Indian Evidence Act

November 30, 2014

Section 1. Short title, extent, and commencement

This Act may be called the Indian Evidence Act, 1872.

It extends to the whole of India ¹[except the State of Jammu and Kashmir] and applies to all judicial proceedings in or before any Court, including Courts-martial, ²[other than Courts-martial convened under the Army Act] (44 & 45 Vict., c. 58) 3[the Naval Discipline Act (29 & 30 Vict., c. 109) or ⁴[***] the Indian Navy (Discipline) Act, 1934 (34 of 1934)^{5 6}[or the Air Force Act] (7 Geo. 5, c. 51) but not to affidavits ⁷presented to any Court or Officer, nor to proceedings before an arbitrator; and it shall come into force on the first day of September, 1872.

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1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “except Part B States”.

2. Ins. by Act 18 of 1919, sec. 2 and Sch. I. See section 127 of the Army Act (44 and 45 Vict., c. 58).

3. Ins. by Act 35 of 1934, sec. 2 and Sch.

4. The words “that Act as modified by” omitted by the A.O. 1950.

5. See now the Navy Act, 1957 (64 of 1957)

6. Ins. by Act 10 of 1927, sec. 2 and Sch. I.

7. As to practice relating to affidavits, see, the Code of Civil Procedure, 1908 (Act 5 of 1908), sec. 30 (c) and Sch. 1, Order XIX. See also the Code of Criminal Procedure, 1973 (Act 2 of 1974), sections 295 and 297.

Section 2. [Repeal of enactment.] Rep. By the Repealing Act,1938 (1 of 1938), S.2 and Sch..

[Repeal of enactment.] Rep. By the Repealing Act,1938 (1 of 1938), S.2 and Sch..

Section 3. Interpretation clause

In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:—

“Court”. —“Court” includes all Judges¹ and Magistrates, ²and all persons, except arbitrators, legally authorized to take evidence.

“Fact”.—“Fact” means and includes—

(1) any thing, state of things, or relation of things, capable of being perceived by the senses;

(2) any mental condition of which any person is conscious.

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.

(b) That a man heard or saw something, is a fact.

(c) That a man said certain words, is a fact.

(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation, is a fact.

“Relevant”.—One fact is said to be relevant to another when the one is

connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

“Facts in issue”.—The expression “facts in issue” means and includes—

any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.

Explanation.—Whenever, under the provisions of the law for the time being in force relating to Civil Procedure,³any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.
Illustrations

A is accused of the murder of B.

At his trial the following facts may be in issue:—

That A caused B’s death;

That A intended to cause B’s death;

That A had received grave and sudden provocation from B;

That A at the time of doing the act which caused B’s death, was, by reason of unsoundness of mind, incapable of knowing its nature.

“Document”.—“Document”⁴ means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

Illustrations

A writing⁵ is a document;

Words printed, lithographed or photographed are documents;

A map or plan is a document;

An inscription on a metal plate or stone is a document;

A caricature is a document.

“Evidence”.—“Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry,

such statements are called oral evidence;

(2) ⁶[all documents including electronic records produced for the inspection of the Court],

such documents are called documentary evidence.

“Proved”.—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

“Disproved”.—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

“Not proved”.—A fact is said not to be proved when it is neither proved nor disproved.

⁷[“India”.—“India” means the territory of India excluding the State of Jammu and Kashmir.]

⁸[the expressions “Certifying Authority”, “digital signature”, “Digital Signature Certificate”, “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber” shall have the meanings respectively assigned to them in the Information Technology Act, 2000.]

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1. Cf. the Code of Civil Procedure, 1908 (Act 5 of 1908), sec. 2, the Indian Penal Code (Act 45 of 1860), sec. 19; and, for a definition of “District Judge,” the General Clauses Act, 1897 (10 of 1897), sec. 3 (17).

2. Cf. the General Clauses Act, 1897 (10 of 1897), sec. 3 (32) and the Code of Criminal Procedure, 1973 (Act 2 of 1974).

3. See now the Code of Civil Procedure, 1908 (5 of 1908) as to the settlement of issues, see Sch. I, Order XIV.

4. Cf. the Indian Penal Code (Act 45 of 1860), sec. 29 and the General Clauses Act, 1897 (10 of 1897), sec. 3 (18).

5. Cf. definition of “writing in the General Clauses Act, 1897 (10 of 1897), sec. 3 (65).

6. Subs. by Act 21 of 2000, sec. 92 and Sch. II, for certain words “all documents produced for the inspection of the Court” (w.e.f. 17-10-2000).

7. Subs. by Act 3 of 1951, sec. 3 and Sch., for the definition of “State“ and “States”, which was ins. by the A.O. 1950.

8. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Section 4. “May presume”

Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

“Shall presume” – Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

“Conclusive proof” – Where one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

Chapter II – Of the relevancy of facts

Section 5. Evidence may be given of facts in issue and relevant facts

Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Explanation – This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.¹

Illustrations

(a) A is tried for the murder of B by beating him with a club with the intention of causing his death.

At A’s trial the following facts are in issue -

A’s beating B with the club;

A’s causing B’s death by such beating;

A’s intention to cause B’s death.

(b) A suitor does not bring with him and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to product the bond or prove its contents at a subsequent stage of the proceedings otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.

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1. See now the Code of Civil Procedure, 1908 (5 of 1908).

Section 6. Relevancy of facts forming part of same transaction

Facts which, though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after is as to from part of the transaction, is a relevant fact.

(b) A is accused of waging war against the ¹Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.

(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.

(d) The question is whether certain goods ordered from B were delivered to A. the goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.

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1. Subs. by the A.O. 1950, for “Queen”.

Section 7. Facts which are occasion, cause or effect of facts in issue

Facts Which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.

Illustrations

(a) The question is, whether A robbed B.

The facts that, shortly before the robbery B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it, to third persons, are relevant.

(b) The question is, whether A murdered B.

Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts.

(c) The question is, whether A poisoned B.

The state of B’s health before the symptoms ascribed to poison and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts.

Section 8. Motive preparation and previous or subsequent conduct

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1. – The word “conduct” in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2. – When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

Illustrations

(a) A is tried for the murder of B.

The facts that, A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.

(b) A sues B upon a bond for payment of money. B denies the making of the bond.

The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, it relevant.

(c) A is tried for the murder of B by poison.

The fact that, before the death of B,A procured poison similar to that which was administered to B, is relevant.

(d) The question is, whether a certain document is the will of A.

The facts that not long before the date of the alleged will A made inquiry into matters to which the provisions of the alleged will relate that he consulted vakils in reference to making the will, and that he caused drafts or other wills to be prepared of which he did not approve, are relevant.

(e) A is accused of a crime.

The facts, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favorable to himself, on that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.

(f) The question is, whether A robbed B.

The facts that, after B was robbed, C said in A’s presence – “the police are coming to look for the man who robbed B” and that immediately afterwards A ran away, are relevant.

(g) The question is, whether A owes B rupees 10,000.

The fact that, A asked C to lend him money, an that D said to C in A’s presence and hearing “Advice you The Orient Tavern to trust A, for he owes B 10,000 rupees” and that A went away without making any answer, are relevant facts.

(h) The question is, whether A committed a crime.

The facts that, A absconded after receiving a litter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant.

(i) A is accused of a crime.

The facts that, after the commission of the alleged crime, he absconded or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.

(j) The question is whether A was ravished.

The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which the complaint was made, are relevant.

The facts that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157.

(k) The question is whether A was robbed.

The fact that, soon after the alleged robbery, he made a complaint, relating to the offence, the circumstances under which, and the terms in which the complaint was made, are relevant.

The fact that he said he had been robbed without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157.

Section 9. Facts necessary to explain or introduce relevant facts

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

Illustrations

(a) The question is, whether a given document is the will of A.

The state of A’s property and of his family at the date of the alleged will may be relevant facts.

(b) A sues B for a libel imputing disgraceful conduct to A;B affirms that the matter alleged to be libelous is true.

The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.

The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B.

(c) A is accused of a crime.

The fact that, soon after the commission of the crime, A absconded from his house, is relevant under section 8, as a conduct subsequent to and affected by facts in issue.

The fact that, at the time when he left home he had sudden and urgent business at the place to which he went is relevant, as tending to explain the fact that he left home suddenly.

The details of the business on which he left are not relevant except in so far as they are necessary to show that the business was sudden and urgent.

(d) A sues B for inducing C to break a contract of service made by him with A.C, on leaving A’s service, says to A – “I am leaving you because B has made me better offer.” The statement is a relevant fact as explanatory of C’s conduct which is relevant as a fact in issue.

(e) A, accused of theft is seen to give the stolen property to B, who is seen to give it to A’s wife. B says as he delivers it “A says you are to hide this.” B’s statement is relevant as explanatory of a fact which is pat of the transaction.

(f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.

Section 10. Things said or done by conspirator in reference to common design

Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose showing that any such persons was a party to it.

Illustration

Reasonable grounds exists for believing that A has joined in a conspiracy to wage war against the ¹Government of India.

The facts that, B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D Persuaded persons to join the conspiracy in Bombay. E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.

1. Subs. by the A.O. 1950, for “Queen”.

Section 11. When Facts not otherwise relevant become relevant

Facts not otherwise relevant, are relevant.

(1) if they are inconsistent with any fact in issue or relevant fact;

(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Illustrations

(a) The question is, whether A committed a crime at Calcutta on a certain day.

The fact that, on that day, A was at Lahore, is relevant.

The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.

(b) The question is, whether A committed a crime.

The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D is relevant.

Section 12. In suits for damages, facts tending to enable Court to determine amount are relevant

In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded, is relevant.

Section 13. Facts relevant when right or custom is in question

Where the question is as to existence of any right or custom, the following facts are relevant:

(a) any transaction by which the right or custom in question was created, claimed modified, recognized, asserted or denied, or which was inconsistent with its existence;

(b) Particular instances in which the right or custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted, or departed from.

Illustrations

The question is whether A has a right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father irreconcilable with the mortgage particular instances in which A’s father exercised the right or in which the exercise of the right was stopped by A’s neighbors, are relevant facts.

Section 14. Facts showing existence of state of mind or of body or bodily feeling

Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant.

¹Explanation 1 – A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally but in reference to the particular matter in question.

Explanation 2. – But where, upon the trail of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this Section, the previous conviction of such person shall also be a relevant fact.

Illustration

(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article.

The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen.

²(b) A is accused of fraudulently delivering to another person a counterfeit coin which, at the time when he delivered it, he knew each and all of the articles of which he was in possession to be stolen.

The fact that, at the time of delivery A was possessed of a number of other pieces of counterfeit coin, is relevant.

The fact that, A had been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit is relevant.

(c) A sues B for damage done by a god of B’s which B knew to be ferocious.

The facts that, the dog had previously bitten X, Y and Z and that they had made complaints to B are relevant.

(d) The question is, whether A, the acceptor of a bill of exchange, knew that the name of payee was fictitious.

The fact that, A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person, is relevant as showing that A knew that the payee was a fictitious person.

(e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B.

The fact of previous publications by A respecting B, showing ill-will on the part of A towards B is relevant, as proving A’s intention to harm B’s reputation by the particular publication in question.

The facts that, there was no previous quarrel between A and B, and that A repeated the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B.

(f) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss.

The fact that, at the time when A represented C to be solvent, C was supposed to be solvent by his neighbors and by persons dealing with him, is relevant, as showing that A made the representation in good faith.

(g) A is sued by B for the price of work done by B, upon a house of which A is owner, by the order of C, a contractor.

A’s defence is that B’s contract was with C.

The fact that A paid C for the work in question is relevant, as proving that A did, in good faith, make over to C the management of the work in question, so that C was in a position to contract with B on C’s own account, and not as agent for A.

(h) A is accused of the dishonest misappropriation of property which he had found, the question is whether, when he appropriated it, he believed in good faith, that the real owner could not be found.

The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not in good faith believe that the real owner of the property could not be found.

The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not good faith believe that the real owner of the property could not be found.

The fact that A knew, or had reason to believe, the notice was given fraudulently by C who had heard of the loss of the property and wished to set up a false claim to it, is relevant as showing that the fact that A knew of the notice did not disprove A’s good faith.

(i) A is charged with shooting at B with intent to kill him. In order to show A’s intent, the fact of A’s having previously shot at B may be proved.

(j) A is charged with sending heartening letters to B. Threatening letters previously sent by A to B may be proved, as showing the intention of the letters.

(k) The question is, whether A has been guilty of cruelty towards B, his wife.

Expressions of their feeling towards each other shortly before or after the alleged cruelty, are relevant facts.

(l) The question is, whether A’s death was caused by poison.

Statement made by A during hiss illness as to his symptoms, are relevant facts.

(m) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured.

Statements made by A as to the state of his health at or near the time in question, are relevant facts.

(n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured.

The fact that, B’s attention was drawn on other occasions to the defect of that particular carriage, is relevant.

The fact that, B was habitually negligent about the carriage which he let to hire is relevant.

(o) A is tried for the murder of B by intentionally shooting him dead.

The fact that, A on other occasions shot a B is relevant as showing his intention to shoot B.

The fact that, A was in the habit of shooting at people with intent to murder them, is irrelevant.

(p) A is tried for a crime.

The fact that, he said something indicating an intention to commit that particular crime is relevant.

The fact that, he said something indicating a general disposition to commit crimes of that class, is irrelevant.

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1.   Subs. by Act 3 of 1891, sec. 1, for the original Explanation.

2.   Subs. by Act 3 of 1891, sec. 1, for Illustration (b).

Section 15. Facts bearing on question whether act was accidental or intentional

When there is a question whether an act was accidental or intentional, ¹ or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrence, in each of which the person doing the act was concerned, is relevant.

Illustrations

(a) A is accused of burning down his house in order to obtain money for which it is insured.

The fact that, A lived in several houses successively each of which he insured, in each of which he insured, in each of which a fire occurred, and after each of which fires A received, payment from a different insurance office, are relevant, as tending to show that the fires were not accidental.

(b) A is employed to receive money from the debtors of B.

It is A’s duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive.

The question is, whether his false entry was accidental or intentional.

The facts that, other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant.

(c) A is accused of fraudulently delivering to B a counterfeit rupee.

The question is, whether the delivery of the rupee was accidental.

The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D and E are relevant, as showing that the delivery to B was not accidental.

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1.   Ins. by Act 3 of 1891, sec. 2.

Section 16. Existence of course of business when relevant -

When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.

Illustrations

(a) The question is, whether a particular letter was dispatched.

The facts that, it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant.

(b) The question is, whether a particular letter reached A. The fact that, it was posted in due course, and was not returned through the Dead Letter Office, are relevant.

