from the date fixed
for performance. In case where no such date is fixed, 3 years shall be
calculated from the date when the plaintiff has notice that the
performance is refused.
 Appeal against the sentence of death passed by the Session Court or
by the High court in exercise or its original jurisdiction – 3- days.
 Suits relating to Contract – 3 years.
 Suit relating to movable property – 3 years.
 Suit relating to possession of immovable property mortgaged – 12
years.
 Suit for arrears of rent – 3 years.
 Suits for an account and a share out of profits of a partnership firm – 3
years.
 Suit in respect of wages due to seamen – 3 years.
 Suit in respect of wages due to other employees – 3 years.
 Suit in respect of price of food or drink sold by a hotel, restaurant,
lodging house etc. – 3 years.
 Suit in respect of compensation for false imprisonment – 1 year.
 Suit in respect of compensation for malicious prosecution – 1 year.
 Suit to enforce payment of money secured by a mortgage – 12 years.
 Suit for possession of immovable property – 30 years.
Suit for leave/ permission to appear and defend a suit under summary
procedure – 10 days.
Lesson 22
Section IV
Indian Evidence Act, 1892
Introduction Indian Evidence Act, 1872 contains the general rules of evidence, which
are applicable both in civil as well as in criminal mattes.
Section 3 of the Act recognizes the two categories of evidence i.e., oral
evidence and documentary evidence. Oral evidence means and includes
all statements which the Court permits or required to be made before it by
witnesses, in relation to matters of fact under enquiry. Documentary
evidence means and includes all documents, produced for the inspection of
the Court.
For the purpose of evidence, facts are divided into the following two
categories:
Fact of Issue: The facts which are constituent of a litigated right, liability, or
disability are called facts in issue.
Relevant Fact: In order to prove the existence or non-existence of facts in
issue, certain other inter-connected fact may be given in evidence. They
are called relevant facts.
Meaning of Res The term Res Gestae means surrounding or accompanying circumstances
Gestae which are inseparable from the fact in issue and are necessary to explain
the nature of the main act.
They includes acts or declaration accompanying or explaining the
transaction or fact in issue.
The area of events covered by Res Gestae depends upon circumstances
of each case.
Relevancy of Section 6 lays down the requirement that the inter-connation between facts
Facts Forming in issue and other connected facts must be such that they form part of the
Part of the same same transaction. A transaction may be defined as a group of facts so
transaction connected together so as to referred to by a single legal name as a crime
[Section 6] or a contract or a wrong or any other subject of enquiry which may be in
issue.
In Rattan v. Queen, a man was prosecuted for murder of his wife. His
defence was that the bullet went off accidentally. There was evidence to
the extent that he deceased, before her death, telephoned to telephone
operator and said “Get the police please”. Before the operator could have
connected the call to the police, the lady had given the address and the call
suddenly ended. Thereafter the police, the lady had given the address and
the call suddenly ended. Thereafter the police came to the house and
found the dead body of the lady. Her call and the words she had spoken to
the telephone operator were held to be relevant as the part of the same
transaction.
Motive Every crime can be divided into the following three stages i.e., Motive,
Preparation and Preparation and Conduct. Motive: Motive is that part which induces or
conduct moves a Peron to act in a certain way. It is the emotion supposed to have
[Section 8] led to the act. There can be no action without a motive, which must exist for
every voluntary act.
The mere existence of the motive is by itself not an incriminating
circumstance. In Tara Devi v. State of U.P., it was held that motive of a

woman to get rid of her husband was not enough to convict particularly
when her paramour was acquitted.
Preparation: Preparation means the means and measures necessary for
the commission of any offence.
Conduct: Conduct means attempt to commit the crime and actual
commission of the
Inconsistent Section 11 provides that the fact which ordinarily have nothing to do with
Fact [Section 11] the fact of the case, become relevant because of the reasons that they are
consistent with the fact in issue.
Meaning of Admission is a statement given by a person admitting a fact which
admission suggests as to the existence of his liability. For the applicability of this
[Section 17] provision, admission must be against the interest of the maker.
Meaning of The word „Confession‟ is not defined in Indian Evidence Act, 1872. Hence
Confession the definition of admission given in Sec. 17 is also applicable to confession.
Thus, confession is a statement given by an accused admitting his guilt.
If a confession is made to the Court, it is called the judicial confession,
whereas where the confession is made to any person outside the court, it is
called extra judicial confession.
Important Confession must be free and on voluntarily basis [Sec.24]: Sec.24
Provisions provides that confession should free and on a voluntary basis. It must not
pertaining to be caused by any inducement, threat or promise. Confession made to
confession police officer will be irrelevant and inadmissible [Sec. 25] Sec. 25
provides that confession made to a police officer will be irrelevant and
inadmissible.
Section 26: Sec. 26 provides that a confession made to police officer in the
immediate presence of a Magistrate will be admissible.
It may be noted that a Civil Judge is not a Magistrate. A Civil judge has a
power under CPC where a Magistrate exercise poser under CrPC. Thus
Sec 26 is applicable only when the confession is made in a presence of
Magistrate. It may further be noted that Sec. 26 is an exception to Sec. 25.
Section 27: Sec. 27 provides that a statement in the form of confession to
a police officer will be admissible provided that the statement leads to the
discovery of a fact connected with a crime. For example, A confesses to
Police that he has murdered B with a revolver and that the revolver is with
C. The police recovered the revolver from C. Thus, in such a case Section
27 will be applicable.
Section 30: Sec. 30 provides that when a statement in the form of a
confession is given by co-accused, then such statement may be used
against another co-accused.
For example, A and B together murder C. There is allegation on them and
B confesses before a Judge that he has murdered C along with A. This is a
statement of co-accused and thus can be used against another co-accused
i.e., A
Conclusion: Section 24 to 30 provides that the court may accept the
confession in toto and reject in toto. The court can‟t accept only the in-
culpantory part while rejecting the ex-culpatory part. For example, A wife is
supposed to murder her husband; she said that she wrongly administered
the poison in place of the medicine to be given to her husband. In addition,
she said that she murdered her husband with the help of some other
person and drowns the dead body in the well. There are two part of this
statement i.e., one is in-culpatory and another is ex-culpatory.

Difference In class.
between
admission and
confession
Hearsay Section 59 of Indian Evidence Act provides that except content of
Evidence documents, all other facts may be proved by oral evidence.
Section 60 further provides that the oral evidence must be direct and it
should not be indirect or hearsay. Thus it can be sated that in all cases the
evidence has to be that of a person who himself witnessed the happening
of a fact. Such a witness is called eye witness. Therefore, it is normally said
„hearsay evidence is no evidence‟
However, there are certain exceptions to the aforesaid rule that hearsay
evidence is no evidence.
They are as under:
1. Res Gestae: As per this provision, statement of person may be
proved through another person who appears as a witness, if the
statement is a part of transaction issue.
2. Admission and Confession: An admission of liability or confession

of guilt is proved through the testimony of the witness to whom such
admission and confession was made.
3. Dying Declaration: As per Section 32, statements are proved

through testimony of the witness to whom such statement has been
made. This provision covers the testimony related to dying
declaration as well as the statements relating to a person under
disability. It may be noted that where a person making a declaration
survives then the statement made by him can‟t used as dying
declaration.
The evidence given by witness in a judicial proceeding can be used as