Admissions

Section 17. Admission defined

An admission is a statement, ¹oral or documentary which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.

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1.   Subs. by Act 21 of 2000, sec. 92 and Sch. II, for “oral or documentary” (w.e.f. 17-10-2000).

Section 18. Admission by party to proceeding or his agent

Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to made them, are admissions.

By suitor in representative character – Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.

Statements made by -

(1) by party interested in subject matter; persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding and who make the statement in their character of persons so interested; or

(2) by person from whom interest derived; persons from whom the parties to the suit have derived their interest in the subject-matter of the suit,

are admissions, if they are made during the continuance of the interest of the persons making the statements.

Section 19. Admissions by persons whose position must be proved as against party to suit

Statements made by persons whose position or liability it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against the made if they are made whilst the person making them occupies such position or is subject of such liability.

Illustration

A undertakes to collect rent for B.

B sues A for not collecting rent due from C to B.

A denies that rent was due from C to B.

A statement by C that he owned B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.

Section 20. Admission by persons expressly referred to by party to suit

Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.

Illustration

The question is, whether a horse sold by A to B is sound A says to B “Go and ask CC knows all about it” C’s statement is an admission.

Section 21. Proof of admission against persons making them, and by or on their behalf

Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they con not be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases.

(1) An admission ma be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead it would be relevant as between third person under section 32.

(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

Illustrations

(a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged.

A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine nor con B Prove a statement by himself that the deed is gorged.

(b) A the captain of a ship, is tried for casting her away.

Evidence is given to show that the ship was taken out of her proper course.

A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statement, because they would be admissible between third parties, if he were dead under Section 32, Clause (2).

(c) A is accused of a crime committed by him at Calcutta.

He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day.

The statement in the date of the letter is admissible, because if A were dead it would be admissible under Section 32, Clause (2).

(d) A is accused of receiving stolen goods knowing them to be stolen.

He officers to prove that he refused to sell them below their value.

A may prove these statements though they are admissions, because they are explanatory of conduct influenced by facts in issue.

(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit.

He offers to prove that he asked a skilful person to examine the coins as he doubted whether it was counterfeit or not, and that person did examine it and told him it was genuine.

A may prove these facts for the reasons stated in the last proceeding illustration.

Section 22. When oral admission as to contents of documents are relevant

Oral admissions as to the contents of a document are not relevant unless and until the party proposing them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

Section 22A.When oral admissions as to contents of electronic records are relevant.

¹[22A. When oral admissions as to contents of electronic records are relevant.—Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.]

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1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Section 23. Admission in Civil cases, when relevant

In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given

Explanation – Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under Section 126.

Section 24. Confession by inducement, threat or promise when irrelevant in criminal proceeding

A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, ¹having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.

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1. For prohibition of such inducements, etc., see the Code of Criminal Procedure, 1973 (2 of 1974), section 316.

Section 25. Confession to police officer not to be proved

No confession made to police officer¹ shall be proved as against a person accused of any offence.

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1. As to statements made to a police officer investigating a case, see the Code of Criminal Procedure, 1973 (2 of 1974), section 162.

Section 26. Confession by accused while in custody of police not to be proved against him

No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate¹, shall be proved as against such person.

^,2[Explanation.—In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George ^,3[***] or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882)^,4].

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1. A Coroner has been declared to be Magistrate for the purposes of this section, see the Coroners Act, 1871 (4 of 1871), section 20.

2. Ins. by Act 3 of 1891, sec. 3.

3. The words “or in Burma” omitted by the A.O. 1937.

4. See now the Code of Criminal Procedure, 1973 (2 of 1974).

Section 27. How much of information received from accused may be proved

Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

Section 28. Confession made after removal of impression caused by inducement, threat or promise, relevant

If such a confession as is referred to in Section 24 is made after the impression caused by any inducement, threat or promise has, in the opinion of the Court been fully removed it is relevant.

Section 29. Confession otherwise relevant not to become irrelevant because of promise of secretary etc.

If such a confession is otherwise relevant, it does not become it was made under a promise of secrecy. or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to question which he need not have answered, whatever may have been the form of those question, or because he was not warned that he was bound to make such confession, and that the evidence of it might be given against him.

Section 30. Consideration of proved confession affecting person making it and others jointly under trail for same offence

When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

¹Explanation – “Offence” as used in this Section, includes the abutment of, r attempt to commit, the offence.

Illustrations

(a) A and B are jointly tried for the murder of C. It is proved that A said – “B and I murdered C”. the court may consider the effect of this confession as against B.

(b) A is on his trail for the murder of C. There is evidence to show that C was murdered by A and B, and that B said, “A and I murdered C”. The statement may not be taken into consideration by the Court against A as B is not being jointly tried.

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1. Ins. by Act 3 of 1891, sec. 4.

Section 31. Admissions not conclusive proof but may stop

Admissions are not conclusive proof of the matters admitted, but they may operate as estopples under the provisions hereinafter contained.

Statements by persons who cannot be called as witnesses

Section 32. Case in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases -

(1) When it relates to cause of death – When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

(2) Or is made in course of business – When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods securities or property of any kind; or of a document used in commerce written or signed by him or of the date of a letter or other document usually dated, written or signed by him.

(3) Or against interest of maker – When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true it would expose him or would have exposed him to criminal prosecution or to a suit for damages.

(4) Or gives opinion as to public right or custom, or matters of general interest – When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest of the existence of which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

(5) Or relates to existence of relationship – When the statement relates to the existence of any relationship ¹by blood, marriage or adoption between persons as to whose relationship ¹by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

(6) Or is made in will or deed relating to family affairs – When the statement relates to the existence of any relationship ¹by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

(7) Or in document relating to transaction mentioned in section 13, Clause (a). – When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a).

(8) Or is made by several persons and express feelings relevant to matter in question – When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Illustrations

(a) The question is, whether A was murdered by B ; or

A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or

The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.

Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.

(b) The question is as to the date of A’s birth. An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business, that, on a given day, the solicitor attended A at a place mentioned, in Calcutta , for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a deceased member of a merchant’s firm, by which she was chartered, to their correspondents in London to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.

(e) The question is, whether rent was paid to A for certain land. A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact.

(f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day, is relevant.

(h) The question is, what was the cause of the wreck of a ship. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(j) The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased banya in the ordinary course of his business is a relevant fact.

(k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact.

(l) The question is, what was the date of the birth of A. A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is, whether, and when, A and B were married. An entry in a memorandum-book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.

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1. Ins. by Act 18 of 1872, sec. 2.

Section 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated

Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a letter stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept our of the way by the adverse party or if his presence cannot be obtained without, an amount of delay of expense which, under the circumstances of the case, the Court considers unreasonable;

Provided -

That the proceeding was between the same parties or their representatives in interest;

That the adverse party in the first proceeding had the right and opportunity to cross examine;

That the questions in issue were substantially the same in the first as in the second proceeding.

Explanation – A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

Statements made under special circumstances

Section 34. [Entries in books of account including those maintained in an electronic form] when relevant

¹Entries in books of accounts including those maintained in an electronic form], regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.

Illustration

A sues B for Rs. 1,000, and shows entries in his account-books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the debt.

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1. Subs. by Act 21 of 2000, sec. 92 and Sch. II, for “Entries in the books of account” (w.e.f. 17-10-2000).

Section 35. Relevancy of entry in public [record or an electronic record] made in performance of duty

An entry in any public or other official book, register or ¹[record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or 1[record or an electronic record] is kept, is itself a relevant fact.

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1. Subs. by the Act 21 of 2000, sec. 92 and Sch. II, for “record” (w.e.f. 17-10-2000).

Section 36. Relevancy of statements in maps, charts and plans

Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of ¹the Central Government or any State Government, as to matters usually represented or stated in such maps, charts, or plans are themselves facts.

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1. Subs. by the A.O. 1948, for “any Government in British India.

Section 37 Notifications

When the Court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a recital contained in any Act of Parliament ¹[of the United Kingdom], or in any ²[Central Act, Provincial Act, or ³[a State Act], or in a Government notification or notification by the Crown Representative appearing in the Official Gazette or in any printed paper purporting to be the London Gazette or the Government Gazette of any Dominion, colony or possession of His Majesty is a relevant fact.]

⁴[***]

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1. Ins. by the A.O. 1950.

2. The original words were “Act of the Governor General of India in Council or of the Governors in Council of Madras or Bombay, or of the Lieutenant Governor in Council of Bengal, or in a notification of the Government appearing in the Gazette of India, or in the Gazette of any L.G. or in any printed paper purporting to be the London Gazette or the Government Gazette of any colony or possession of the Queen, is a relevant fact”. This was amended first by the Repealing and Amending Act, 1914 (10 of 1914) and then by the A.O. 1937, the A.O. 1948 and the A.O. 1950 to read as above.

3. Subs. by Act 3 of 1951 sec. 3 and Sch., for “an Act of the Legislature of Part A State or a Part C State”.

4. The last para added by Act 5 of 1899, sec. 2, and omitted by Act 10 of 1914, sec. 3 and Sch. II.

Section 38. Relevancy of statements as to any law contained in law books

When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant.

Section 39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers

¹[39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.—When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.]

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1. Subs. by Act 21 of 2000, sec. 92 and Sch. II, for section 39 (w.e.f. 17-10-2000).

Judgments of courts of justice, when relevant

Section 40. Previous judgments relevant to bar a second suit or trail

The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is, whether such Court ought to take cognizance of such suit or to hold such trail.

Section 41. Relevancy of certain judgments in probate etc., jurisdiction

A final judgment, order or decree of a Competent Court, in exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or to take away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing not as against any specified person but absolutely, is relevant when the existence of any legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof -

That any legal character which it confer accrued at the time when such judgment, order or decree come into operation;

That any legal character to which it declares and such person to be entitled, accrued to that person at the time when such judgment, ¹order or decree declares it to have accrued to that person;

That any legal character to which it takes away from any such person ceased at the time from which such judgment, ¹order or decree declared that it had cased or should cease.

And that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, ¹order or decree declares that it had been or should be his property.

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1. Ins. by Act 18 of 1872, sec. 3.

Section 42. Relevancy and effect of judgment, order or decrees, other than those mentioned in Section 41.

Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the inquiry; nut such judgments, orders or decrees are not conclusive proof of that which they state.

Illustrations

A sues B for trespass on his land, B alleges the existence of a public right of way over the land, which A denies.

The existence of a decree in favour of the defendant, in a suit by A against C or a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of ways exists.

Section 43. Judgment etc., other than those mentioned in Section 40 to 42 when relevant

udgments, orders or decrees other then those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant, under some other provision of this Act.

Illustrations

(a) A and B separately sue C for a libel which reflects upon each of them C in each case says that the matter alleged to libelous is true and the circumstances are such that it is probable true in each case, or in neither.

A obtains a decree against C for damages on the ground that C filed The Orient Tavern make out his justification. The fact is irrelevant as between B and C.

(b) A prosecutes B for adultery with C, A’s wife.

B denies that C is A’s wife, but the court convicts B of adultery.

Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime. CC says that she never was A’s wife.

The judgment against B is irrelevant as against C.

(c) A prosecuted B for stealing a cow, from him, B is convicted.

A, afterwards, sues C for cow. Which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.

(d) A has obtained a decree for the possession of land against A,C,B’s son murders A in consequence.

The existence of the judgment is relevant, as showing motive for a crime.

¹(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.

(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under Section 8 as showing the motive for the fact in issue.

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1. Ins. by Act 3 of 1891, sec. 5.

Section 44. Fraud or collusion in obtaining judgment, or incompetence of Court may be proved

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40,41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

Opinion of third persons, when relevant

Section 45. Opinions of experts

When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing ¹or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, ²or in questions as to identity of handwriting ¹or finger impressions, are relevant facts.

Such person called experts.

Illustrations

(a) The question is, whether the death of A was caused by poison.

The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.

(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.

The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.

The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant.

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1. Ins. by Act 5 of 1899, sec. 3. For discussion in Council as to whether “finger impressions” include “thumb impressions”, see Gazette of India, 1898, Pt. VI, p. 24.

2. Ins. by Act 18 of 1872, sec. 4.

Section 46. Facts bearing upon opinions of experts

Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinion of experts when such opinions are relevant.

Illustrations

(a) The question is, whether A was poisoned by a certain poison.

The fact that other persons who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.

(b) The question is, whether an obstruction to a harbour is caused by a certain seawall.

The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time is relevant.

Section 47. Opinions as to handwriting, when relevant

When the Court has to form an opinion as to the person by whom document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

Explanation – A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received document purporting to be written by that person in answer to documents written by himself to under his authority and addressed to that person, or when in the ordinary course of business document purporting to be written by that person have been habitually submitted to him.

Illustrations

The question is whether a given letter is in the handwriting of A, a merchant in London.

B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. G is B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s broker, to whom B habitually submitted thee letters purporting to be written by A for the purpose advising with him thereon.

The opinions of B,C and D on the question, whether the letter is in the handwriting of A, are relevant though neither B, C or D ever saw A, write.

Section 47A. Opinion as to digital signature when relevant

¹47A. Opinion as to digital signature when relevant.—When the Court has to form an opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.

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1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Section 48. Opinion as to existence of right or custom when relevant

When the Court has to form an opinion as to existence of any general custom or right, the opinions as to the existence of such custom or rights, of persons who would be likely to know of its existence if it existed, are relevant.

Explanation – The expression “general custom or right” includes customs or right common The Orient Tavern any considerable class of persons.

Illustrations

The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.

Section 49. Opinion as to usage’s, tenants, etc., when relevant

When the Court has to form an opinion as to -

the usage’s and tenants of any body of men or family,

the constitution and government of any religious or charitable foundation,

or

the meaning of words or terms used in particular districts or by particular classes of people,

the opinions of persons having special means of knowledge thereon, are relevant facts.

Section 50. Opinion on relationship, when relevant

When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).

Illustrations

(a) The question is, whether A and B were married.

The fact that they were usually received and treated by their friends as husband and wife, is relevant.

(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.

Section 51. Grounds of opinion when relevant

Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.

Illustration

An expert may give an account of experiments performed by him for the purpose of forming his opinion.

Character when relevant

Section 52. In civil cases character to prove conduct imputed irrelevant

In civil cases, the fact that the character of any person concerned is such as to render probable or improbably any conduct imputed to him, is irrelevant except in so far as such character appears from facts otherwise relevant.

Section 53. In criminal cases, previous good character relevant

In criminal proceedings the fact that the person accused is of good character, is relevant.

1[“53A. In a prosecution for an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.”.]

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1. Inserted by Section 53 of “The Criminal Law (Amendment) Act, 2013″

Section 54. Previous bad character not relevant except in reply

¹54. Previous bad character not relevant, except in reply.- In criminal proceedings the fact that the accused person had a bad character is irrelevant, unless evidence has been given that he has a character in which case it becomes relevant.

Explanation 1. – This section does not apply to cases in which the bad character of any person is itself a fact in issue.

Explanation 2. – A previous conviction is relevant as evidence of bad character.

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1. Subs. by Act 3 of 1891, sec. 6, for section 54.

Section 55. Character as affecting damages

In civil cases, the fact that the character of any person is such as to affect the amount of damages which he ought to receive is relevant.

Explanation – In Section 52,53,54 and 55, the word “character” includes both reputation and disposition; but ¹except as provided in Section 54, evidence may be given only a general reputation and general disposition and not of particular acts by which reputation or disposition was shown.

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1. Ins. by Act 3 of 1891, sec. 7.

Part II – ON PROOF

Chapter III – Facts which need not be proved

Section 56. Fact judicially noticeable need not be proved

No fact of which the Court will take judicial notice need be proved

Section 57. Facts of which Court must take judicial notice

The Court shall take judicial notice of the following facts;

¹1. All laws in force in the territory of India;

2. All public Acts passed or hereafter to be passed by Parliament ²of United Kingdom, and all local and personal Acts directed by Parliament ²of the United Kingdom to be judicially noticed;

3. Articles of War for ³the Indian Army, ⁴Navy of Air force;

⁵4. The course of proceeding of parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the Legislature established under any law for the time being in force in Province or in the States;

5. The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;

6. All seals of which English Courts take judicial notice; the seals of all the ⁶Courts in ⁷India and of all Courts out of ⁵India established by the authority of ⁸the Central Government or the Crown representative; the seals off Court of Admiralty and Maritime jurisdiction and of Notaries Public and all seals which any person is authorized to use by the ⁹Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in ⁷India;

7. The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any state, if the fact of their appointment to such office is notified in any ¹⁰official Gazette;

8. The existence, title and national flag of every State or Sovereign recognized by ¹¹the Government of India;

9. The divisions of time, the geographical divisions of the world, and public festivals, facts and holidays notified in the Official Gazette;

10. The territories under the dominion of ¹¹the Government of India;

11. The commencement, continuance and termination of hostilities between ¹¹the Government of India and any other State or body of persons;

12. The names of the members and officers of the Court, and of their deputies and subordinate officers and assistants and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;

13. The rule of the road, ¹²on land or at sea.

In all these cases, and also on all matters of public history, literature, science or art, the Court may report for its aid to appropriate books or documents of reference.

If the Court is called upon by any person to take judicial notice of any fact it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

———————

1. Subs. by the A.O. 1950, for para (1).

2. Ins. by the A.O. 1950.

3. Subs. by the A.O. 1950, for “Her Majesty’s”.

4. Subs. by Act 10 of 1927, sec. 25 and Sch. I, for “or Navy”.

5. Subs. by the A.O. 1950, for para 4.

6. Subs. by the A.O. 1948, for “Courts of British India”.

7. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.

8. Subs. by the A.O. 1937, for the “the G.G. or any L.G. in Council”.

9. Subs. by the A.O. 1950, “any Act of Parliament or other”.

10. Subs. by the A.O. 1937, for “the Gazette of India, or in the Official Gazette of any L.G.”.

11. Subs. by the A.O. 1950, for “the British Crown”.

12. Ins. by Act 18 of 1872, sec. 5.

Section 58. Facts admitted need not be proved

No fact need be proved in any proceeding, which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings;

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.

Chapter IV – Of oral evidence

Section 59. Proof of facts by oral evidence

All facts, except the ¹contents of documents, may be proved by oral evidence.

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1. Subs. by Act 21 of 2000, sec. 92 and Sch. II, for “contents of documents” (w.e.f. 17-10-2000).

Section 60. Oral evidence must be direct

Oral evidence must, in all cases, whatever, be direct; that is to say;

If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

If it refers to an opinions or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds -

Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.

Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

Chapter V – Of documentary evidence

Section 61. Proof of contents of documents

The contents of documents may be proved either by primary or by secondary evidence.

Section 62. Primary evidence

Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1. – Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterparts, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2. – Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

Illustration

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

Section 63. Secondary Evidence

Secondary evidence means and includes.

1. Certified copies given under the provisions hereinafter contained;

2. Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies;

3. Copies made from or compared with the original;

4. Counterparts of documents as against the parties who did not execute them;

5. Oral accounts of the contents of a document given by some person who has himself seen it.

Illustrations

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photo graph or machine copy of the original, is secondary evidence of the original.

———————–

1. See section 76 infra.

Section 64. Proof of documents by primary evidence

Documents must be proved by primary evidence except in the cases hereinafter mentioned.

Section 65. Cases in which secondary evidence relating to documents may be given

Secondary evidence may be given of the existence, condition or contents of a document in the following cases:

(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;

(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) When the original is of such a nature as not to be easily movable;

(e) When the original is a public document within the meaning of Section 74;

(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in ¹India to be given in evidence²;

(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collections.

In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

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1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.

2. Cf. the Bankers’ Books Evidence Act, 1891 (18 of 1891), section 4.

Section 65A. Special provisions as to evidence relating to electronic record

¹65A.Special provisions as to evidence relating to electronic record.- The contents of electronic records may be proved in accordance with the provisions of section 65B.

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1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Section 65B. Admissibility of electronic records

¹65B. Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,

all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.

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1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Section 66. Rules as to notice to produce

Secondary evidence of the contents of the documents referred to in Section 65, Clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, ¹or to his attorney or pleader such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case;

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:

1. When the document to be proved is itself a notice;

2. When from the nature of the case, the adverse party must know that he will be required to produce it;

3. When it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

4. When the adverse party or his agent has the original in Court;

5. When the adverse party or his agent has admitted the loss of the document;

6. When the person in possession of the document is out of reach, or not subject to, thee process of the Court.

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1. Ins. by Act 18 of 1872, sec. 6.

Section 67. Proof of signature and handwriting of person alleged to have signed or written document produced

If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his hand writing.

Section 67A. Proof as to digital signature

¹67A. Proof as to digital signature.- Except in the case of a secure digital signature, if the digital signature of any subscriber is alleged to have been affixed to an electronic record the fact that such digital signature is the digital signature of the subscriber must be proved.

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1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Section 68. Proof of execution of document required by law to be attested

If a document is required by law to be attested it shall not be sued as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to he process of the Court and capable of giving evidence:

¹Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act,1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specially denied.

——————

1. Ins. by Act 31 of 1926, sec. 2.

Section 69. Proof where no attesting witness found

If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.

Section 70. Admission of execution by party to attested document

The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

Section 71. Proof when attesting witness denies the execution

If the attesting witness denies or does not recollect the execution of the document its execution may be proved by other evidence.

Section 72. Proof of document not required by law to be attested

An attested document not required by law to be attested may be proved as if it was unattested.

Section 73. Comparison of signature, writing or seal with others admitted or proved

In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which s to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

¹This section applies also with any necessary modifications, to finger-impressions.

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1. Ins. by Act 5 of 1899, sec. 3.

Section 73A. Proof as to verification of digital signature

¹73A. Proof as to verification of digital signature.- In order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may direct—

(a) that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate;

(b) any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person.

Explanation.—For the purposes of this section, “Controller” means the Controller appointed under sub-section (1) of section 17 of the Information Technology Act, 2000.

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1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Public Documents

Section 74. Public documents

The following documents are public documents :—

(1) Documents forming the acts, or records of the acts—

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, ¹[of any part of India or of the Commonwealth], or of a foreign country;

(2) Public records kept ²[in any State] of private documents.

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1. The original words “whether of British India, or of any other part of Her Majesty’s dominions” have successively been amended by the A.O. 1948 and the A.O. 1950 to read as above.

2. Subs. by the A.O. 1950, for “in any province”.

Section 75. Private documents

All other documents are private.

Section 76. Certified copies of Public Documents

Every ¹public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.

Explanation

Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

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1. A Village-officer in the Punjab has been declared for the purposes of this Act to be a public officer having the custody of a public document—see the Punjab Land Revenue Act, 1887 (17 of 1887), section 151(2).

Section 77. Proof of documents by production of certified copies

Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

Section 78. Proof of other official documents

The following public documents may be proved as follows -

(1) Acts, orders or notifications of ¹the General Government in any of its departments, ²or of the Crown Representative or of any State Government or any department of any State Government.

By the records of the departments, certified by the heads of those departments respectively, or

By any document purporting to be printed by order of any such Government ²or as the case may be, of the Crown Representative;

(2) The proceedings of the Legislatures -

by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting The Orient Tavern be printed ³by order of the Government concerned;

(3) Proclamations, orders or regulations issued by ⁴Her Majesty or by the privy Council, or by any department of Her Majesty’s Government, By copies or extracts contained in the London Gazette, or purporting to be printed by the Queen’s Printer;

(4) The Acts of the Executive or the proceedings of the Legislature of a foreign country -

By journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some ⁵Central Act;

(5) The proceedings of a municipal body in a ⁶State, -

By a copy of such proceedings certified by the legal keeper thereof of by a printed book purporting to be published by the authority of such body,

(6) Public documents of any other class in a foreign country, -

by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or of ⁷an Indian consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original and upon proof of the character of the document according to the law of the foreign country.

STATE AMENDMENT

West Bengal

After section 78, insert the following section, namely:—

78A. Copies of public documents, to be as good as original documents in certain cases.—Notwithstanding anything contained in this Act or any other law for the time being in force, where any public documents concerning any areas within West Bengal have been kept in Pakistan, then copies of such public documents shall, on being authenticated in such manner as may be prescribed from time to time by the State Government by notification in the Official Gazette, be deemed to have taken the place of and to be, the original documents from which such copies were made and all references to the original documents shall be construed as including references to such copies.”

[Vide West Bengal Act 29 of 1955, sec. 3 (w.e.f. 6-10-1955) as amended by West Bengal Act 20 of 1960, sec. 3 (w.e.f. 5-1-1961)].

——————–

1. Subs. by the A.O. 1937, for “the Executive Government of British India”..

2. Ins. by the A.O. 1937.

3. Subs. by the A.O. 1937, for “by order of Government”.

4. The words “Her Majesty” stand unmodified see the A.O. 1950.

5. Subs. by the A.O. 1937, for “public Act of the Governor General of India in Council”.

6. Subs. by the A.O. 1950, for “a Province”.

7. Subs. by the A.O. 1950, for “a British Consul”.

Section 79. Presumption as to genuineness of certified copies

The Court shall presume ¹to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer ²of the Central Government or of a State Government, or by any officer ³in the State of Jammu and Kashmir who is duly authorized there to by the Central Government:

Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed, the official character which he claims in such paper.

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1. Ins. by the A.O. 1948.

2. The original word beginning from “in British India” and ending with the words “to be genuine” have been successively amended by the A.O. 1937, A.O. 1948 and A.O. 1950 to read as above.

3. Subs. by Act 3 of 1951, sec. 3 and Sch., for “in a Part B State”.

Section 80. Presumption as to documents produced as records of evidence

Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be statement or confession by any prisoner or accused person taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume -

that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.

Section 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents

The Court shall presume the genuineness of every document purporting to be the London Gazette, ¹or any official Gazette or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of private Act of Parliament ²of the United Kingdom printed by the Queen’s Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.

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1. Subs. by A.O. 1937, for “the Gazette of India or the Government Gazette of any L.G., or”.

2. Ins. by the A.O. 1950.

Section 81A. Presumption as to Gazettes in electronic forms

¹81A. Presumption as to Gazettes in electronic forms.- The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.

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1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Section 82. Presumption as to document admissible in England without proof of seal or signature

When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine and that the person signing it held at the time when he signed it, the judicial or official character which he claims;

and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.

Section 83. Presumption as to Maps or Plans made by authority of Government

The Court shall presume that maps or plans purporting to be made by the authority of ¹the Central Government or any State Government were so made, and are accurate, but maps or plans made for the purposes of any cause must be proved to be accurate.

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1. The original word “Government” has successively been amended by the A.O. 1937, A.O. 1948, Act 40 of 1949, A.O. 1950, to read as above.

Section 84. Presumption as to collections of laws and reports of decisions

The Court shall presume the genuineness of every book purporting to be printed and published under the authority of the Government of any country, and to contain any of the laws of that country;

and of every book purporting to contain reports of decisions of the Courts of such country.

Section 85. Presumption as to powers of attorney

The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, ¹[Indian] Consul or Vice-Consul, or representative ²[***] of the ³[Central Government], was so executed and authenticated.

———————–

1. Subs. by the A.O. 1950, for “British”.

2. The words “of Her Majesty, or” omitted by the A.O. 1950.

3. Subs. by the A.O. 1937, for “Government of India”.

Section 85A. Presumption as to electronic agreements

¹85A. Presumption as to electronic agreements.- The Court shall presume that every electronic record purporting to be an agreement containing the digital signatuers of the parties was so concluded by affixing the digital signature of the parties.

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1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Section 85B. Presumption as to electronic records and digital signatures

¹85B. Presumption as to electronic records and digital signatures.- (1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.

(2) In any proceedings, involving secure digital signature, the Court shall presume unless the contrary is proved that—

(a) the secure digital signature is affixed by subscriber with the intention of signing or approving the electronic record;

(b) except in the case of a secure electronic record or a secure digital signature, nothing in this section shall cerate any presumption, relating to authenticity and integrity of the electronic record or any digital signature.

———————–

1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Section 85C. Presumption as to Digital Signature Certificates

¹85C. Presumption as to Digital Signature Certificates.- The Court shall presume, unless contrary is proved, that the information listed in a Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verfied, if the certificate was accepted by the subscriber.

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1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Section 86. Presumption as to certified copies of foreign judicial records

The Court may presume that any document purporting to be a certified copy of any judicial record of ¹[²[***] any country not forming part of India] or of Her Majesty’s dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of ³[***] the ⁴[Central Government] ⁵[in or for] ⁶[such country] to be the manner commonly in use in ⁷[that country] for the certification of copies of judicial records.

⁸[An officer who, with respect to ⁹[***] any territory or place not forming part of ¹⁰[India or] Her Majesty’s dominions, is a Political Agent therefore, as defined in section 3, ¹¹[clause (43)], of the General Clauses Act, 1897 (10 of 1897), shall, for the purposes of this section, be deemed to be a representative of the ¹²[Central Government] ¹³[in and for the country] comprising that territory or place].