evidence in subsequent proceedings.
Estoppels Estoppels are a proposition of law by which a person is held by the
representation made by him or arising out of his conduct. The facts
constituting the estoppel will be relevant and admissible.
Privilege There are certain mattes which a witness can‟t be compelled to disclose or
Communications even if the witness is willing to disclose, he will not be permitted to do so.
Such mattes are known as privileged communication.
Communication Following are the fact of which evidence can‟t be given:
during marriage Section 122 prevents communication between husband and his wife from
[Section 122] being disclosed. Thus a wife or husband can‟t be permitted to disclose
what her husband or his wife respectively has stated with regards to the
matters in issue. Such communication remains protected even after the
divorce. However communications made before the marriage or after the
divorce are not protected.
Professional Communication made by a client to his advocate for the purpose of his
Communication professional work is not permitted to be disclosed.
[Section 126]
Witness [Section Every person is a competent witness provided such person understands
118] the questions posed to him and can give logical and rational answer to
those questions.
A child can also be a competent witness provided such a child is intelligent
enough to understand the questions and answer them in a logical and
rational manner.
A Judge or a Magistrate can also be a competent witness provided such
judge or Magistrate is personally aware of the facts of the case.
Evidence in Section 93 provides that where the language of document is apparently
respect of defective on the fact of it, oral evidence can‟t be entertained to cure that
certain defect.
documents Section 97 provided that where the language of a document applies partly
to one set of facts or partly to another set of facts, but doesn‟t apply
accurately to either set of fact, then evidence can be given to show to
which fact the document intended to apply.
Lesson23
Civil Procedure Code, 1908
Introduction Civil Procedure Code is the general law relating to civil suits.
The Code consists of two divisions. The first division, containing 158 Section, is
the substantive law i.e., the law which determines the rights and obligation of the
parties to a dispute. The second division, containing 51 Orders, each of which
contains several Rules, is the procedural law i.e., the law which prescribes the
procedure for the enforcement of rights and obligation of the parties to the
disputes.
The first division, containing substantive law, can be amended only be the
Parliament whereas the second division, containing procedural law, can be
amended only by the High Courts.
Concept of The term „decree‟ has been defined u/s 2(2) of Civil Procedure Code, 1908. It
Decree means the formal expression of an adjudication which conclusively determines
the rights of the parties with regard to all or any of the matter in controversy in
the suit.
A decree may be either preliminary or final. A decree is preliminary when a
further procedure has to be taken before the suit can be completely disposed off.
It is final when such adjudication completely disposes of the suit.
It may be noted that the term „decree‟ doesn‟t include the following:
 Any adjudication from which an appeal lies as an appeal from an order.
Any order or decision of the dismissal of the suit for default.
Concept of The term „Order‟ has been defined u/s 2 (14) of the Civil Procedure Code. It
Order means the formal expression of any decision of the Civil Court which is not a
decree.
Concept of The term judgment has bee defined u/s 2 (9) of the Civil Procedure Code. It
Judgement means the statement given by the Judge on the grounds of a Decree or Order.
Thus a judgment sets out the ground and the reason for the Judge to have
arrived at the decision.
Difference  A Decree adjudicates and conclusively determines the rights of the
between parties, whereas an Order doesn‟t do so.
Decree and  A Decree is always appealable unless prohibited by the law, whereas an
Order Order is not appealable unless permitted by the law.
 Law may provide even for second appeal in case of Decree, whereas
second appeal is not possible in the case of an Order.
A Decree may be final or preliminary whereas an Order can‟t be preliminary and
it is always final.
Appearance When a suit is filed by the plaintiff, a summon is issued to the defendant to
of Parties appear on a particular date fixed by the court. The defendant is further directed
[Order 9] through the summon to file the written statement (reply) to the suit filed by a
plaintiff.
On the date of hearing by the court, both the plaintiffs as well as the defendant
are required to present themselves before the court. If the plaintiff doesn‟t
appear on the date of the hearing, then the court may either dismiss the suit for
default o decide it ex – parte on the merit of the case. If the defendant doesn‟t
appear on the date of hearing, the court may either adjourn the hearing or
decide it ex – parte on the merits of the case.
The ex – parte order or the order relating to the dismissal of the suit can be set
aside provided the plaintiff or the defendant, as the case may be, gives a
sufficient reason for his non-appearance on the date of hearing.
Place of Every suit shall be instituted in the court of lowest grade.
Filing of
Suit
[Section 15]
[Section 16] Suits regarding immovable property are instituted in the court within whose
jurisdiction, the Immovable property is situated.
[Section 17] Where immovable property is situated in the jurisdiction of different courts, the
suit may be filed in any of such courts.
[Section 18] Where there is apparent uncertainty regarding the jurisdiction of the court, the
suit may be filed in any of such courts.
[Section 19] Suit with regards to the compensation for wrongs done to the persons or suit
pertaining to movable property can be filed in the court having the jurisdiction
over the place where the wrong was committed or where the defendant resides.
[Section 20]  Where above section i.e., Section 16, 17, 18 and 19 are not applicable,
such suits may be filed in the court having jurisdiction over the place
where the defendant resides or where the cause of action has arisen.
 For instance, A resides at Shimla, B at Calcutta and C at Delhi. A, B and
C being together at Varanasi; B and C make a joint promissory note
payable on demand , and deliver it to A. A may sue B and C at Varanasi,
where cause of action arose. He may also sue them at Calcutta where B
resides or at Delhi where C resides, but in each cases, if the non-
resident defendant objects, the suit can‟t be proceeded without the leave
of the Court.
 Section 20 further provides that in the case of a Company, the suit may
be filed at any of the following places:
 Place where the Principal office or the Head office of the Company is
situated.
 Place where the cause of action has arisen, subject to the condition that
the company has a Branch office at such place.
Important In the leading case of Hakam Singh v. Gammon (India) Limited, the Supreme
Point Court held that the parties, by an agreement, can not confer jurisdiction on a
Court which it doesn‟t possess under the law. However, the parties can agree
that only a particular Court will try a suit, where the two courts have jurisdiction
to try a suit.
Doctrine of Section 10 of the Civil Procedure Code provides the doctrine of res sub-judice or
Res Sub- the rule with regard to stay of suit where things are under consideration by court.
Judice It provides that no court shall proceed with the trial of any suit in which the mater
[Section 10] in issue is also directly and substantially in issue in a previously instituting suit
between the same parties where such suit is pending in the same or any other
court in India. However, the pendency of a Suit in Foreign Court doesn‟t bat the
courts in India from trying a suit founded on the same cause of action.
For the application of the doctrine of res sub-judice, the following conditions
must be satisfied:
 A previously instituted suit is pending in a Court;
 The matter in issue in second suit is also directly and substantially the
same as in the previous suit;
 The previously instituted suit is still pending in same court or any other
court in India;
 The parties in two suits are same; and
 The court in which previous suit is pending has the jurisdiction to try such
suit.
 Section 10 is enacted to prevent courts of concurrent jurisdiction from

simultaneously trying two parallel suits in respect of same matter in
issue.
 A suit was instituted by the plaintiff company alleging infringement by the
defendant company by using trade name o medicine and selling the
same in wrapper and carton of identical design with same color
combination etc. as that of plaintiff company.
 A subsequent suit was instituted in different court by the defendant
company against the plaintiff company with the same allegation. The
Court held that subsequent suit should be stayed as simultaneous trial of
the suits in different courts might result in conflicting decisions as issue
involved in two suits was totally identical.
[Wings Pharmaceuticals v. Swan Pharmaceuticals]
Doctrine of  The doctrine of res-judicata or the Rule of conclusiveness of judgments
Res- is explained in Section 11 of the Civil Procedure Code. It provides that
Judicata once the matter is finally decided by a competent court, no party can be
[Section 11] permitted to re-open it in subsequent litigation. The principle underlines
that no one shall be vexed twice for the same cause. It prevents two
different decrees on he same subject.
To apply this doctrine, the following condition must be fulfilled:
 The matters in both the former and the latter suits should be directly and
substantially the same.
 The former suit should have been decided;
 parties in two suit are same; and
 The court which determines the earlier suit must be competent to decide
it.
 The application of this doctrine is based on the public policy so that the
patties would not be harassed again and again on the same issue
already decided. The court‟s time will also not get vested on matter
already decided.
 It may be noted the Sect. 11 will not be applicable in those
circumstances where the first suit have been dismissed on technical
ground and has not been decided on merit of the case.
Concept of  Order 8, Rule 6 deals with set off which is a reciprocal acquittal of debts
Set off between the plaintiff and he defendant. It has the effect of extinguishing
the plaintiff‟s climbs to the extent of the amount claimed by the
defendant.
Where in a suit for the recovery of money, the defendant‟s claims to set off
against the plaintiff‟s demand, any ascertained sum of money legally
recoverable by him from the plaintiff, the defendant may present a written
statement containing the particulars of the debt sought to be set off.
Concept of This is not a concept of CPC deals with the concept of equitable set off. Where
Equitable the defendant claims set off in respect of an unascertained sum of money,
Set off where the claim arises of the same transaction, and then such set off is known
as equitable set off. Generally, the suits emerge from cross demands in the
same transaction and this doctrine is intended to save the defendant from
having to take recourse to a separate cross suit.
Concept of Order 8, Rule 6A of Civil Procedure Code deals with the Rule of Counter claim.
counter This Rule permits the defendant to set up the claim as a counter to the claim of
claim the plaintiff, which arose between the parties. This rule is applicable in the
interest of public policy so as to minimize litigation between the parties which
could have been filed by the defendant separately.
Reference A reference can be made by a lower court to the higher court where the question
[Section of law is involved in the suit and the lower court has a reasonable doubt about
113] such question of law. The application for reference can be made by any of the
parties to the suit. Further the lower court may also, on its own, refer the mater
to the higher court.
The purpose of Sec. 113 is to enable the sub-ordinate courts to obtain, in non-
appealable cases, the opinion of High Court on questions of law for doing justice
to the parties.
Review Section 114 of the Civil Procedure Code provides for the review of the case i.e.,
[Section the reconsideration of the decision given by a court.
114] The application for review can be filed where no appeal could be preferred
against the order of the court and also in those cases where the person
concerned doesn‟t want o prefer such an appeal, though such an appeal is
maintainable.
It may be noted that application to review has to be filled before the same court
which has given the decision. It may further be noted that a court can exercise
the power of review only if it is specifically authorized to exercise such power
under some law.
Revision A petition of revision can be made before the High Court when the subordinate
[Section Court:
115]  Exercises a jurisdiction not vested in it by law;
 Fails to exercise jurisdiction vested in it by law or
Acted in the exercise of jurisdiction with material irregularity
Appeals Appeal is an application by which a party requests an appellate court to set
aside or modify the decision of the subordinate court.
The Civil Procedure Code provides for following four kinds of appeals:
Appeals Appeals from original decrees may be preferred from any decree, passed by any
from court exercising original jurisdiction, to the court authorized the hear appeals
original from the decision of such courts on point of law as well as on points of facts. In
decrees this case, there is always a right to appeal, until unless there is a specific
prohibition to such a right.
Second Second appeals lies to the High Court from any decree passed in appeal by any
appeals court subordinate to the High Court, if the High Court is satisfied that the case
involves a substantial question of law.
Appeals In general, appeals against the order are not allowed. However, if it is
against the specifically permitted under the provisions of law, appeal can be filed against the
orders order on ground of defects or irregularity of law.
Appeal to An Appeal can be filed to the Supreme Court in respect of those decrees which
Supreme have been passed by High Court in their original jurisdiction.
Courts
Injunction An injunction is a judicial process by which one, that has invaded or threatened
to invade the rights of another, is restrained form continuing or commencing
such wrongful acts. This is a preventive relief granted as discretion of court.
An Injunction may be a temporary or a perpetual Injunction. Temporary
Injunction is regulated by Order 39 of Civil Procedure Code whereas Perpetual

Injunction is regulated by Section 38 of Specific Relief Act, 1963.
A temporary injunction is such as is to continue until a specified time or until the
further orders of the court. It may be granted at any stage of the suit.
A perpetual injunction can only be granted by a decree made under hearing and
upon the merits of the case. In case of a perpetual injunction the defendant is
permanently restrained from doing any act which is against the right of the
plaintiff.
Summary Order 37 of Civil Procedure Code provides for a summary procedure in respect
Procedure of certain suits.
The essence of the summary suit is that the defendant is not, as in an ordinary
suit entitled to
defend the suit. The object underlying the summary procedure is to
prevent unreasonable
obstructions by defendant who has no defence.
Summary suit can be filed in the following cases:
 Suits relating to Promissory Notes, Bill of Exchange Cheques,
Hundis.
 Suit in which the plaintiff seeks only to recover a debt.
In summary suit, the defendant is not entitled to defend the suit until he enters
appearance and makes an application for leave to defend the suit, within 10
days from the date of summons leave to defend may be granted to him
unconditionally or upon such terms and conditions as the courts thinks fit.
However, leave to defend the suit shall not b granted in the following cases:
 Where the defence of the defendant is frivolous or vexations.
 Where part of the amount claimed by the plaintiff and accepted by the
defendant has not been deposited by the defendant in the court.
Suits by or Order 32 of Civil Procedure Code deals with the provision relating to suits by or
against against minor. The basic rule as regard suits by or against minor is that the law
minor protects minors against their immaturity and inexperience and also against the
matured and experienced person. Every suit by a minor shall be instituted in his
name by a person who in such suit shall be
Called the next friend of the minor. Where a suit is instituted by minor without the
next friend, then the defendant may apply for dismissal of the suit. Where the
defendant is a minor, the court shall appoint a proper person to be a guardian for
the suit of such minor.
A minor plaintiff, on attaining majority, shall elect whether he will or will not
proceed with the suit. Where he elects to proceed with the suit, he shall apply for
an order discharging the next friend and for leave to proceed in his own name.
Where he elects to abundant the suit, he shall apply for an order to dismiss the
suit, on repayment of the costs incurred by the defendant.
Section 12 Section 12 of Civil Procedure Code provides that abatement of suit or its
dismissal, for not bringing the legal representative on record, bars further suit.
Lesson 24
Criminal Procedure Code, 1973
Introduction The Criminal Procedure Code, 1973 is the general law relating to criminal
procedures. The Code prescribes the procedure for the trial of offences
specified in the Indian Panel Code, 1860. Thus, the main object of Criminal
Procedure Code is to supplement the substantive law contained in Indian
Penal Code, by prescribing the suitable procedure.
Offence Offences mean any act or omission made punishable by any law for the time
[Section 2(n)] being in force.
In simple terms, and offence is a wrong committed by any individual in a
society. Following are the four elements which constitute the offence:
A human being;
 Mens Rea (guilty mind or intention);
 Illegal act i.e.; Actus Reas; and
 Injury to another person
Bailable and Bailable offence means an offence which is shown as bailable in the first
Non Bailable schedule of the Criminal Procedure Code or which is bailable by any other law
Offence for the time being in force. Non-bailable offence means any other offence.
[Section 2(a)] Bailable offences are less serious than non-bailable offences. A Bail, in the
case of bailable offence, is a matter of right whereas a Bail, in case of non-
bailable offence, depends upon the discretion of the court.
Bail means the release of an accused from the custody of the officer of law
and entrusting him to the private custody of person who become bound as
surety to produce the accused to answer the charge at the stipulated time and
date.
Anticipatory Anticipatory bail is a bail which is granted to a person who apprehends arrest
Bail [Section but has not yet been arrested. Where any person has reason to believe that
438] he may be arrested on an accusation of having committed a non-bailable
offence he may apply to the High Court or the Court of Sessions for a
direction u/s 438. On such application, the Court may, if it thinks fit, direct that
in the event of such arrest, he shall be released on bail.
The Court grants the anticipatory bail subject to the following conditions:
 That the accused shall make himself available for interrogation by a
police officer as and when required;
 He shall not threaten the witness so as to make them hostile; and
 He shall not leave India without the prior permission of court.
Cognizable or Cognizable offence means an offence in which a person can be arrested by a
Non police officer without warrant. Cognizable offences are generally more serious
Cognizable in nature and heavily punishable. In such cases, the police have hardly any
and Non- time to obtain a warrant of arrest from a court, as the offender may escape by
Cognizable the time of warrant is obtained or he may tamper with the material evidence.
Offence/Cases Examples of cognizable offences are Murder, Dacoity, etc.
[Section 2( c ) Non-Cognizable offence means an offence in which the police can‟t arrest a
and 2(l)] person without warrant. Non-Cognizable offences are less serious in nature
as compared to cognizable offence. In cause of these offences injury cause to
the society is comparatively small. Examples of non-cognizable offences are
simple hurt, undue influence at an election, etc.