———————–

1. Subs. by A.O. 1950, for “any country not forming part”.

2. The words “a Part B State or of” omitted by Act 3 of 1951, sec. 3 and Sch.

3. The words “Her Majesty or of” omitted by the A.O. 1950.

4. Subs. by the A.O. 1937, for “Government of India”.

5. Subs. by Act 3 of 1891, sec 8, for “resident in”.

6. Subs. by Act 3 of 1951, sec. 3 and Sch., for “such Part B State or country”.

7. Subs. by Act 3 of 1951, sec. 3 and Sch., for “that State or country”.

8. Subs. by Act 5 of 1899, sec. 4, for the para added by Act 3 of 1891, sec. 3.

9. The words “a Part B State or” which were ins. by the A.O. 1950, omitted by Act 3 of 1951, sec. 3 and Sch.

10. Ins. by the A.O. 1950.

11. Subs. by the A.O. 1950, for “clause (40)”.

12. Subs. by the A.O. 1937, for “Government of India”.

13. Subs. by Act 3 of 1951, sec. 3 and Sch., for “in and for that Part B State or country”.

Section 87. Presumption as to Books, Maps and Charts

The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts, and which is produced for its inspection, was written and published by the person, and at the time and place, by whom or at which it purports to have been written or published.

Section 88. Presumption as to Telegraphic Messages

The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission.

Section 88A. Presumption as to electronic messages

¹88A. Presumption as to electronic messages.- The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

Explanation

For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.

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1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Section 89. Presumption as to due execution etc., of documents not produced

The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.

Section 90. Presumption as to documents thirty years old

Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Explanation

Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.

This Explanation applies also to section 81.

Illustrations

(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.

(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.

(c) A, a connection of B, produces deeds relating to lands in B’s possession, which were deposited with him by B for safe custody. The custody is proper.

STATE AMENDMENTS

Uttar Pradesh.—(a) Renumber section 90 as sub-section (1) thereof;

(b) in sub-section (1) as so renumbered, for the words “thirty years”, substitute the words “twenty years”;

(c) after sub-section (1) as so renumbered, insert the following sub-section, namely:—

“(2) Where any such document as is referred to in sub-section (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, the court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, it is that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to have been executed or attested”.

(d) After section 90, insert the following section, namely:—

“90A. (1) Where any registered document or a duly certified copy thereof or any certified copy of a document which is part of the record of a Court of Justice, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the original was executed by the person by whom it purports to have been executed.

(2) This presumption shall not be made in respect of any document which is the basis of a suit or of defence or is relied upon in the plaint or written statement.”

The Explanation to sub-section (1) of section 90 will also apply to this section;

[Vide Uttar Pradesh Act 24 of 1954, sec. 2 and Sch. (w.e.f. 30-11-1954).]

Section 90A. Presumption as to electronic records five years old

¹90A. Presumption as to electronic records five years old.- Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorised by him in this behalf.

Explanation

Electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.

This Explanation applies also to section 81A.

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1. Ins. by Act 21 of 2000, sec. 92 and Sch. II (w.e.f. 17-10-2000).

Chapter VI – Of the exclusion of oral by documentary evidence

Section 91. Evidence of terms of contracts, grant and other dispositions of property reduced to form of documents

When the terms of a contract, or of a grant, or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence¹ shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained.

Exception 1.

When a public officer is required by law to be appointed in writing, and when it is shown that any particular person had acted as such officer, the writing by which he is appointed need not be proved.

Exception 2.

Wills ²admitted to probate in ³India may be proved by the probate.

Explanation 1.

This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.

Explanation 2.

Where there are more originals than one, one original only need be proved.

Explanation 3.

The statement, in any document whatever of a fact other than the facts referred to in this section shall not preclude the admission of oral evidence as to the same fact.

Illustrations

(a) If a contract be contained in several letter, all the letters in which it is contained must be proved.

(b) If a contract is contained I a bill of exchange, the bill of exchange must be proved.

(c) If a bill of exchange is drawn in a set of three, one only need be proved.

(d) A contracts, in writing with B, for the delivery of indigo upon certain

terms. The contract mentioned the fact that B had paid A the price of other in contracted for verbally on another occasion.

Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible.

(e) A gives B a receipt for money paid by B.

Oral evidence is offered of the payment.

The evidence is admissible.

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1. Where, however, a criminal court finds that a confession or other statements of an accused person has not been recorded in the manner prescribed, evidence may be taken that the recorded statement was duly made see the Code of Criminal Procedure, 1973 (2 of 1974), section 463.

2. Subs. by Act 18 of 1872, sec. 7, for “under the Indian Succession Act”.

3. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.

Section 92. Exclusion of evidence of oral agreement

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:

Proviso (1)

Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, ¹[want or failure] of consideration, or mistake in fact or law:

Proviso (2)

The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:

Proviso (3)

The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved:

Proviso (4)

The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:

Proviso (5)

Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:

Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:

Proviso (6)

Any fact may be proved which shows in what manner the language of a document is related to existing facts.

Illustrations

(a) A policy of insurance is effected on goods “in ships from Calcutta to London”. The goods are shipped in a particular ship which is lost. The fact that that particular ship was orally excepted from the policy, cannot be proved.

(b) A agrees absolutely in writing to pay B Rs. 1,000 on the 1st March, 1873. The fact that, at the same time, an oral agreement was made that the money should not be paid till the thirty-first March, cannot be proved.

(c) An estate called “the Rampure tea estate” is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed, cannot be proved.

(d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B’s as to their value. This fact may be proved.

(e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.

(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.

(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words “Bought of A a horse for Rs. 500”. B may prove the verbal warranty.

(h) A hires lodgings of B, and gives B a card on which is written—“Rooms, Rs. 200 a month”. A may prove a verbal agreement that these terms were to include partial board.

A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an attorney, is made between them. It is silent on the subject of board. A may not prove that board was included in the term verbally.

(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount, A may prove this.

(j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B, who sues A upon it. A may show the circumstances under which it was delivered.

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1. Subs. by Act 18 of 1872, sec. 8, “for want of failure”.

Section 93. Exclusion of evidence to explain or amend ambiguous document

When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.

Illustrations

(a) A agrees, in writing, to sell a horse to B for “Rs. 1,000 or Rs. 1,500”.

Evidence cannot be given to show which price was to be given.

(b) A deed contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled.

Section 94. Exclusion of evidence against application of document of existing facts.

When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.

Illustrations

A sells to B, by deed “my estate at Rampur containing 100 bighas” . A has an estate at Rampur containing 100 bighas. Evidence may not be given of the fact that the estate meant to be sold was one situated at a different place and of a different size.

Section 95. Evidence as to document unmeaning in reference to existing facts.

When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.

Illustration

A sells to B, by deed “my house in Calcutta.”

A had not house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed.

These facts may be proved to show that the deed related to the house at Howrah.

Section 96. Evidence as to application of languages which can apply to one only of several persons

When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one of several persons or things evidence may be given of facts which show of those persons or things it was intended to apply to.

Illustrations

(a) A agrees to sell to B, for Rs.1,000 “my white horse”. A has two white horse. Evidence may be given of facts which show which of them was meant.

(b) A agrees to accompany B to Hyderabad. Evidence may be given of facts showing whether Hyderabad in the Deccan or Hyderabad in the Deccan or Hyderabad in Sind was meant.

Section 97. Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies

When the language used applies partly to one set of existing facts and, partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.

Illustration

A agrees to sell to B “my land to X in the occupation of Y.” A has land at X, but not in occupation of Y, and he has land in the occupation of Y, but it is not at X. Evidence may be given of facts showing which he meant to sell.

Section 98. Evidence as to meaning of illegible characters, etc.

Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local or provincial expressions, of abbreviations and of words used in a peculiar sense.

Illustration

A, a sculptor, agrees to sell to B, “all my moods” A has both models and modeling tools. Evidence may be given to show which he meant to sell.

Section 99. Who may give evidence of agreement varying term of document

Person who are not parties to document, or their representatives in interest may give evidence of any fact tending to show a contemporaneous agreement varying the terms of the document.

Illustration

A and B make a contract in writing that B shall sell certain cotton, to be paid for on delivery. At the same time they made an oral agreement that “three months” credit shall be given to A. This could not be shown as between A and B, but it might be shown by C if it affected by his interests.

Section 100. Saving of provisions of India Succession Act relating to Wills.

Nothing in this Chapter contained shall be taken to affect any of the provisions of the Succession Act (X of 1965) as to the construction to Wills.

Part III – PRODUCTION AND EFFECT OF EVIDENCE

Chapter VII – Of the burden of proof

Section 101. Burden of Proof

Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence to facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Illustration

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.

A must prove that B has committed the crime.

(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies to be true.

A must prove the existence of those facts.

Section 102. On whom burden of proof lies.

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Illustration

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father.

If no evidence were given on either side, B would be entitled to retain his possession.

Therefore, the burden of proof is on A.

(b) A sues B for money due on a bond.

The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.

If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved.

Therefore the burden of proof is on B.

Section 103. Burden of proof as to particular fact.

The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

Illustration

¹[(a)] A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.

B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.

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1. Sic. In the Act as published in Gazette of India, 1872, Pt. IV, p. 1, there is no illustration (b).

Section 104. Burden of proving fact to be proved to make evidence admissible

The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.

Illustrations

A wishes to prove a dying declaration by B.A must prove B’s death.

B wishes to prove, by secondary evidence, the contents of a lost document.

A must prove that the document has been lost.

Section 105. Burden of proving that case of accused comes within exceptions

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

Illustrations

(a) A, accused of murder, alleges that, by reason of unsoundness of mind,

he did not know the nature of the act.

The burden of proof is on A.

(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control.

The burden of proof is on A.

(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.

A is charged with voluntarily causing grievous hurt under section 325.

The burden of proving the circumstances bringing the case under section 335 lies on A.

Section 106. Burden of proving fact specially within knowledge

When any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had ticket is on him.

Section 107. Burden of proving death of person known to have been alive within thirty years.

When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

Section 108. Burden of proving that person is alive who has not been heard of for seven years.

¹Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is ²shifted to the person who affirms it.

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1. Subs. by Act 18 of 1872, sec. 9, for “When”.

2. Subs. by Act 18 of 1872, sec. 9, for “on”.

Section 109. Burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent

When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it.

Section 110. Burden of proof as to ownership

When the question is, whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

Section 111. Proof of good faith in transactions where one party is in relation of active confidence.

Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.

Illustrations

(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.

(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.

Section 111A. Presumption as to certain offences.

¹111A. Presumption as to certain offences.- (1) Where a person is accused of having committed any offence specified in sub-section (2), in-

(a) any area declared to be disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or

(b) any area in which there has been, over a period of more than one month, extensive disturbance of the public peace,

and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contary is shown, that such person had committed such offence.

(2) The offences referred to in sub-section (1) are the following, namely -

(a) an offence under section 121, section 121-A, section 122 or Section 123 of the Indian Penal Code (45 of 1860);

(b) criminal conspiracy or attempt to commit, or abatement of, an offence under section 122 or section 123 of the Indian Penal Code (45 of 1860).

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1. Ins. by Act 61 of 1984, sec. 20 (w.e.f. 14-7-1984).

Section 112. Birth during marriage, conclusive proof of legitimacy

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

Section 113. Proof of cession of territory

A notification in the Official Gazette that any portion of British territory has ¹before the commencement of Part III of the Government of India Act,1935, (26 Geo. 5 Ch. 2) been caddied to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification.

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1. Ins. by the A.O. 1937, (Pt. III of the Government of India Act, 1935 came into force on the 1st April, 1937).

Section 113A. Presumption as to abatement of suicide by a married women

¹113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a women had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation

For the purposes of this section, “cruelty” shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).

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1. Ins. by Act 46 of 1983, sec. 7.

Section 113B. Presumption as to dowry death

¹113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.

Explanation

For the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).

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1. Ins. by Act 43 of 1986, sec. 12 (w.e.f. 19-11-1986).

Section 114. Court may presume existence of certain facts

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustration

The Court may presume -

(a) That a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

(b) That an accomplice is unworthy of credit, unless he is corroborated in material particular;

(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;

(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;

(e) That judicial and official acts have been regularly performed;

(f) That the common course of business had been followed in particular cases;

(g) That evidence which could be and is not produced would, if produced be unfavorable to the person who withholds it;

(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavorable to him;

(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it -

As to illustration (a)—A shop-keeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;

As to illustration (b)—A, a person of the highest character, is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;

As to illustration (b)—A crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;

As to illustration (c)—A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was young and ignorant person, completely under A’s influence;

As to illustration (d)—It is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;

As to illustration (e)—A judicial act, the regularity of which is in question, was performed under exceptional circumstances;

As to illustration (f)—The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;

As to illustration (g)—A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;

As to illustration (h)—A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;

As to illustration (i)—A bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.

Section 114-A Presumption as to absence of consent in certain prosecutions for rape

1[‘114A. In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

1. — In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code.’.]

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1. Inserted by Section 114A of “The Criminal Law (Amendment) Act, 2013″

Chapter VIII – Estoppel

Section 115. Estoppel

When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

Illustration

A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.

The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.

Section 116. Estoppel of tenant and of license of person in possession -

No tenant of immovable property of person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and not person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person has a title to such possession at the time when such license was given.

Section 117. Estoppel of acceptor of bill of exchange, bailee or licensee

No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority of draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or license commenced, authority to make such bailment or grant such license.

Explanation (1)

The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.

Explanation (2)

If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor.

Chapter IX – Of witnesses

Section 118. Who may testify?

All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body and mind, or any other cause of the same kind.

Explanation

A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

Section 119. Dumb witnesses

1[“119. A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.”.]

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1. Inserted by Section 119 of “The Criminal Law (Amendment) Act, 2013″

Section 120.Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial

In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.

Section 121. Judges and Magistrates

No Judge or Magistrate shall, except upon the special order of some Court of which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to any thing which came to his knowledge in Court as such Judge or Magistrate but he may be examined as to other matters which occurred in his presence whilst he was so acting.

Illustrations

(a) A, on his trail before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer question as to this, except upon thee special order of a superior Court.

(b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B, cannot be asked what A said, except upon the special order of the superior Court.

(c) A is accused before the Court of Session of attempting to murder a police-officer whilst on his trail before B, a Session Judge. B may be examined as to what occurred.

Section 122. Communications during marriage

No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

Section 123. Evidence as to affairs of State

No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except wit the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

Section 124. Official communications

No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

Section 125. Information as to commission of offences

¹125. Information as to commission of offences.- No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.

Explanation

“Revenue officer” in this section means an officer employed in or about the business of any branch of the public revenue.

1. Subs. by Act 3 of 1887, sec. 1, for section 125.

Section 126. Professional communications

No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure—

(1) Any such communication made in furtherance of any ¹[illegal] purpose;

(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.