Complaint Complaint means any allegation made orally or in writing to a Magistrate with
[Section 2(d)] the view to his taking action under Criminal Procedure Code, that some
person, whether known or unknown, has committed an offence.
It may be noted that the term complaint doesn‟t include a police report. Police
report means a report forwarded by a police officer to a Magistrate.
Investigation Investigation [Sec. 2 (h)] : As per Criminal Procedure Code, investigation is
Inquiry and to be conducted always by a police officer or by any other authorized person.
Trial Investigation process consists of the following steps:
 Proceeding to the spot;
 Ascertainment of facts and circumstances;
 Discovery and arrest of the suspected person; and
 Collection evidence.
Inquiry [Sec. 2(g)] : According to Criminal Procedure Code, inquiry is always

conducted by the Magistrate or by the court. An inquiry before trial to
ascertain whether any offence has been committed and whether he should be
put upon the trial.
Trial: The word „trial‟ has not been defined under Criminal Procedure Code. It
means the judicial process in accordance with law, whereby the question of
guilt or innocence of the person accused of an offence is determined. Thus a
trial ends either in conviction or acquittal.
Mens Rea Mens Rea is one of the principles o criminal law that a crime is not committed
if the mind of the person doing the act in question is innocent. It is said that
“ACTUS NON FACIT TEAM HISI MENS SIT REA‟ i.e., the intention and act
must both concur to constitute the crime and that is why it is said that guilty
mind is necessary for liability in Criminal law. The general rule to be stated is
“there must be a mind at fault before there can be a crime”
Summons Warrant case means a case relating to an offence punishable with death,
Cases imprisonment for life or imprisonment for a term exceeding 2 years. Summons
Warrant case means a case relating to an offence and not being a warrant case.
Cases Thus, it can be seen that the distinction between two terms is based on the
[Section 2(w) quantum of the Punishment that can be awarded. In other words, cases which
and 2(x) are punishable with imprisonment up to 2 years are summons cases and the
rest are all warrant cases.
Further in a summons case, the court order is directly issued to a person to
produce himself before the court, whereas in a warrant case, the court order
is issued to the police to produce the person concerned before the court.
Summary Trial Summary trial means speedy disposal of cases.
[Section 260] Sec.260 provides that summary trial can be conducted in respect of those
offences which are not punishable with death or imprisonment for life or
imprisonment exceeding 2 years. In simple words, we can say summary trial
can be conducted only in respect of those offences which are punishable with
imprisonment for a term not exceeding two years.
Further, summary trials can be conducted only in respect of those offences in
which the value of property does not exceed Rs.200/-.
It may be noted that Summary Trial can be conducted only by a Chief Judicial
Magistrate. Section 262 provides that if in a summary trial the accused is
found to be guilty, he shall not be sentenced to imprisonment for a period
exceeding 3 months.
Information to Any person aware of any cognizable offence may give information to the
the Police police. The information so received shall be recorded in the manner
[Section 154] prescribed under CrPC. The information so recorded u/s 154 is known as First
Information Report (FIR).
Where the concerned Police Officer doesn‟t record the aforesaid information,
then the person giving the information can do the following:

Inform the Superintendent of Police regarding the refusal of the
concerned police officer. In such a case, the Superintendent of Police

himself shall record the information and investigate the mater.
Inform the concerned Magistrate which, in turn, will take the action
against the concerned Police officer.
[Section 155] If any person gives information to an Officer-in-Charge of the concerned

police station of the commission of a non-cognizable offence, the Officer
shall enter the substance of such information in a particular book prescribed
by the State Government. The Officer, thereafter, shall refer the information to
the Magistrate for appropriate direction.
Sec. 155 (2) Provides that no Police Officer shall investigate a non-cognizable
case without the order of Magistrate having the power to try such offence.
Sec. 155 (4) Provides that where a case relates to two or more offences and
one of them is cognizable, the case shall be deemed to be a cognizable
offence irrespective of the fact that other offences are non-cognizable.
Arrest of a Section 41 of the Criminal Procedure Code lays down the circumstances in
person which police officer may arrest a person without warrant. As per this, following
without persons can be arrested by a Police Officer without warrant:
Warrant  Who has been concerned in any cognizable offence; or
[Section 41]  Who has in his possession without lawful excuse, the burden of
proving which excuse shall lie on such person, any implement of
housebreaking ; or
 Who has been proclaimed as an offender either under this code or by
order of the State Government; or
 In whose possession anything is found which may reasonably or
suspected to be stolen property; or
 Who obstructs a police officer while in the execution of his duty, or
who has escaped, or attempts to escape, from lawful custody; or
 Who is reasonably suspected of being a deserter from any of the
Armed Forces of the Union; or
 Who has committed any act at any place out of India which, of
committed in India, would have been punishable as an offence, and for
which he is liable to be apprehended or detained in custody in India: or
Who being a released convict, commits any breach of any rule, relating to
notification of residence or change of or absence from residence; or
For whose arrest any requisition, whether written or oral, has been received
from another Police officer, provided that the requisition specifies the person
to be arrested and the offence or other causes for which the arrest is to be
made it appears there from that the person might lawfully be arrested without
a warrant by the officer who issues the requisition.
Arrest on If any person who is accused of committing a non-cognizable offence doesn‟t
Refusal to give his name, residence or gives a name and residence which the police
give name officer feels to be false, he may be taken into custody. However, such person
and residence can‟t be detained beyond 24 hours if his true name and address cannot be
[Section 42] ascertained or fails to execute a bond or furnish sufficient sureties. In that
event he shall be forwarded to the nearest Magistrate having Jurisdiction.
Arrest by a A private person may arrest or cause to be arrested any person who is his
Private presence commits a non-bailable or cognizable offence or who is a
Person proclaimed offender.
[Section 43]
Sentence of Where a fine has been imposed on an accused but the same has not been
Imprisonment paid, them he can be imprisoned in lieu of fine. However, this imprisonment
in Default of shall not exceed 1/4th of the period of imprisonment, which the Magistrate cab
Fine [Section award as maximum imprisonment.
330]
Limitation In calculating

the limitation period, the following period shall be excluded:
Period The period during which the offender has been absent from India.

[Section 470] The period during which the offender has avoided arrest by
absconding.
Wages Section Wages means all remuneration capable of being expressed in terms of
2 (rr) money, which would, if the terms of employment, expressed or implied, were
fulfilled, be payable to a workman in respect of his employment or of work
done in such employment.
Wages includes the following :
 Allowances (including dearness allowance) as the workman is for the

time being entitled to.
 The value of any house accommodation or of supply of light, water,
medical attendance or other amenity or of any service or of any
concessional supply of food-grains or other articles.
 Any travelling concession.
 Any commission payable on the promotion of sales or business or
both.
Industry Industry means any business, trade, undertaking, manufacture or calling of

[Section 2(i)] employers and includes any calling, service, employment, handicraft, or
industrial occupation or evocation of workmen.
Case Laws; Bangalore Water Supply v. A Rajappa (1978) 2 SCC 213

[Triple Test]
A bench of the Supreme Court consisting of seven judges exclusively

considered the scope of industry and laid down that "Where there is
 systematic activity,
 organised by co-operation between employer and employee,
 for the production and/or distribution of goods and services calculated
to satisfy human wants and wishes,
prima facie, there is an "industry" in that enterprise." This is known as the
„Triple Test‟ for defining an enterprise as industry.
Industrial Industrial dispute means any dispute or difference between

Dispute  employers and employers or
[Section 2(k)]  employers and workmen, or
 workmen and workmen,
which is connected with the employment or non-employment or the terms of

employment or with the conditions of labour of any person.
The two crucial limitations are

 the dispute must be a real dispute between the parties capable of
settlement or adjudication and
 the person against whom the dispute is raised must be one in whose
employment, non-employment, terms of employment, or conditions of
labour, the parties to the dispute have a direct or substantial interest.
Individual
Dispute or An industrial dispute may be individual dispute or collective dispute. Any
Collective dispute between an individual worker and the management is an individual
Dispute dispute.
Where any dispute relates to the overall workers like dispute relating to hours
of work, leave, wages, retrenchment, closure etc., these are collective
disputes.
Case Laws : Workmen v. Cotton Greaves Co. Ltd. (1971) An industrial

dispute can be raised for non-workmen.
Industrial Where any employer discharges, dismisses, retrenches, or otherwise

Dispute by terminates the services of an individual Workman, the dispute or difference
individual between that workman and his employer shall be deemed to be an industrial
(Section 2A) dispute even when no other workman nor any union of workmen is a party to
the dispute.
Works  In case of any industrial establishment in which 100 or more workmen

Committee are employed or have been employee; on any day in the preceding 12
[Section 3] months, the appropriate Government may order the employer to
constitute a Works Committee.
 The Committee shall consist of representatives of the employer and
workmen engaged in the establishment.
Duties of  To promote measures for securing and preserving amity and good
Works relations between the employer anq workmen.
Committee  To comment upon matters of their common interest.
 To endeavour to compose any material difference of opinion in respect

of any matters.
Conciliation  Appropriate government to appoint conciliation officers.

Officer  The conciliation officers shall be charged with the duty of mediating
[Section 4] and promoting the settlement of industrial disputes.
 A conciliation officer may be appointed for a specified area or for
specified industries in a specified area or for one or more specified
industries either permanently or for a limited period.
Powers of  The conciliation officer may enter the premises of any establishment to
Conciliation which the dispute relates after giving reasonable notice for holding
Officer conciliation proceeding.
 The conciliation officer may enforce the attendance of any person for
the purpose of examination of such person
 The conciliation officer may call for and inspect any documents which
are relevant to the industrial dispute or for verifying the implementation
of any award or carrying out any other duty.
Duties of  Where any industrial dispute exists or is apprehended, the conciliation

Conciliation officer may hold conciliation proceedings to settle the dispute.
Officers  Where the dispute relates to a public utility service and a notice has
been given, the conciliation officer shall hold conciliation proceedings
to settle the dispute.
 The conciliation officer shall investigate the dispute and may do all
such things as he thinks ht for the purpose of inducing the parties to
come to a fair and amicable settlement.
 A report shall be submitted within 14 days of the commencement of the

conciliation proceedings or within such shorter period as may be fixed
by the appropriate Government. The time may be extended by such
period as may be agreed upon in writing by all the parties to the
dispute.
Duties of  A Court shall inquire into the matters referred to it and report thereon to
Court the appropriate government ordinarily within a period of six months
from the commencement of its inquiry.
 Every report of a Court together with any minute of dissent shall, within
a period of 30 days from the date of its receipt by the appropriate
government, be published in such manner as the appropriate
government thinks tit.
The award so published shall be final and shall not be called in
question by any Court.
Power of  A member of a Labour Court may, after giving reasonable notice, enter
Labour the premises occupied by any establishment to which the dispute
Courts relates for the purpose of inquiry.
 The Court shall have the same powers as are vested in a Civil Court,.
 A Labour Court may appoint one or more persons having special
knowledge of the matter under consideration as assessor to advise it.
 The Labour Court shall have full power to determine by and to whom
and to what extent and subject to what conditions, if any, such costs
are to be paid.
 Where an industrial dispute relating to the discharge or dismissal of a
workman has been referred to a Labour Court, and if it is satisfied that
the order of discharge or dismissal was not justihed, it may set aside
the order of discharge or dismissal and direct reinstatement of the
workman on such terms and conditions as it thinks tit.
 The Labour Court shall rely only on the materials on record and shall
not take any fresh evidence in relation to the matter.
Reference of Where the appropriate government is of opinion that any industrial dispute
Disputes to exists or is apprehended, it may refer the dispute to different adjudication
the Board authorities as under for adjudication:
Court or
Tribunals  To Board of Conciliation - For settlement of any dispute.
[Section 10]  To a Court for inquiry - Any matter appearing to be connected with
the dispute. (c) To a Labour Court if the dispute relates to any matter
specified in the Second Schedule.
 To a Labour Court - Where the dispute relates to any matter specified
in the Third Schedule and is not likely to affect more than 100
workmen.
 To a Tribunal -The dispute or any matter appearing to be connected
with the dispute, whether it relates to any matter specified in the
Second Schedule or the Third Schedule.
 To National Tribunal -Where the Central Government is of opinion
that any industrial dispute involves any question of national importance
or is of such a nature that industrial establishments situated in more
than one State are likely to be affected, the Central Government may,
whether or not it is the appropriate Government in relation to that
dispute, at any time refer the dispute.
THE SECOND Matters within the Jurisdiction of Labour Courts

SCHEDULE
1. The propriety or legality of an order passed by an employer under the
standing orders;
2. The application and interpretation of standing orders;
3. Discharge or dismissal of workmen including reinstatement of, or grant of

relief to, workmen wrongfully dismissed;
4. Withdrawal of any customary concession or privilege;

5. illegality or otherwise of a strike or locklout; and
6All matters other than those specified in the Third Schedule.
THE THIRD Matters within the Jurisdiction of Industrial Tribunals

SCHEDULE
1. Wages, including the period and mode of payment;
2. Compensatory and other allowances;
3. Hours of„ work and rest intervals;
4. Leave With wages and holidays;
5. Bonus, profit sharing, provident fund and gratuity;

6. Shift working otherwise than in accordance with standing orders;
7. Classification by grades;
8. Rules of discipline;
9. Rationalisation;
10. Retrenchment of workmen and closure of establishment; and
11. Any other matter that may be prescribed.
Voluntarily  Where any industrial dispute exists or is apprehended and the

Reference of employer and the workmen agree to refer the dispute to arbitration,
Disputes to they may, at any time before the dispute has been referred to a Labour
Arbitration Court or Tribunal or National Tribunal, by a written agreement refer the
[Section 10A] dispute to arbitration.
 The reference shall be as per the arbitration agreement.
Award  As per Section 2(b), award means an interim or a final determination of

any industrial dispute or of any question relating thereto by any Labour
Court, industrial Tribunal or National Industrial Tribunal. It includes an
arbitration award. The report of a Board or Court shall be in writing and
shall be signed by all the members of the Board or Court
 The award of a Labour Court or Tribunal or National Tribunal shall be
in writing and shall be signed by its presiding officer. „
 Every report of a Board or Court together with any minute of dissent,
every arbitration award and every award of a Labour Court, Tribunal or
National Tribunal shall, within 30 days from the date of its receipt by
the appropriate Government, be published in such manner as the
appropriate Government thinks fit.
The award published shall be final and shall not be called in question
by any Court.
Settlement  Settlement means a settlement arrived at in the course of conciliation
[Section 2(p)] proceeding.
 It includes a written agreement between the employer and workmen
arrived at otherwise than in the course of conciliation proceeding.
 The agreement has to be signed by the parties.
 A Copy the agreement has to be sent to an officer authorised in this
behalf by the appropriate Government and to the conciliation officer.
Period of  Such settlement shall be binding for such period as is agreed upon by
operation of the parties.
Settlement
[Section 19]  If no such period is agreed upon, it shall be binding for a period of six
months from the date on which the memorandum of settlement is
signed by the parties to the dispute.
Change in No change without notice section 9A

Conditions of
Service  An employer, who proposes to effect any change in the conditions of
service in respect of any matter specified in the Fourth Schedule, shall
not effect such change without giving to the workmen a notice of the
nature of the change proposed.
 Such change shall not be effective within 21 days of giving such notice.
No notice shall be required under the following circumstances as
provided in section 9A
 Where the change is effected in pursuance of any settlement or award.