It is immaterial whether the attention of such barrister, ²[pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client.

Explanation

The obligation stated in this section continues after the employment has ceased.

Illustrations

(a) A, a client, says to B, an attorney—“I have committed forgery, and I wish you to defend me”.

As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.

(b) A, a client, says to B, an attorney—“I wish to obtain possession of property by the use of a forged deed on which I request you to sue”.

This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.

(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A’s account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.

This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.

———————-

1. Subs. by Act 18 of 1872, sec. 10, for “criminal”.

2. Ins. by Act 18 of 1872, sec. 10.

Section 127. Section 126 to apply to interpreters etc.

The provisions of Section 126 apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.

Section 128. Privilege not waived by volunteering evidence

If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126, and if any party to a suit or proceeding calls any such barrister, ¹pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.

———————–

1. Ins. by Act 18 of 1872, sec. 10.

Section 129. Confidential communication with Legal Advisers

No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness in which case he may be compelled to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has give, but not others.

Section 130. Production of title-deeds of witness, not a party

No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.

Section 131. Production of documents or electronic records which another person, having possession, could refuse to produce

¹131. Production of documents or electronic records which another person, having possession, could refuse to produce.- No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such last-mentioned person consents to their production.

———————–

1. Subs. by Act 21 of 2000, sec. 92 and Sch. II, for section 131 (w.e.f. 17-10-2000).

Section 132. Witness not excused from answering on ground that answer will criminate

A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:

Provison

Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

Section 133. Accomplice

An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Section 134. Number of witness

No particular number of witness shall in any case be required for the proof of any fact.

Chapter X – Of the examination of witnesses

Section 135. Order of production and examination of witness

The order in which witness are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law, by the discretion of the Court.

Section 136. Judge to decide as to admissibility of evidence

When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking.

If the relevancy of the alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved or acquire evidence to be given of the second fact before evidence is given of the first fact.

Illustrations

(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32.

The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.

(b) It is proposed to prove, by a copy, the contents of a document said to be lost.

The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.

(c) A is accused of receiving stolen property knowing it to have been stolen.

It is proposed to prove that he denied the possession of the property.

The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.

(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

Section 137. Examination-in-chief

The examination of a witness, by the party who calls him, shall be called his examination-in-chief.

Cross-examination

The examination of a witness by the adverse party shall be called his cross-examination.

Re-examination

The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

138. Order of examinations

Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts but the cross-examination need not to be confined to the facts which the witness testified on his examination-in-chief.

Direction of re-examination

The re-examination shall be directed to the explanation of matters referred to in cross-examination, and if new matter by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

Section 139. Cross-examination of person called to produce a document

A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examination, unless and until he is called as a witness.

Section 140. Witness to character

Witnesses to character may be cross-examined and re-examined.

Section 141. Leading questions

Any questions suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

Section 142. When they must not be asked

Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in re-examination, except with the permission of the Court.

The Court shall permit leading questions as to matters which are introductory or undisputed or which have, in its opinion, been already sufficiently proved.

Section 143. When they must be asked

Leading questions may be asked in cross-examination.

Section 144. Evidence as to matters in writing

Any witness may be asked whilst under examination, whether any contract, grant or other disposition of property as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.Explanation – A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.

Illustration

The question is, whether A assaulted B.

C deposes that he heard A, say to D – “B wrote a letter accusing me of theft, and I will be revenged on him. “This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

Section 145. Cross-examination as to previous statements in writing

¹145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matter in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

———————–

1. As to the application of section 145 to police-diaries, see the Code of Criminal Procedure, 1973 (2 of 1974), section 172.

Section 146. Questions lawful in cross-examination

1[“Provided that in a prosecution for an offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.”.]

———————–

1. Inserted by Section 146 of “The Criminal Law (Amendment) Act, 2013″

Section 147. When witness to be compelled to answer

If any such question relates to a matter relevant to the suit or proceeding, the provisions of Section 132 shall apply thereto.

Section 148. Court to decide when question shall be asked and when witness compelled to answer

If any such question relates to matter not relevant to the suit or proceeding, except in so far it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion the Court shall have regard to the following considerations;

(1) Such questions are proper if they are of such nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.

(2) Such questions are proper if they are of such nature that he truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.

(3) Such questions are improper if there is a great disproportion between the importance of the imputations made against the witness’s character and the importance of his evidence.

(4) The court may if it sees fit, draw from the witness’s refusal to answer, the in ference that the answer if given would be unfavorable.

Section 149. Question not to be asked without reasonable grounds

No such question as is referred to in Section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.

Illustration

(a) A barrister is instructed by an attorney or vakil that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait.

(b) A pleader is informed by a person in court that an important witness is a dakait. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a dakait.

(c) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living gives unsatisfactory answer. This may be a reasonable ground for asking him if he is a dakait.

(d) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living gives unsatisfactory answer. This may be a reasonable ground for asking him if he is a dakait.

Section 150. Procedure of Court in case of question being asked without reasonable grounds

If the court is of opinion that any such question asked was without reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney report the circumstances of the case to the High court or other authority to which barrister, pleader, vakil or attorney is subject in the exercise of his profession.

Section 151. Indecent and scandalous questions

The Court may forbid any question or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court unless they relate to fact in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.

Section 152. Question intended to insult or annoy

The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.

Section 153. Exclusion of evidence to contradict answer to questions testing veracity

When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him, but if he answers falsely, he may afterwards be charged with giving false evidence.

Exception 1

If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.

Exception 2

- If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.

Illustrations

(a) A claim against an underwriter is resisted on the ground of fraud.

The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it.

Evidence is offered to show that he did make such a claim.

The evidence is inadmissible.

(b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it.

Evidence is offered to show that he was dismissed for dishonesty.

The evidence is not admissible.

(c) A affirms that on a certain day he saw B at Lahore.

A is asked whether he himself was not on that day at Calcutta. He denies it.

Evidence is offered to show that A was on that day at Calcutta.

The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore.

In each of these cases the witness might, if his denial was false, be charged with giving false evidence.

(d) A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence.

He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.

Section 154. Question by party of his own witness

¹[(1)] The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.

²[(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.]

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1. Section 154 renumbered as sub-section (1) thereof by Act 2 of 2006, sec. 9 (w.e.f. 16-4-2006).

2. Ins. by Act 2 of 2006, sec. 9 (w.e.f. 16-4-2006).

Section 155. Impeaching credit of witness

The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him:—

(1) By the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;

(2) By proof that the witness has been bribed, or has ¹[accepted] the offer of a bribe, or has received any other corrupt inducement to give his evidence;

(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

²[***]

Explanation

A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.

Illustrations

(a) A sues B for the price of goods sold and delivered to B.

C says that he delivered the goods to B.

Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B.

The evidence is admissible.

(b) A is indicted for the murder of B.

C says the B, when dying, declared that A had given B the wound of which he died.

Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence.

The evidence is admissible.

————————

1. Subs. by Act 18 of 1872, sec. 11, for “had”.

2. Clause (4) omitted by Act 4 of 2003, sec. 3 (w.r.e.f. 31-12-2002). Clause (a), before omission, stood as under:

“(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character”.”

Section 156. Questions tending to corroborate evidence of relevant fact, admissible

When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fat which he testifies.

Illustration

A, an accomplice, gives an account of robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.

Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

Section 157. Former statements of witness may be proved to corroborate later testimony as to same fact

In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

Section 158. What matters may be proved in connection with proved statement relevant under Section 32 or 33

Whenever any statement relevant under Section 32 or 33 is proved, all matters may be proved either in order to contradict or to corroborate, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.

Section 159. Refreshing memory.

A witness may, while under examination refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.

The witness may also refer to any such writing made by any other person and read by the witness within time aforesaid, if when he read it he knew it to be correct

When witness may use copy of document to refresh his memory -

Whenever a witness may refresh his ness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document.

Provided the Court be satisfied that there is sufficient reason for the non-production of the original.

An expert may refresh his memory by reference to professional treatises.

Section 160. Testimony to facts stated in document mentioned in Section 159

A witness may also testify to facts mentioned in any such document as is mentioned in Section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.

Illustration

A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.

Section 161. Right of adverse party as to writing used to refresh memory

¹161. Right of adverse party as to writing used to refresh memory.- Any writing referred to under the provisions of the two last preceding Sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness there upon.

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1. As the application of section 161 to Police-Diaries, see the Code of Criminal Procedure, 1973 (2 of 1974), section 172.

Section 162. Production of document

A witness summoned to produce a document shall, if it is in his possession or power, bring it to the Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.

The Court, if it sees, fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.

Translation of documents

If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence : and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1860).

Section 163. Giving, as evidence, of document called for and produced on notice

When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

Section 164. Using, as evidence, of document, production of which was refused on notice

When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.

Illustration

A sues B on an agreement and gives B notice to produce it. At the trail, A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.

Section 165. Judge’s power to put questions or order production

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, The Orient Tavern cross-examine any witness upon any answer given in reply to any such question.

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.

Provided also that this Section shall not authorize an Judge to compel any witness to answer any question or produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.

Section 166. Power of jury or assessors to put questions

In cases tried by jury or with assessors, the jury or assessors may put any question to the witnesses, through or by leave of the Judge, which the judge himself might put and which he considers proper.

Chapter XI – Of improper admission and rejection of evidence

Section 167. No new trail for improper admission or rejection of evidence

This improper admission or rejection of evidence shall not be ground of itself for a new trail or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.

THE SCHEDULE -

(Enactment Repealed.) Rep. by the Repealing Act, 1938 (I of 1938), Section 2 and Schedule.

Delhi Rent Control Act

November 30, 2014

Preamble

(59 of 1958)

[31st December, 1958]

An Act to provide for the control of rents and evictions and of rates of hotels and lodging houses, and for the lease of vacant premises to Government, in certain areas in the Union territory of Delhi.

Be it enacted by Parliament in the Ninth Year of the Republic of India as follows:-

Introduction

Most of the persons living in urban areas are somehow directly or indirectly affected by the law of rent control which is provincial in nature and it differs from State to State, The law which was applicable to Delhi was Delhi and Ajmer Rent Control Act, 1952 (38 of 1952). During the course of its applicability many difficulties were being faced and it was considered necessary to enact a comprehensive law for Delhi. In order to achieve this objective the Delhi Rent Control Bill was introduced in the Parliament.

Act 59 of 1958

The Delhi Rent Control Bill having been passed by both the Houses of Parliament received the assent of the President on 31st December, 1958. It came into force on 9th February, 1959 as THE DELHI RENT CONTROL ACT, 1958 (59 of 1958).

List of Amending Acts

1. The Repealing and Amending Act, 1960 (58 of 1960).

2. The Delhi Rent Control (Amendment) Act, 1963 (4 of 1963).

3. The Delhi Rent Control (Amendment) Act, 1976 (18 of 1976).

4. The Delhi Rent Control (Amendment) Act, 1984 (37 of 1984).

5. The Delhi Rent Control (Amendment) Act, 1988 (57 of 1988).

Chapter I – Preliminary

Section 1. Short title, extent and commencement .

(1) This Act may be called the Delhi Rent Control Act, 1958.

(2) It extends to the areas included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the First Schedule:

Provided that the Central Government; may, by notification in the Official Gazette, extend this Act or any provision thereof, to any other urban area included within the limits of the Municipal Corporation of Delhi of exclude any are from the operation of this Act or any provision thereof.

(3) It shall come into force on such date (Note: Came into force on 9-2-1959, vide S.O. 269, dated 31st January, 1959, published in the Gazette of India, Pt. II, Sec.3 (ii), p.331) as the Central Government may, by notification in the Official Gazette, appoint. 

Section 2. Definitions.

In this Act, unless the context otherwise requires-

(a) “Basic rent”, in relation to premises let out before the 2nd day of June, 1944, means the basic rent of such premises as determined in accordance with the provisions of the Second Schedule;

(b) “Controller” means a Controller appointed under sub-section (1) of section 35 and includes an additional Controller appointed under sub-section (2) of that section;

(c) “Fair rate” means the fair rate fixed under section 31 and includes the rate as revised under section 32;

(d) “Hotel or lodging house” means a building or part of a building where lodging with or without board or other services is provided for a monetary consideration;

(e) “Landlord” means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent ro be entitled to receive the rent, if the premises were let to a tenant;

(f) “Lawful increase” means an increase in rent permitted under the provisions of this Act;

(g) “Manager of a hotel” includes any person in charge of the management of the hotel;

(h) “Owner of a lodging house” means a person who receives or is entitled to receive whether on this own account or on behalf of himself and others or as an agent or a trustee for any other person, any monetary consideration from any person on account of board, and lodging or other services provided in the lodging house;

(i) “premises” means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose, and includes.-

(i) the garden, grounds and outhouses, if any, appertaining to such building or part of the building;

(ii) any furniture supplied by the landlord for use in such building or par of the building; but does not include a room in a hotel or lodging house;

(j) “prescribed” means prescribed by rules made under this Act;

(k) “standard rent”, in relation to any premises, means the standard rent referred to in section 6 or where the standard rent has been increased under section 7, such increased rent;

[(l) (Note: Subs. by Act 18 of 1976, sec.2, for clause (1) (w.e.f. 1-12-1975)) “tenant” means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes-

(i) a sub-tenant;

(ii) any person continuing in possession after the termination of his tenancy; and

(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and to this clause, such of the aforesaid person’s-

(a) spouse,

(b) son or daughter, or, where there are both son and daughter, both of them,

(c ) parents,

(d) daughter-in-law, being the widow of his pre-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include,-

(A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re-opened under the proviso of section 3 of the Delhi Rent Control (Amendment) Act, 1976 (18 of 1976);

(B) any person to whom a licence, as defined by section 52 of the Indian Easements Act, 1882 (5 of 1882), has been granted.

Explanation1.- The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:-

(a) firstly, his surviving spouse;

(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death;

(c ) thirdly, his parents, if there is no surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death; and

(d) fourthly, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death.

Explanation II.- If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.

Explanation III.-For the removal of doubts, it is hereby declared that, -

(a) where, by reason of Explanation II, the right of any successor to continue in possession after the termination of the tenancy becomes extinguished, such extinguished shall not affect the right of any other succession of the same category to continue in possession after the termination of the tenancy; but if there is no other successor of the same category, the right to continue in possession after the termination of the tenancy shall not, on such extinguishments, pass on to any other successor, specified in any lower category or categories, as the case may be;

(b) the right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, develop on any of his heirs];

(m). “urban area” has the same meaning as in the Delhi Municipal Corporation Act, 1957 (66 of 1957).

Section 3. Act not to apply to certain premises.

Nothing in this Act shall apply -

(a) To any premises belonging to the Government; (Note: The word “or” omitted by Act 57 of 1988, sec.2 (w.e.f. 1-12-1988).

(b) To any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned, by the Government:

[(Note: Added by Act 4 of 1963, sec.2 (with retrospective effect) Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, notwithstanding any judgment, decree or order of any court or other authority, the provisions of this Act shall apply to such tenancy;]

[(c) (Note: Ins. by Act 37 of 1988, sec.2 (w.e.f. 1-12-1988) To any premises, whether residential or not, whose monthly rent exceeds there thousand and five hundred rupees; or

(d) To any premises constructed on or after the commencement of the Delhi Rent Control (Amendment) Act, 1988, for a period of ten years from the date of completion of such construction;]

Chapter II – Provisions Regarding Rent

Section 4. Rent in excess of standard rent not recoverable.

(1) Except where rent is liable to periodical increase by virtue of an agreement entered into before the 1st day of January, 1939, no tenant shall, notwithstanding any agreement to the contrary, be liable to pay to his landlord for the occupation of any premises any amount in excess of the standard rent of the premises, unless such amount is a lawful increase of the standard rent in accordance with the provisions of this Act.

(2) Subject to the provision of sub-section (1) any agreement for the payment of rent in excess of the standard rent shall be construed as if it were an agreement for the payment of the standard rent only.

Section 5. Unlawful changes not to be claimed or received.

(1) Subject to the provisions of this Act, no person shall claim or receive any rent in excess of the standard rent, notwithstanding any agreement to the contrary.

(2) No person shall, in consideration of the grant, renewal or continuance of a tenancy or sub-tenancy or sub-tenancy of any premises,-

(a) Claim or receive the payment of any sum as premium or pugree of claim or receive any consideration whatsoever, in cash or in kind, in addition to the rent; or

(b) Except with the previous permission of the Controller, claim or receive the payment of any sum exceeding one month’s rent of such premises as rent in advance.

(3) It shall not be lawful for the tenant or any other person acting or purporting to act on behalf of the tenant or a sub-tenant to claim or receive any payment in consideration of the relinquishment, transfer or assignment of his tenancy or sub-tenancy, as the case may be, of any premises.

(4) Nothing in this section shall apply-

(a) To any payment made in pursuance of an agreement entered into before the 1st day of January, 1939; or

(b) To any payment made under an agreement by any person to a landlord for the purpose of financing the construction of the whole or part of any premises on the land belonging to taken on lease by, the landlord, if one of the conditions of the agreement is that the landlord is to let to that person the whole or part of the premises when completed for the use of that person or any member of his family:

Provided that such payment does not exceed the amount of agreed rent for a period of five years of the whole or part of the premises to be let to such person.

Explanation. – For the purpose of clause (b) of this sub-section, “member of the family” of a person means, in the case of an undivided Hindu Family, any member of the family of that person and in the case of any other family, the husband, wife, son, daughter , father, mother, brother, sister or any other relative dependent on that person.

Section 6. Standard rent.

(1) Subject to the provisions of sub-section (2), “standard rent”, in relation to any premises means -

(A) In the case of residential premises-

(1) Where such premises have been let out at any time before the 2nd day of June,1944,-

(a) If the basic rent of such premises per annum does not exceed six hundred rupees, the basic rent; or

(b) If the basic rent of such premises per annum exceeds six hundred rupees, the basic rent together with ten per cent, of such basic rent;

(2) Where such premises have been let out at any time on or after the 2nd day of June, 1994,-

(a) In any case where the rent of such premises has been fixed under the Delhi and Ajmer- Merwara Rent Control Act, 1947 (19 of 1947), or the Delhi and Ajmer Rent Control Act, 1952 (37 of 1952),-

(i) If such rent per annum does not exceed twelve hundred rupees, the rent so fixed; or

(ii) If such rent per annum exceeds twelve hundred rupees, rent so fixed together with ten per cent. of such rent;

(b) In any other case, the rent calculated on the basis of [(Note: Subs. by Act 57 of 1988, sec.3, for “seven and one-half per cent.” (w.e.f. 1-12-1988) ten per cent]. per annum of the aggregate amount of the [(Note: Subs. by Act 57 of 1988, sec.3, for “reasonable” (w.e.f. 1-12-1988) actual] cost of construction and the market price of the land comprised in the premises on the date of the commencement of the construction :

(Note: Proviso omitted by Act 57 of 1988, sec.3 (w.e.f. 1-12-1988)

(B) In the case of premises other than residential premises-

(1) Where the premises have been let out at any time before the 2nd day of June, 1944, the basic rent of such premises together with ten per cent. of such basic rent:

Provided that where the rent so calculated exceeds twelve hundred rupees per annum, this clause shall have effect as if for the words “ten per cent.”, the words “fifteen per cent.” had been substituted;

(2) Where the premises have been let out at any time on or after the 2nd day of June, 1944,-

(a) In any case where the rent of such premises has been fixed under the Delhi and Ajmer-Merwara Rent Control Act, 1947 (19 of 1947) or the Delhi and Ajmer Rent Control Act, 1952 (38 of 1952),-

(i) If such rent per annum does not exceed twelve hundred rupees, the rent so fixed; or

(ii) If such rent per annum exceeds twelve hundred rupees, the rent so fixed together with fifteen per cent. of such rent;

(b) In any other case, the rent calculated on the basis of [(Note: Subs. by Act 57 of 1988, sec.3, for “seven and one-half per cent” (w.e.f. 1-12-1988) ten per cent] per annum of the aggregate amount of the [(Note: Subs. by Act 57 of 1988, sec.3, for “reasonable” (w.e.f. 1-12-1988) actual] cost of construction and the market price of the land comprised in the premises on the date of the commencement of the construction:

(Note: Proviso omitted by Act 57 of 1988, sec.3 (w.e.f. 1-12-1988)

(2) Notwithstanding anything contained in sub-section (1),-

(a) In the case of any premises, whether residential or not, constructed on or after the 2nd day of June, 1951, but before the 9th day of June, 1955, the annual rent calculated with reference to the rent at which the premises were let for the month of March, 1958, or if they were not so let, with reference, to the rent at which they were last let out, shall be deemed to be standard rent for a period of seven years from the date of the completion of the construction of such premises; (Note: The word “and” omitted by Act 57 of 1988, sec.3 (w.e.f. 1-12-1988)

(b) In the case of any premises, whether residential or no, constructed on or after the 9th day of June, 1955, including premises constructed after the commencement of this Act [(Note: Ins. by Act 57 of 1988, sec.3 (w.e.f. 1-12-1988) but before the commencement of the Delhi Rent Control (Amendment) Act, 1988], the annual rent calculated with reference to the rent agreed upon between the landlord and the tenant when such premises were first let out shall be deemed to be the standard rent for a period of five years from the date of such letting out.

[(c) (Note: Ins. by Act 57 of 1988, sec.3 (w.e.f. 1-12-1988) In the case of any premises, whether residential or not, constructed on or after the commencement of the Delhi Rent Control (Amendment) Act, 1988 and to which the provisions of this Act are made applicable by virtue of clauses

(d) of section 3, the rent calculated on the basis of ten per cent, per annum of the aggregate amount of the actual cost of construction of the premises and the market price of the land comprised in the premises on the date of commencement of the construction, of the premises shall be deemed to be the standard rent]

(3) For the purpose of this section, residential premises include premises let out for the purpose of a public hospital, an educational institution, a public library, reading room or an orphanage.

Section 6A. Revision of rent.

Notwithstanding anything contained in this Act, the standard rent, or, where no standard rent is fixed under the provisions of this Act in respect of any premises, the rent agreed upon between the landlord and the tenant, may be increased by ten per cent. every three years.

Section 7. Lawful increase of standard rent in certain cases and recovery of other charges.

(1) Where a landlord has at any time, before the commencement of this Act with or without the approval of the tenant or after the commencement of this Act with the written approval of the tenant or of the Controller, incurred expenditure for any improvement, addition or structural alteration in the premises, not being expenditure on decoration or tenantable repairs necessary or usual for such premises, and the cost of the improvement, addition or alteration has not been taken into account in determining the rent of the premises, the landlord may lawfully increase the standard rent per year by an amount not exceeding [(Subs. by Act 57 of 1988, sec.3, for “seven and one-half per cent.” (w.e.f. 1-12-1988) ten per cent.] of such cost.

(2) Where a landlord pays in respect of the premises any charge for electricity or water consumed in the premises or any other charge levied by a local authority having jurisdiction in the area which is ordinarily payable by the tenant, he may recover from the tenant the amount so paid by him; but the landlord shall not recover from the tenant whether by means of an increase in rent or otherwise the amount of any tax on building or land imposed in respect of the premises occupied by the tenant:

Provided that nothing in this sub-section shall affect the liability of any tenant under an agreement entered into before the 1st of January 1952, whether express or implied, to pay from time to time the amount of any such tax as aforesaid.

Section 8. Notice of increase of rent.

(1) Where a landlord wishes to increase the rent of any premises, he shall give the tenant notice of his intention to make the increase and in so far as such increase is lawful under this Act, it shall be due and recoverable only in respect of the period of the tenancy after the expiry of thirty days from the date on which the notice is given.

(2) Every notice under sub-section (1) shall be in writing signed by or on behalf of the landlord and given in the manner provided in section 106 of the Transfer of Property Act, 1982 (4 of 1882).

Section 9. Controller to fix standard rent, etc.

(1) The Controller shall, on an application made to him in this behalf, either by the landlord or by the tenant, in the prescribed manner, fix in respect of any premises-

(i) The standard rent referred to in section 6; or

(ii) The increase, if any, referred to in section7.

(2) In fixing the standard rent of any premises of the lawful increase thereof, the Controller shall fix an amount which appears to him to be reasonable having regard to the provisions of section 6 or section 7 and the circumstances of the case:

[(Note: Ins. by Act 57 of 1988, sec.6 (w.e.f. 1-12-1988) Provided that in working out the cost of construction of any premises or the market price of the land comprised in such premises for the purpose of section 6, or the cost of improvement, addition or alteration referred to in section 7, the Controller may take the assistance of any valuer approved by the Central Government in accordance with such rules as may be prescribed and the assessment shall be made by such valuer in the manner prescribed.]

(3) In fixing the standard rent of any premises part of which has been lawfully sub-let, the Controller may also fix the standard rent of the part sub-let.

(4) Where for any reason it is not possible to determine the standard rent of any premises on the principles set forth under section 6, the Controller may fix such rent as would be reasonable having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality, having regard also to the standard rent payable in respect of such premises.

(5) The standard rent shall in all cases be fixed for a tenancy of twelve months:

Provided that where any premises are let or re-let for a period of less than twelve months, the standard rent for such tenancy shall bear the same proportion to the annual standard rent as the period of tenancy bears to twelve months.

(6) In fixing the standard rent of any premises under this section, the Controller shall fix the standard rent thereof in an unfurnished state and may also determine an additional charge to be payable on account of any fittings or furniture supplied by the landlord and it shall be lawful for the landlord to recover such additional charge from the tenant.

(7) In fixing the standard rent of any premises under this section, the Controller shall specify a date from which the standard rent so fixed shall be deemed to have effect:

Provided that in no case the date so specified shall be earlier than one year prior of the date of the filing of the application for the fixation of the standard rent.

Section 10. Fixation of interim rent.

If an application for fixing the standard rent or for determining the lawful increase of such rent is made under section 9, the Controller shall, as expeditiously as possible, make an order specifying the amount of the rent or the lawful increase to be paid by the tenant to the landlord pending final decision on the application and shall appoint the date from which the rent or lawful increase so specified shall be deemed to have effect.

Section 11. Limitation of liability of middlemen.

No collector of rent or middleman shall be liable to pay to his principal, in respect of any premises, any sum by way of rental charges which exceeds, the amount which he is entitled under this Act to realize from the tenant or tenants of the premises.

Section 12. Limitation for application for fixation of standard rent.

Any landlord or tenant may file an application to the Controller for fixing the standard rent of the premises or for determining the lawful increase of such rent,-

(a) In the case of any premises which were let , or in which the cause of action for lawful increase of rent arose, before the commencement of this Act, within two years from such commencement;

(b) In the case of any premises let after the commencement of this Act [but before the commencement of the Delhi Rent Control (Amendment) Act, 1988],-

(i) Where the application is made by the landlord, within two years from the date on which the premises were let to the tenant against whom the application is made;

(ii) Where the application is made by the tenant, within two years from the date on which the premises were let to that tenant; [(Note: Clause (d) has been inserted by Act 57 of 1988, sec.7. As a result of this insertion the word “and” of the end of sub-clause (ii) of clause (b) ought to have been omitted and added at the end of clause (c), which has not been done by Act 57 of 1988. The irregularity has set right. (Ed.)) and]

(c) In the case of any premises in which the cause of action of lawful increase of rent arises after the commencement of this Act, within two years from the date on which the cause of action arises, [(Note: Clause (d) has been inserted by Act 57 of 1988, sec.7. As a result of this insertion the word “and” of the end of sub-clause (ii) of clause (b) ought to have been omitted and added at the end of clause (c), which has not been done by Act 57 of 1988. The irregularity has set right. (Ed.)) and]

[(d) (Note: Ins. by Act 57 of 1988, sec.7 (w.e.f. 1-12-1988) In the case of any premises referred to in clause © of sub-section (2) of section 6, within two years from the date of such application;]

Provided that the Controller may entertain the application after the expiry of the said period of two years, if he is satisfied that the applicant was prevented by sufficient cause from filing the application in time.

Section 13. Refund of rent, premium, etc., not recoverable under the Act.

Where any sum or other consideration has been paid , whether before or after the commencement of this Act, by or on behalf of a tenant to a landlord , in contravention of any of the provisions of this Act or of the Delhi and Ajmer Rent Control Act, 1952 (38 of 1952), the Controller may, on an application made to him within a period of one year from the date of such payment, order the landlord to refund such sum or the value of such consideration to the tenant or order adjustment of such sum or the value of such consideration against the rent payable by the tenant.

Chapter III – Control of Eviction of Tenants

Section 14. Protection of tenant against eviction.