Where the workmen are persons to whom the Fundamental and
Supplementary Rules, Civil Services (Classification, Control and
Appeal) Rules, Civil Services (Temporary Service) Rules, Revised
Leave Rules. Civil Service Regulations, Civilians in Defence Services
(Classification, Control and Appeal) Rules or the Indian Railway
Establishment apply.
No action  No employer shall, during the pendency of any proceeding in respect
against of an industrial dispute, take any action against any protected workman
protected concerned in dispute by altering the service conditions applicable to
workmen him immediately before the commencement of such proceedings.
 No employer shall discharge or punish, whether by dismissal or

otherwise, such protected workman.
Unfair Labour  No employer or workman or a trade union shall commit any unfair
Pratice labour practice.
[Section 25T] Any person who commits any unfair labour practice shall be punishable
with imprisonment up to six months or with fine up to 1000 or with both.
Strikes Strike means cessation of work by a body of persons employed in any industry
[Section 2(q)] acting in combination, or a concerted refusal, or a refusal under a common
understanding of any number of persons who are so employed to continue to
work or to accept employment.
Prohibition of Strikes Section 23
No workman shall go on strike in breach of contract under the following

situations:
 During the pendency of conciliation proceedings before a Board and

within 7 days after the conclusion of such proceedings.
 During the pendency of proceedings before a Labour Court, Tribunal or
National Tribunal and two months after the conclusion of such
proceedings.
 During the pendency of arbitration proceedings before an arbitrator and
two months after the conclusion of such proceedings.
 During any period in which a settlement or award is in operation, in
respect of any of the matters covered by the settlement or award.
Illegal Strikes Section 24
 A strike is legal if it does not violate any provision of the statute.

 A strike shall be illegal if it is in contravention of section 22 or section
23.
 Strike is also illegal if it is continued in contravention of an order made
under section 10(3) or section 10A(4A).
 Where a strike is in existence at the time of reference of the dispute to

a Board, Arbitrator, Labour Court, Tribunal or National Tribunal, the
continuance of such strike shall not be deemed to be illegal if such
strike was not in contravention of the provisions of the Act or not
prohibited under section 10(3) or section 10A(4A) at commencement.
 A strike declared in consequence of an illegal lock-out shall not be
deemed to be illegal.
Dismissal of Workman for illegal Strike
 lf workers participate in illegal strike. the employer can dismiss them.

 Before, dismissal proper inquiry should be held and the worker be
given an opportunity to represent his case.
Wages for the Strike Period
 The workmen shall be entitled to wages for the period of strike, where
it is found that the strike is neither illegal nor unjustified.
 A strike is legal if it does not violate any provision of the law.
 And a strike cannot be said to be unjustified unless the reasons for it
are entirely perverse or unreasonable.
In this connection, it is pertinent to note that in the case of Bank of indie Vs

T.S. Kelawala and Dre. the Supreme Court had observed that the workmen
are not entitled to wages for the strike period. irrespective of whether the strike
is legal or illegal. However, a larger bench of the Supreme Court had earlier
upheld the claim for wages for the strike period, where the strike was held to
be neither illegal nor unjustified. And. where there are two pronouncements of
the Supreme Court, suggesting or indicating contrary views, the ruling of the
decision rendered by the larger Bench should be adopted.
Strikes in The Act prohibits strike in public utility service

Public Sector
Undertaking  Without giving notice of strike to the employer six weeks before
[Section 22] striking; or
 Within fourteen days of giving such notice ; or
 Before the expiry of the date of strike specified in any such notice
 During the pendency of any conciliation proceedings and 7 days after
the conclusion of such proceedings.
 If an employer receives any such notice he shall within five days report
to the appropriate Government
Lock-out Lock-out means the following:

[Section 2(I)]
 Temporary closing of a place of employment or the suspension of
work, or the refusal by an employer to continue to employ any
employee.
 Termination of the service of the workman due to non-renewal of the
contract of employment on its expiry or the contract being terminated in
terms of the contract.

 Termination of the service of a workman on the ground of continued ill
health.
 Lock out is opposite to and an antithesis of strike.
Prohibition of Lock-out Section 23
No employer shall declare a lock-out
 During the pendency of conciliation proceedings before a Board and 7

days after the conclusion of Such proceedings;
 During the pendency of proceedings before a Labour Court. Tribunal or
National Tribunal and two months. after the conclusion of such
proceedings;
During the pendency of arbitration proceedings before an arbitrator and two
months after the conclusion of such proceedings; or
 During any period in which a settlement or award is in operation, in
respect of any of the matters covered by the settlement or award.
Illegal Lockout [Section 24)
 Lock-out shall be illegal if it is commenced or declared in contravention

of section 22 or section 23 or it is continued in contravention of an
order made under section 10(3) or section 10A(4A).
 A lock-out declared in consequence of an illegal strike shall not be
deemed to be illegal.
Lay-Off As defined in Section 2(kkk), lay-off with its grammatical variations and
cognate expressions means the failure, refusal or inability of an employer on
account of shortage of coal, power or raw materials or the accumulation of
stocks or the breakdown of machinery or natural calamity or for any other
reason to give employment to a workman whose name is borne on the muster
rolls of his industrial establishment.
Compensation to workmen laid-off Section 25C
 Whenever a workman (other than a badli workman or a casual

workman) whose name is borne on the muster rolls and has completed
one year of continuous service is laid-off, he shall be paid for all days
during which he is so laid-off except for weekly holidays.
 The compensation shall be equal to 50% of the total of basic wages
and dearness allowance.
 If during any period of twelve months, a workman is laid-off for more
than 45 days, no such compensation shall be payable in excess of the
first 45 days if there is an agreement between the workman and the
employer.
Non-entitlement of Compsensation for laid off Section 25E
 No compensation shall be paid to a workman if he refuses to accept

any alternative employment in the same establishment, or in any other

establishment belonging to the same employer situate in the same
town or village or situate within a radius of five miles from the
establishment to which he belongs,
 Such alternative employment should not require any special skill or
previous experience and can be done by the workman.
 The wages should be that normally have been paid to the workman.
 If he does not present himself for work at the appointed time during
normal working hours at least once a day no compensation shall be
paid.
 If such laying-off is due to a strike or slowing-down of production on the
part of workmen in another part of the establishment, no compensation
shall also be paid.
Prohibition of lay-off Section 25M

 Where the workman of a mine has been laid off, the employer shall,
within a period of 30 days from the date of commencement of such lay-
off, apply to the appropriate Government for permission to continue the
lay-off.
Retrenchment As defined in Section 2(oo), retrenchment means the termination of the

service of a workman by the employer for any reason whatsoever otherwise
than as a punishment inflicted by way of disciplinary action.
Exception Retrenchment does not include the following :

 Voluntary retirement of the workman.
 Retirement of the workman on reaching the, age of superannuation.
 Termination of the service of the workman as a result of the non-
renewal of the contract of employment.
 Termination of the service of a workman on the ground of continued ill
health.
 Retrenchment may be for surplus age, redundancy due to advanced
machinery, slowdown in business. Reason does not matter.
Retrenchment Compensation Section 25F
A workman who has been in continuous service for not less than one year
under an employer shall not be retrenched by the employer under the
following circumstances :
 Until the workman has been given one month's notice in writing
indicating the reasons for retrenchment or the workman has been paid
wages in lieu of such notice.
 Until the workman has been paid compensation equivalent to 15 days'
average pay for every completed year of continuous service or any part
thereof in excess of six months.
 Until notice is served on the appropriate Government.
Notice of Retrenchment Section 25N
In case of an industrial establishment (not being a seasonal establishment or

in which work is performed only intermittently) in which not less than 100
workmen were employed on an average per working day for the preceding 12
months no workman employed in any such establishment, who has been in
continuous service ,for not less than one year under an employer shall be
retrenched by that employer until the workman has been given three months'
notice in writing indicating the reasons for retrenchment and the period of
notice has expired or the workman has been paid in lieu of such notice, wages
for the period of the notice.
Re-employment of retrenched workmen Section 25H
Where any workman is retrenched and the employer proposes to employ any
persons, he shall give an opportunity to the retrenched workmen who are
citizens of India for re-employment.
 Such retrenched workmen who offer themselves for re-employment
shall have preference over other persons.
Closure of  As defined in Section 2(cc) „closure‟ means the permanent closing

Undertaking c down of a place of employment or part thereof.
 Section 25FFA of the Act provides that an employer who intends to
close down an undertaking shall serve a notice on the appropriate
Government stating clearly the reasons for the closure at least 60 days
before the date of the intended closure.
Compensation in case of Closure Section 25FFF
 Where an undertaking is closed, every workman who has been in

continuous service for not less than one year in that undertaking
immediately before such closure shall be entitled to notice and
compensation as if the workman had been retrenched.
Where the undertaking is closed down on account of unavoidable
circumstances beyond the control of the employer, the compensation shall not
exceed average pay for 3 months.
Penalties An employer shall be liable to the following penalties for offences under the
Act:
 Lay-off without previous permission " [Section 25Q] Imprisonment

for a term up to one month or with fine up to 1000, or with both.
 Retrenchment without previous permission [Section 25Q]

Imprisonment for a term up to one month or with fine up to 1000, or
with both.
 Closure without permission [Section 25R] Imprisonment for a term

up to six months or with fine up to 5000 or with both.
 Closure if not permitted by authority -[Section 25R] Imprisonment

up to one year, or with fine up to 5000, or with both. In case of
continuing offence, further fine up to 2000 for every day during which
the contravention continues.
 Committing unfair labour practices [Section 25U] Imprisonment up

to six months or with fine up to IOOO or with both.
 Illegal strikes and lock-outs [Section 26] Imprisonment up to one

month, or with fine up to 50, or with both.
Furtherance of illegal lock-outs [Section 26] Imprisonment up to one

month, or with up to 1000, or with both.
 Instigating strike etc. [Section 27] Imprisonment up to six months, or
with up to 1000, or with both.
 Giving financial aid to illegal strikes and lock-outs [Section 28]

Imprisonment up to six months, or with fine up to 1000, or with both.
 Committing breach of settlement or award [Section 29]

Imprisonment up to six months, or with tine, or with both, and in case of
continuing one, further tine up to 200 for every day during which the
breach continues.
 Disclosing confidential information [Section 30] Imprisonment up to

six months, or with fine up to 1 000, or with both. '
 Closure without notice [Section 30A] Imprisonment up to six months,

or with fine up to 5000, or with both.
 Other offences -[Section 31] Any employer who contravenes the

provisions for changing conditions of service, etc. during pendency of
proceedings, shall be punishable with imprisonment up to six months,
or with fine up to 1000, or with both. Where no penalty is provided by
the Act for any contravention fine up to 100.
 Offence by companies, etc [Section 32] Where company commits an

offence, every director, manager, secretary, or other officer or person
concerned with the management thereof shall, unless he proves that
the offence was committed without his knowledge or consent, be
deemed to be guilty of such offence.
1. A workman who has been in continuous service for not less (a) 7 days, 30 days
than one year under an employer shall not be retrenched by (b) 15 days, 2
the employer until the workman has been paid compensation months
equivalent to ............. average pay for every completed year of (c) 15 days, 3
continuous service or any part thereof in excess of …… months
(d) 15 days, 6
months
2. In case of an industrial establishment (not being a seasonal (a) 10, 15 days'
establishment or in which work is performed only (b) 20, 30 days'
intermittently) in which not less than ............. workmen were (c) 100, three
employed on an average per working day for the preceding 12„ months'
months no workman employed in any such establishment, (d) 250, three
shall be retrenched until the workman has been given ............. months'
notice in writing.
An employer who intends to close down an undertaking shall (a) 30 days '
serve a notice on the appropriate Government stating clearly (b) 45 days
the reasons for the closure at least ............ before the date of (c) 60 days
the intended closure. (d) 80 days
For lay-off without previous permission, penalty is (a) Rs. 500

imprisonment for a term up to one month or with fine up to (b) Rs.1000
......... ..., or with both. (c) Rs.5000
(d) Rs.10000
For retrenchment without previous permission, penalty is (a) Rs.500
imprisonment for a term up to one month or with fine up to. (b) Rs.1000
Rs........... or with both. (c) Rs.5000
(d) Rs.10000
For closure without permission, penalty is imprisonment for a (a) Rs. 500
term up to six months or with fine up to......... Or with both. (b) Rs. 1000
(c) Rs. 35000
(d) Rs.10000
Prior intimation to the appropriate Govt to lay off, retrench or (a) 100
close down an establishment is required under the Industrial (b) 1000
Disputes Act, 1947 where there are ............ workers (c) 50
(d) 500
As per the provisions contained in Chapter VB of the Industrial (a) 50
Dispute Act, 1947 establishment employing ................ persons (b) 100
or more are required to seek prior permission of Appropriate (c) 250
Government before effecting lay-off, retrenchment and closure. (d) 500
.............. have been set up under the provisions of Industrial (a) Lok-Adalat
Dispute Act, 1947 for adjudication of industrial disputes in an (b) Industrial
organisation. Tribunal
(c) Labour Court
(d) All of the
above.
Forming of a' Works Committee under the industrial Disputes (a) 1000
Act, is mandatory where the number of employees is................... (b) 100
(c) 500
(d) 250
Lay off compensation is to be paid .......... of average wages. (a) 15 days
(b) 50%
(c) 60%
(d) 75%
Award means an interim or a final determination of any (a) Labour Court
industrial dispute determined by...... . ' (b) Arbitrator
(c) Both (a) & (b)
(d) None of the
above
Which of the following statement is true about the (a) it is ultra-vitae
Constitutional validity of section 10 of the industrial Dispute the Constitution
Act, 1947? (b) It is intra-vires
the Constitution
(c) Both(a) & (b)
(e) None of the
above
............ means the temporary closing of a place of employment (a) Lay-off
or suspension of work or the refusal by an employer to (b) Retrenchment
continue to employ any number of persons employed by him. (c) Closure
(d) All of the above
.............. means the termination by the employer of the services (a) Lay-off
of a workman for any reason whatsoever otherwise than as a (b) Retrenchment
punishment inflicted by way of disciplinary action. (c) Closure
(d) All of the above
An „arbitrator' under the Industrial Disputes Act, 1947 includes (a) lndividual
an ................ (b) Partnership
(c) Corporate
entity
(d) None of the
above
Which of the following is considered an „industry‟ under the (a) Posts and
Industrial Disputes Act, 1947? Telegraph
(CS EP June 2012) Department
(b) Central Institute
of Fisheries
(c) Construction
and
maintenance of
National and
State highways
(d) Dock Labour
Board.
Which of the following type of strike is not called a primary (a) Stay in strike
strike? (b) Tool down
(CS EP June 2013) strike
(c) Pen down strike
(d) Go slow.
Under section 2(oo) of the industrial Disputes Act, 1947 (a) Settlement
termination of the services of a workman by the employer for (b) Retirement
(any reason whatsoever, otherwise than as a punishment (c) Suspension
inflicted by way of disciplinary action, but not including (d) Retrenchment
voluntary retirement; or superannuation; or non renewal of
contract of employment; or termination of service on the
ground of continued ill-health is known as –
(CS EP Dec 2014)
The preamble of the industrial Disputes Act, 1947 states that it (a) Investigation;
is an Act to make provision for the and of industrial disputes settlement
and for certain other purposes. (b) Inquiry;
(CS EP Dec 2014) arbitration
(c) Investigation;
safety
(d) Inquiry; welfare.
Under section 3 of the industrial Disputes Act, 1947 the (a) AnAppropriate
appropriate Government may be general or special order Committee; 300
require the employer to constitute in the prescribed manner in (b) An Employer‟s
industrial establishments, where or more workmen are Committee;
employed or have been employed on any working day in the 200
preceding 12 months and such Committee will be comprised of (c) A Works
the representatives of employers and workmen engaged in the Committee; 100
establishment. (d) A Government
(CS EP Dec 2014) Committee;
500.
Under of the industrial Disputes Act, 1947 unfair labour (a) Second
practices on the part of_ employers and trade unions of schedule
employers are specified in ~ (b) Third schedule
(CS EP Dec 2014) (c) Fourth
schedule
(d) Fifth schedule