(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenet:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-

(a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a landlord in the manner provided in section 106 of the Transfers of

Property Act, 1882 (4 of 1882);

(b) That the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise without obtaining the consent in writing of the landlord;

(c) That the tenant has used the premises for purpose other than that for which they were let-

(i) If the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord; or

(ii) If the premises have been let before the said date without obtaining his corisent;

(d) That the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof;

(e) That the premises let for residential purpose are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof , or for any person for whose benefit the premises are held and the landlord or such person has no other reasonably suitable residential accommodation;

Explanation.- For the purpose of this clause, “premises let for residential purpose” include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes;

(f) That the premises have become unsafe or unfit for human habitation and are required bona fide by the landlord for carrying out repairs which cannot be carried out without the premises being vacated;

(g) That the premises are required bona fide by the landlord for the purpose building or re-building or making thereto any substantial additions or alterations and that such building or re-building or addition or alteration cannot be carried out without the premises being vacated;

(h) That the tenant has, whether before or after the commencement of this Act, (Note: The word “built” omitted by Act 57 of 1988, sec.8 (w.e.f. 1-12-1988)) acquired vacant possession of, or been allotted, a residence;

[(hh) (Note: Ins. by Act 57 of 1988, sec.8 (w.e.f. 1-12-1988)) That the tenant has, after the commencement of the Delhi Rent Control (Amendment) Act, 1988, built a residence and ten years have elapsed there-after;]

(i) That the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment;

(j) That the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises;

(k) That the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate;

(i) That the landlord requires the premises in order to carry out any building work at the instance of the Government or the Delhi Development Authority or the Municipal Corporation of Delhi in pursuance of any improvement scheme or development scheme and that such building work cannot be carried out without the premises being vacated.

(2) No order for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1) if the tenant makes payment or deposit as required by section 15:

Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months.

(3) No order for the recovery of possession in any proceeding under sub-section (1) shall be binding on any sub-tenant referred to in section 17 who has given notice of his sub-tenancy to the landlord under the provisions of that section, unless the sub-tenant is made a party to the proceeding and the order for eviction is made binding on him.

(4) For the purpose of clause (b) of the proviso to sub-section (1), any premises which have been let for being used for the purpose of business or profession shall be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to the person.

(5) No application for the recovery of possession of any premises shall lie under sub-section (1) on the ground specified in clause (c ) of the proviso thereto, unless the landlord has given to the tenant a notice in the prescribed manner requiring him to stop the misuse of the premises and the tenant has refused or failed to comply with such requirement within one month of the date of service of the notice; and no order for eviction against the tenant shall be made in such a case, unless the Controller is satisfied that the misuse of the premises is of such a nature that it is a public nuisance or that it causes damage to the premises or is otherwise detrimental to the interest of the landlord.

(6) Where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall lie under sub-section (1), on the ground specified in clause (e ) of the proviso thereto, unless a period of five years have elapsed from the date of the acquisition.

(7) Where an order for the recovery of possession of any premises is made on the ground specified in clause(c ) of the proviso to sub-section (1), the landlord shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of the order.

(8) No order for the recovery or possession of any premises shall be made on the ground specified in clause (g) of the proviso to sub-section (1), unless the Controller is satisfied that the proposed reconstruction will not radically after the purpose for which the premises were let or such ramidically alteration is in the public interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary fund for the purpose are available with the landlord.

(9) No order for the recovery of possession of any premises shall be made on the ground specified in clause (I) of the proviso to sub-section (1), if the Controller is of opinion that there is any bona fide dispute as to whether the tenant has ceased to be in the service or employment of the landlord.

(10) No order for the recovery of possession of any premises shall be made on the ground specified in clause ,(i) of the proviso to sub-second (1) if the tenant, within such time as may be specified in this behalf by the Controller, carries out repairs to the damage caused to the satisfaction of the Controller or pays to the landlord such amount by way of compensation as the Controller may direct .

(11) No order for the recovery of possession of any premises shall be made on the ground specified in clause(k) of the proviso of sub-section (1), if the tenant, within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.

Section 14A. Right to recover immediate possession of premises to accrue to certain persons.

(1) Where a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required, by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order, to such landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him:

Provided that nothing in this section shall be construed as conferring a right on a landlord owning, in the Union territory of Delhi, two or more dwelling houses whether in his own name or in the name of his wife or dependent child to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which hi intends to recover.

(2) Notwithstanding anything contained elsewhere in this Act or in any there law for the time being in force or in any contract, custom or usage to the contrary, where the landlord exercises the right of recovery conferred on him by sub-section (1), no compensation shall be payable by him to the tenant or any person claiming through or under him and no claim for such compensation shall be entertained by any court, tribunal or other authority:

Provided that where the landlord had received,-

(a) any rent in advance from the tenant, he shall, within a period of ninety days from the date of recovery of possession of the premises by him, refund to the tenant such amount as represents the rent payable for the unexpired portion of the contract, agreement or lease;

(b) any other payment, he shall, within the period aforesaid, refund to the tenant a sum which shall bear the same proportion to the total amount received as the unexpired portion of the contract or agreement, or lease bears to the total period of contract or agreement or lease:

Provided further that, if any default is made in making any refund as aforesaid, the landlord shall be liable to pay simple interest at the rate of six per cent. per annum on the amount which he has omitted or failed to refund

Section 14B. Right to recover immediate possession of premises to accrue to members of the armed forces, etc.

(1) Where the landlord-

(a) is a released or retired person from any armed forces and the premises let out by him are required for his own residence; or

(b) is a dependent of a member of any armed forces who had been killed in action and the premises let out by such member are required for the residence of the family of such member, such person or, as the case may be, the dependant may, within one year from the date of his release or retirement from such armed forces or, as the case may be, the date of death of such member, or within a period of one year from the date of commencement of the Delhi Rent Control (Amendment) Act, 1988, whichever is later, apply to the Controller for recovering the immediate possession of such premises.

(2) Where the landlord is a member of any of the armed forces and has a period of less than one year preceding the date of his retirement and the premises let out by him are required for his own residence after his retirement, he may, at any time, within a period of one year before the date of his retirement, apply to the Controller for recovering the immediate possession of such premises.

(3) Where the landlord referred to in sub-section (1) or sub-section (2) has let out more than one premises, it shall be open to him to make an application under that sub-section in respect of only one of the premises chosen by him.

Explanation.-For the purpose of this section, “armed forces” means an armed force of the Union constituted under an Act of Parliament and includes a member of the police force constituted under section 3 of the Delhi Police Act, 1978 (34 of 1978).

Section 14C. Right to recover immediate possession of premises to accrue to Central Government and Delhi Administration employees.

(1) Where the landlord is a retired employee of the Central Government or of the Delhi Administration, and the premises let out by him are required for his own residence, such employee may, within one year from the date of his retirement or within a period of one year from the date of commencement of the Delhi Rent Control (Amendment) Act, 1988, whichever is later apply to the Controller for recovering the immediate possession of such premises.

(2) Where the landlord is an employee of the Central Government or of the Delhi Administration and has a period of less than one year preceding the date of his retirement and the premises let out by him are required by him for his own residence after his retirement, he may, at any time within a period of one year before the date of his retirement, apply to the Controller for recovering the immediate possession of such premises.

(3) Where the landlord referred to in sub-section (1) or sub-section (2) has let out more than one premises, it shall be open to him to make an application under that sub-section in respect of only one of the premises chosen by him.

Section 14D. Right to recover immediate possession of premises to accrue to a widow.

(1) Where the landlord is a widow and the premises let out by her, or by her husband, are required by her for her own residence, she may apply to the Controller for recovering the immediate possession of such premises.

(2) Where the landlord referred to in sub-section (1) has let out more than one premises, it shall be open to her to make an application under that sub-section in respect of any one of the premises chosen by her.

Section 15 When a tenant can get the benefit of protection against eviction.

Section 16. Restrictions on sub-letting.

(1) Where at any time before the 9th day of June, 1952, a tenant has sub-let the whole or any part of the premises and the sub-tenant is, at the commencement of this Act, in occupation of such premises, then notwithstanding that the consent of the landlord was not obtained for such sub-letting, the premises shall be deemed to have been lawfully sub-let.

(2) No premises which have been sub-let either in whole or in part on or after the 9th day of June, 1952,without obtaining the consent in writing of the landlord, shall be deemed to have been lawfully sub-let.

(3) After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord,-

(a) Sub-let the whole or any part of the premises held by him as a tenant; or

(b) transfer or assign his rights in the tenancy or in any part thereof.

(4) No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in kind for giving his consent to the sub-letting of the whole or any part of the premises held be the tenant.

Section 17. Notice of creation and termination of sub-tenancy.

(1) Whoever, after the commencement of this Act, any premises are sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the sub-tenant to whom the promises are sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within one month of the date of such sub-letting and notify the termination of such sub-tenancy within one month of such termination.

(2) Where, before the commencement of this Act, any premises have been lawfully sub-let either in whole or in part by the tenant, the tenant or the sub-tenant to whom the premises have been sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within six months of the commencement of this Act, and notify the termination of such sub-tenancy within one month of such termination.

(3) Where in any case mentioned in sub-section (2), the landlord contests that the premises were not lawfully sub-let, and an application is made to the Controller in this behalf, either by the landlord or by the sub-tenant, within two months of the date of the receipt of the notice of sub-letting by the landlord or the issue of this notice by the tenant or the sub-tenant, as the case may be, the Controller shall decide the dispute.

Section 18. Sub-tenant to be tenant in certain cases.

(1) Where an order for eviction in respect of any premises is made under section 14 against a tenant but not against a sub-tenant referred to in section 17 and a notice of the sub-tenancy has been given to the landlord, the sub-tenant shall, with effect from the date of the order, be deemed to become a tenant holding directly under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.

(2) Where, before the commencement of this Act, the interest of a tenant in respect of any premises has been determined without determining the interest of any sub-tenant to whom the premises has been determined without determining the interest of any sub-tenant to whom the premises either in whole or in part had been lawfully sub-let, the sub-tenant shall, with effect from the date of the commencement of this Act, be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord , if the tenancy had continued.

Section 19. Recovery of possession for occupation and re-entry.

(1) Where a landlord recovers possession of any premises from the tenant in pursuance of an order made under clause (c) of the proviso to sub-section (1) of section 14 [or under sections 14A, 14B, 14C, 148 and 21], the landlord shall not, except with the permission of the Controller, obtained in the prescribed manner, re-let the whole or any part of the premises within three years from the date of obtaining such possession, and in granting such permission, the Controller may direct the landlord to put such evicted tenant in possession of the premises.

(2) Where a landlord recovers possession of any premises as aforesaid and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, re-let to any person other than the evicted tenant without obtaining the permission of the Controller under sub-section (1) or the possession of such premises is transferred to another person for reasons which do not appear to the Controller to be bona fide, the Controller may, on an application made on him in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit.

Section 20. Recovery of possession for repairs and re-building and re-entry.

(1) In making any order on the grounds specified in clause (f) or clause (g) of the proviso to sub-section (1) of section 14, the Controller shall ascertain from the tenant whether he elects to be placed in occupation of the premises or part thereof from which he is to be evicted and if the tenant so elects, shall record the fact of the election in the order and specify therein the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs or building or re-building, as the case may be.

(2) If the tenant delivers possession on or before the date specified in the order, the landlord shall, on the completion of the work of repairs of building or re-building, place the tenant in occupation of the premises or part thereof.

(3) If, after the tenant has delivered possession on or before the date specified in the order, the landlord fails to commence the work of repairs or building or re-building within one month of the specified date or fails to complete the work in a reasonable time or having complete the work, fails to place the tenant in occupation of the premises in accordance with sub-section (2), the Controller may, on an application made to him in this behalf by the tenant within such time as may be prescribed, order the landlord to place the tenant in occupation of the premises or part thereof or to pay to the tenant such compensation as the Controller thinks fit.

Section 21. Recovery of possession in case of tenancies for limited period.

(1) Where a landlord does not require the whole or any part of any premises for a particular period, and the landlord, after obtaining the permission of the Controller in the prescribed manner, lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does not on the expiry of the said period, vacate such premises then, notwithstanding anything contained in section 14 or in any other law, the Controller may, on an application made to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premises or part thereof by evicting the tenant and every other person who may be in occupation of such premises.

(2) While making an order under sub-section (1), the Controller may award to the landlord such damages for the use or occupation of the premises at such damages for the use or occupation of the premises at such rates he considers proper in the circumstances of the case for the period from the date of such order till the date of actual vacation by the tenant.

Section 22. Special provision for recovery of possession in certain cases.

Where the landlord in respect of any premises is any company or other body corporate or any local authority or any public institution and the premises are required for the use of employees of such landlord or in the case of a public institution, for the furtherance activities, then, notwithstanding anything contained in section 14 or any other law, the Controller may, on an application made to him in his behalf by such landlord, place the landlord in vacant possession of such premises by evicting the tenant and every other person who may be in occupation thereof, if the Controller is satisfied -

(a) that the tenant to whom such premises were let for use as a residence at a time when he was in the service or employment of the landlord, has ceased to be in such service or employment; or

(b) that the tenant has acted in contravention of the terms, express or implied, under which he was authorised to occupy such premises; or

(c ) that any other person is in unauthorised occupation of such premises; or

(d) that the premises are required bona fide by the public institution for the furtherance of its activities.

Explanation.- For the purposes of this section, “public institution” includes any educational institution, library, hospital and charitable dispensary [but does not include any such institution set up by any private trust

Section 23. Permission to construct additional structures.

Where the landlord proposes to make any improvement in, or construct any additional structure on, any building which has been let to a tenant and the tenant refuses to allow the landlord to make such improvement or construct such additional structure and the Controller, on an application made to him in this behalf by the landlord, is satisfied that the landlord is ready and willing to commence the work and that such work will not cause any undue hardship to the tenant, the Controller may permit the landlord to do such work and may make such other order as he thinks fit in the circumstances of the case.

Section 24. Special provision regarding vacant building sites.

Notwithstanding anything contained in section 14, where any premises which have been let comprise vacant land upon which it is permissible under the building regulations or municipal bye-laws, for the time being in force, to erect any building , whether for use as a residence or for any other purpose and the landlord proposing to erect such building is unable to obtain possession of the land from the tenant by agreement with him and the Controller, on an application made to him in this behalf by the landlord, is satisfied that the landlord is ready and willing to commence the work and that severance of the vacant land from the rest of the premises will not cause undue hardship to the tenant, the Controller may-

(a) Direct severance;

(b) Place the landlord in possession of the vacant land;

(c) Determine the rent payable by the tenant in respect of the rest of the premises; and

(d) Make such other order as he thinks fit in the circumstances of the case.

Section 25. Vacant possession to landlord

Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such person there from:

Provided that nothing in this section shall apply to any person who has an independent title to such premises.

Chapter III – A – Summary Trial of Certain Applications

Section 25A.- Provisions of this Chapter to have overriding effect.

The provisions of this Chapter or any rule made there under shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force.

Section 25B – Special procedure for the disposal of applications for eviction on the ground of bona fide requirement.

(1) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A [or under section 14B or under section 14C or under section 14D] shall be dealt with in accordance with the procedure specified in this section.

(2) The Controller shall issue summons, in relation to every application referred to in sub-section (1), in the form specified in the Third Schedule.