The Supreme Court carried out an indepth study of the (a) Workman
definition of the term „industry' in a comprehensive manner and oi Dimakuchi
laid down the tests to determine whether an activity is covered Tea Estate v
by the definition of 'lndustry‟ or not. Also referred to u the triple Dimakuchi
test, it was laid down in the can of Tea Estate.
(CS EP Dec. 2014) (b) Hospital
Employees
Union v.
Christian
Medical College.
(c) Bangalore
Water Supply
and Sewerage
Board v. A
Raiappa
(d) Corporation
of City of Nagpur
v. Employee.
Under the industrial Disputes Act, 1947 which of the following (a) Classification
matter does not fail within the jurisdiction of industrial by grades
Tribunals- (b) Rationalisation
(CS EP Dec 2014) (c) Leave with
wages and
holidays
(d) Illegality or
otherwise of a
strike or lock-out.
As per section 22 of the industrial Disputes Act, 1947 no (a) Three weeks
person employed in a public utility service shall go on strike in (b) Six weeks
breach of contract without giving to the employer a notice of (c) Eight weeks
strike, within before striking or within fourteen days of giving (d) Five weeks.
such notice. (CS EP Dec. 2014)
Under the industrial Disputes Act. 1947 which of the following (a) Hours of work
matter does not fall within the jurisdiction of Labour Courts and rest
(CS EP Dec 2014) intervals
(b) The
application and
interpretation
of standing
orders
(c) Withdrawal of
any customary
concession or
privilege
(d) The propriety
or legality of an
order passed
by an employer
under standing
orders.
………..means any dispute (a) Trade

between employers and workmen, or between workmen and dispute;
workmen, or between employers and employers, which is Industrial
connected with the employment or no employment, or the Disputes Act,
terms of employment or the conditions of labour, of any 1947
person, and 'workmen‟ means all persons employed in trade (b) Industrial
or industry whether or not in the employment of the employer dispute;
with whom the trade dispute arises as defined under the Industrial
(CS EP Dec. 2014) Disputes Act,
1947
(c) Trade dispute;
Trade Union
Act, 1926
(d) Company
dispute;
Companies
Act, 1956.
Under the Industrial Disputes Act, 1947 means the temporary (a) Lay-off; an
closing of a place of employment or suspension of work or the employer
refusal by to continue to employ any number of persons so (b) Lock out; an
employed. employer
(CS EP Dec. 2014) (c) Strike;
Government
(d) Retrenchment;
an employer.
Which of the following person is not included in the definition (a) Who is
of „workman‟ under the industrial Disputes Act, 1947 --„ employed in a
supervisory
capacity drawing
more than € 6,500
but less than ?
7,500 per month
as wages '
(b) Who is
employed in a
supervisory
capacity drawing
more than 2' 1,600
but less than 2„ _
6,500 per month
as wages
(c) Who is
employed in a
supervisory
capacity drawing
more than ?
10,000 per month
as wages
(d) Who is
employed in a
supervisory
capacity drawing
less than 1,600 per
month as wages
Which of the following is included in the definition of „Wages‟ (a) Any bonus
under the Industrial Disputes Act, 1947 – (b) Any traveling
(CS EP June 2015) concession
(c) Any gratuity
payable on the
termination of the
service
(d) Any
commission
payable on the
promotion of
sales or business
or both
Any industrial dispute or any matter appearing to be connected (a) Labour Court
with, or relevant to the dispute specified in the Second (b) Court of Inquiry
Schedule of the Industrial Disputes Act, 1947 the appropriate (c) Industrial
Government, by order in writing may make a reference for Tribunal
adjudication to – (d) National
(CS EP June 2015) Tribunal
In terms of section 25N of the Industrial Disputes Act, 1947 a (a) One month
workman employed in any industrial establishment shall be (b) Three months
retrenched by the employer by giving notice in writing (c) Fifteen days
indicating the reasons for retrenchment. (CS EP June 2015) (d) Twenty-one
days
In the case of Workman of Dimakuchi Tea Estate v. Dimakuchi (a) Promotion of
Tea Estate, which of the following objectives of the industrial measures of
Disputes Act, 1947 are not laid down by the Supreme Court – securing and
(CS EP June 2015) preserving amity
and good relations
between the
employer and
workmen
(b) Investigation
and settlement of
industrial disputes
between
employers and
employees
(c) Promotion of
collective
bargaining
(d) Promotion of
lay-off and lock-
outs
Under the Industrial Disputes Act, 1947 which of the following (a) Hours of work
matter does not fall within the jurisdiction of Labour Courts – and rest
(CS EP June 2015) intervals
(b) The
application
and
interpretation
of standing
orders
(c) Withdrawal
of any
customary
concession or
privilege
(d) The
propriety or
legality of an
order passed
by an
employer
understanding
order.
Under the Industrial Disputes Aet, 1947 failure, refusal or (a) Lay-off
inability of an employer to give employment, to a„ workman (b) Look out
whose name appears on the muster-rolls of his industrial (c) Retrenchment
establishment and who has not been retrenched due to break- (d) Termination
down of machinery is defined as – (CS EP June 2015)
(e)

Industrial AND General Law: Topic Covered:-Coverage - 30 Marks

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Industrial AND General Law: Topic Covered:-Coverage - 30 Marks

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CS EXECUTIVE CS NAINA JINDAL

TOPIC COVERED:- COVERAGE - 30 MARKS

SOVEREIGN SOCIALIST SECULAR DEMOCRATIC

Preamble to the Constitution of India reads as:

WE THE PEOPLE OF INDIA. Having solemnly

SOVERIN, SOCIALIST, SECULAR, DEMOCRATIC

JUSTICE, social, economic and political:

LIBERTY of thought, expression, belief, faith and

EQUALITY of status and opportunity:

And to promote among them all

FRATERNITY assuring the dignity of the Individual

 Independence of Judiciary: The judiciary of our country is totally

Professor K.C.Wheare thus held that the Indian Constitution establish a

The expression „Local authority’ includes the following:

The expression „other authority’ includes the following:

The expression ‘under the control of the Government of India’ covers

 closely relates to Government functions.

Where court exercises a judicial function, it can not be regarded as State as

Right to equality is on of the basic fundamental human rights afforded by

o Such distinction should have a reasonable relationship

 It may be noted that Article 14 applies to any person and is

RIGHT TO Freedom of speech and expression is a very important aspect of democracy,

pre-censorship on publication of views, ideas, analysis, etc is violative of

INDIA [ARTICLE For the protection of interest of any scheduled tribe.

PROTECTION IN Article 20 guarantees to all persons, whether citizens or non-citizens, the

ARTICLE 22 PROTECTION AGAINST ARBITRARY ARREST AND DETENTION

It may be noted that aforesaid safeguards are not available to:

of which are specifically appropriated in payment of expenses for the

Article 32 guarantees the enforcement of fundamental rights. Article 32

for enforcement of fundamental right only. However, under Article 226.

 The office is created by the State or by the Constitution itself; and

pass the law ever if the matter is contained in state list

passes an Act which outwardly purports to be dealing with a subject within

GENERAL PRINCIPLES/RULES OF INTERPRETATIONS

 use of foreign decision: use of foreign decisions of countries,

SPECIFIC RELIEF ACT 1963

 Under Section 7, money compensation may be alternative

 Separate and independent part.

court could not enforce.

 A contract to refer present future disputes to arbitration except provided

For example. A sues B to compel specific performance of contract in writing to

LAW RELATING TO TORTS

speech which is synchronized with it amount to tort.

 Specific Restitution of Property.

 avoiding unnecessary damage.

Limitation Act, 1963

 If a person is affected by several disability at one point of time, then

 If the legal disabilities continue up to the death of the person under

 If the discharge can be given with the consent of such person, he

 In computing the period of limitation prescribed for an appeal the

 the day on which the period begins to run;

 the time required for obtaining the copy of decree, sentence,

 In computing the period of limitation prescribed for an application for

 the day on which the period begins to run;

 In computing the period of limitation prescribed for an application to

 the day on which the period begins to run; and

person making the payment or must appear in a writing signed by the

Indian Evidence Act, 1892

circumstance. In Tara Devi v. State of U.P., it was held that motive of a

statement i.e., one is in-culpatory and another is ex-culpatory.

2. Admission and Confession: An admission of liability or confession

3. Dying Declaration: As per Section 32, statements are proved

The evidence given by witness in a judicial proceeding can be used as