(3) (a) The Controller shall, in addition to, and simultaneously with, the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgment due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may ,if the circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain .

(b) When an acknowledgement purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent had refused to take delivery of the registered article, the Controller may declare that there has been a valid service of summons.

(4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files and affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.

(5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (c) of the proviso to sub-section (1) of section 14, or under section 14A.

(6) Where leave is granted to the tenant to contest the application, the Controller shall commence the hearing of the application as early as practicable.

(7) Notwithstanding anything contained in sub-section (2) of section 37, the Controller shall, while holding and inquiry in a proceeding to which this Chapter applies, follow the practice and procedure of a Court of Small Causes, including the recording of evidence.

(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section:

Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.

(9) Where no application has been made to the High Court on revision, the Controller may exercise the powers of review in accordance with the provisions of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).

(10) Save as otherwise provided in this Chapter, the procedure for the disposal of an application for eviction on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A, shall be the same as the procedure for the disposal of applications by Controllers.

Section 25C – Act to have effect in a modified form in relation to certain persons.

(1) Nothing contained in sub-section (6) of section 14 shall apply to a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required by or in pursuance of, an order made by that Government or authority to vacate such residential accommodation, or, in default, to incur certain obligations, or the ground that the owns a residential accommodation either in his own name or in the name of his wife or dependent child in the Union territory of Delhi.

(2) In the case of a landlord whom, being a person of the category specified in sub-section (1) has obtained, on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A, an order for the eviction of a tenant from any premises, the provisions of sub-section (7) of section 14 shall have effect as if for the words “six months”, occurring therein, the words “two months” were substituted.

Chapter IV – Deposit of Rent

Section 26. Receipt to be given for rent paid.

(1) Every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable [and where any default occurs in the payment of rent, the tenant shall be liable to pay simple interest at the rate of fifteen per cent. per annum from the date on which such payment of rent is due to the date on which it is paid.

(2) Every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorised agent a written receipt for the amount paid to him., signed by the landlord or his authorised agent:

Provided that it shall be open to the tenant to remit the rent to his landlords by postal money order.

(3) If the landlord or his authorised agent refuses or neglects to deliver to the tenant a receipt referred to in sub-section (2), the Controller may, on an application made to him in this behalf by the tenant within two months from the date of payment and after hearing the landlord or his authorised agent, by order direct the landlord or his authorised agent to pay to the tenant, by way of damages, such sum not exceeding double the amount of rent paid by the tenant and the costs of the application and shall also grant a certificate to the tenant in respect of the rent paid.

Section 27. Deposit of rent by the tenant.

(1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in section 26 of refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner:

Provided that in case where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order.

(2) The deposit shall be accompanied by an application by the tenant containing the following particulars, namely:-

(a) the premises for which the rent is deposited with a description sufficient for identifying the premises;

(b) the period for which the rent is deposited;

(c) the name and address of the landlord or the person or persons claiming to be entitled to such rent;

(d) the reasons and circumstances for which the application for depositing the rent is made;

(e) such other particulars as may be prescribed.

(3) On such deposit of the rent being made, the Controller shall send in the prescribed manner a copy or copies of the application to the landlord or persons claiming to be entitled to the rent with an endorsement of the date of the deposit.

(4) If an application is made for the withdrawal of any deposit of rent, the Controller shall, if satisfied that the applicant is the person entitled to receive the rent deposited, order the amount of the rent to be paid to him in the manner prescribed:

Provided that no order for payment of any deposit of rent shall be made by the Controller under this sub-section without giving all persons named by he tenant in his application under sub-section (2) as claiming to be entitled to payment of such rent being decided by a court of competent jurisdiction.

(5) If at the time of filing the application under sub-section (4), but not after the expiry of thirty days from receiving the notice of deposit, the landlord or the person or persons claiming to be entitled to the rent complains or complain to the Controller that the statements in the tenant’s application of the reasons and circumstances which led him to deposit the rent are untrue, the Controller, after giving the tenant an opportunity of being heard, may levy on the tenant a fine which may extend to an amount equal to two months’ rent, if the Controller is satisfied that the said statements were materially untrue and may order that a sum out of the fine realised be paid to the landlord as compensation.

(6) The Controller may, on the complaint of the tenant and after giving an opportunity to the landlord of being heard, levy on the landlord a fine which may extend to an amount equal to two months’ rent, if the Controller is satisfied that the landlord, without any reasonable cause, refused to accept rent though tendered to him within the time referred to in section 26 and may further order that a sum out of the fine realised be paid to the tenant as compensation.

Section 28. Time limit of making deposit and consequences of incorrect particulars is application for deposit.

(1) No rent deposited under section 27 shall be considered to have been validly deposited under that section, unless the deposit is made within twenty-one days of the time referred to in section 26 for payment of the rent.

(2) No such deposit shall be considered to have been validly made, if the tenant willfully makes any false statement in his application for depositing the rent, unless the landlord has withdrawn the amount deposited before the date of filing an application for the recovery of possession of the premises from the tenant.

(3) If the rent is deposited within the time mentioned in sub-section (1) and does not cease to is valid deposit for the reason mentioned in sub-section (2), the deposit shall constitute payment of rent to the landlord, as if the amount deposited had been validly tendered.

Section 29. Saving as to acceptance of rent forfeiture of rent in deposit.

(1) The withdrawal of rent deposited under section 27 in the manner provided therein shall not operate as an admission against the person withdrawing it of the correctness of the rent, the period of default, the amount due, or of any other facts stated in the tenant’s application for depositing the rent under the said section.

(2) Any rent in deposit which is not withdrawn by the landlord or by the person or persons entitled to receive such rent shall be forfeited to Government by an order made by the Controller, if it is not withdrawn before the expiration of five years from the date of posting of the notice of deposit.

(3) Before passing as order of forfeiture the Controller shall give notice to the landlord or the person or persons entitled to receive the rent in deposit by registered post at the last known address of such landlord or person or persons and shall also publish the notice in his office and in any local newspaper.

Chapter V – Hotels and Lodging Houses

Section 30. Application of the Chapter.

The Provisions of this Chapter shall apply to all hotels and lodging houses in the areas which, immediately before the 7th day of April, 1958, were included in the New Delhi Municipal Committee, Municipal Committee, Delhi and the Notified Area Committee, Civil Station, Delhi and may be applied by the Central Government, by notification in the Official Gazette, to hotels and lodging houses within the limits of such other urban are of the Municipal Corporation of Delhi as may be specified in the notification:

Provided that if the Central Government is of opinion that it would not be desirable in the public interest to make the provisions of this Chapter applicable to any class of hotels or lodging houses, it may, by notification in the Official Gazette, exempt such class of hotels or lodging houses or lodging houses from the operation of this Chapter.

Section 31. Fixing of fair rate.

(1) Where the Controller, on a written complaint or otherwise, has reason to believe that the charges made for board or lodging or any other service provided in any hotel or lodging houses are excessive, he may fix a fair rate to be charged for board, lodging or other services provided in the hotel or lodging house and in fixing such fair rate, specified separately the rate for lodging, board or other services.

(2) In determining the fair rate under sub-section (1), the Controller shall have regard to the circumstances of the case and to the prevailing rate of charges for the same or similar accommodation, board and service, during the twelve months immediately preceding the 1st day of June, 1951, and to any general increase in the cost of living after that date.

Section 32. Revision of fair rate.

On a written application from the manager of a hotel or the owner of a lodging house or otherwise, the Controller may, from time to time, revise the fair rate to be charged for board, lodging or other service in a hotel or lodging house, and fix such rate as he may deem fit having regard to any general rise or fall in the cost of living which may have occurred after the fixing of fair rate.

Section 33. Charges in excess of fair rate not recoverable.

When the Controller has determined the fair rate of charges in respect of a hotel or lodging house, -

(a) The manager of the hotel or the owner of the lodging house, as the case may be, shall not charge any amount in excess of the fair rate and shall not, except with the previous written permission of the Controller, withdraw from the lodger any concession or service allowed at the time when the Controller determined the fair rate;

(b) Any agreement for the payment of any charges in excess of such fair rate shall be void in respect of such excess and shall be construed as if it were an agreement for payment of the said fair rate;

(c) Any sum paid by a lodger in excess of the fair rate shall be recoverable by him at any time within a period of six months from the date of the payment from the manager of the hotel or the owner of the lodging house or his legal representatives and may, without prejudice to any other mode of recovery, be deducted by such lodger from any amount payable by him to such manager or owner.

Section 34. Recovery of possession by manager or a hotel or the owner of a lodging house.

Notwithstanding anything contained in this Act, the manager of a hotel or the owner of a lodging house shall be entitled to recover possession of the accommodation provided by him to a lodger on obtaining a certificate from the Controller certifying-

(a) That the lodger has been guilty of conduct which is a nuisance or which caused annoyance to any adjoining or neighboring ledger;

Explanation.-For the purposes of this clauses, “nuisance” shall be deemed to include any act which constitutes an offence under the Suppression of Immoral Traffic in Women and Girls Act, 1956 (104 of 1956);

(b) That the accommodation is reasonably and bona fide required by the owner of the hotel or lodging house, as the case may be, either for his own occupation or for the occupation of any person for whose benefit the accommodation is held, or any other cause which may be deemed satisfactory to the Controller;

(c) That the lodger has failed to vacate the accommodation on the termination of the period of the agreement in respect thereof;

(d) That the lodger has done any act which in inconsistent with the purpose for which the accommodation was given to him or which is likely to affect adversely or substantially the owner’s interest therein;

(e) That the lodger has failed to pay the rent due from him.

Chapter VI – Appointment of Controllers and their power and functions and appeals

Section 35. Appointment of Controllers and Additional Controllers.

(1) The Central Government may, by notification in the Official Gazette, appoint as many Controllers as it thinks fit, and define the local limits within which, or the hotels and lodging houses in respect of which, each Controller shall exercise the powers conferred, and perform the duties imposed, on Controllers by or under this Act.

(2) The Central Government may also, by notification in the Official Gazette, appoint as many additional Controllers as it thinks fit and an additional Controller shall perform such of the functions of the Controller as may, subject to the control of the Central Government, be assigned to him in writing by the Controller and in the discharge of these functions, an additional Controller shall have and shall exercise the same powers and discharge the same duties as the Controller.

(3) A person not be qualified for appointment as a Controller or an additional Controller, unless he has for at least five years held a judicial office in India or has for at least seven years been practicing as an advocate or a pleader in India.

Section 36. Powers of Controller.

(1) the Controller may-

(a) Transfer any proceeding pending before him for disposal to any additional Controller, or

(b) Withdraw any proceeding pending before any additional Controller any dispose it of him or transfer the proceeding for disposal to any other additional Controller.

(2) The Controller shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following matters, namely:-

(a) Summoning and enforcing the attendance of any person and examining him on oath;

(b) Requiring the discovery and production of documents;

(c) Issuing commissions for the examination of witnesses;

(d) Any other matter which may be prescribed,

And any proceeding before the Controller shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860), and the Controller shall be deemed to be a civil court within the meaning of section 480 and section 482 of the Code of Criminal Procedure, 1898 (5 of 1898).

(3) For the purposes of holding any inquiry or discharging any duty under this Act, the Controller may,-

(a) After giving not less than twenty-four hours’ notice in writing, enter and inspect or authorise any officer subordinate to him to enter and inspect any premises at any time between sunrise and sunset; or

(b) By written order, require any person to produce for his inspection all such accounts, book or other documents relevant to the inquiry at such time and at such place as may be specified in the order.

(4) The Controller may, if he thinks fit, appoint one or more person having special knowledge of the matter under consideration as an assessor or assessors to advise him in the proceeding before him.

Section 37. Procedure to be followed by Controller.

(1) No order which prejudicially affects any person shall be made by the Controller under this Act without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objection, if any, and any evidence he may produce in support of the same have been considered by the Controller.

(2) Subject to any rules that may be made under this Act, the Controller, shall, while holding an inquiry in any proceeding before him, follow as far as may be the practice and procedure of a Court of Small Causes, including the recording of evidence.

(3) In all proceedings before him, the Controller shall consider the question of costs and award such costs to or against any party as the Controller considers reasonable.

Section 38. Appeal to the Tribunal.

(1) An appeal shall lie from every order of the Controller made under this Act [only on questions of law] to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette:

Provided that no appeal shall lie from an order of the Controller made under section 21.

(2) An appeal under sub-section (1) shall be preferred within thirty days from the date of the order made by the Controller:

Provided that the Tribunal may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(3) The Tribunal shall have all the power vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when hearing an appeal.

(4) Without prejudice to the provisions of sub-section (3), the Tribunal may, on an application made to it or otherwise, by order transfer any proceeding pending before any Controller or additional Controller to another Controller or additional Controller and the Controller or additional Controller to whom the proceeding is so transferred may, subject to any special directions in the order of transfer, dispose of the proceeding.

(5) A person shall not be qualified for appointment to the Tribunal, unless he is, or has been a district judge or has for at least ten years held a judicial office in India.

Section 38A. Additional Rent Control Tribunals.

(1) For the expeditious disposal of appeals and applications under section 38, the Central Government may, by notification in the Official Gazette, constitute as many Additional Rent Control Tribunals as it deem fit and appoint to each such Additional Rent Control Tribunal (hereinafter referred to as the Additional Tribunal) on person qualified for appointment to the Tribunal in accordance with the provisions of sub-section (5) of that section.

(2) Notwithstanding anything contained in section 38, the Tribunal, may, by

order in writing, -

(a) Specify the appeals or classes of appeals under sub-section (1) of that section which may be preferred to an disposed of by each Additional Tribunal and the classes of cases in which each Additional Tribunal may exercise the powers of the Tribunal under sub-section (4) of that section;

(b) Transfer any appeal or proceeding pending before it for disposal to, any Additional Tribunal; or

(c) Withdraw any appeal or proceeding pending before any Additional Tribunal and dispose it of itself or transfer the appeal or proceeding for disposal to any other Additional Tribunal.

(3) The Provisions of sub-section (2) and (3) of section 38 shall apply in relation to an Additional Tribunal as they apply in relation to the Tribunal.

Section 38B. Power of High Court to transfer appeals, etc.

The High Court may also, on an application made to it or otherwise, by order, transfer -

(a) any appeal or proceeding pending before the Tribunal to any Additional Tribunal; or

(b) any appeal or proceeding pending before any Additional Tribunal to the Tribunal or in any other Additional Tribunal.

Section 39. Section 39 omitted by Act 57 of 1988, sec.17 (w.e.f. 1-12-1988).

39. Section 39 omitted by Act 57 of 1988, sec.17 (w.e.f. 1-12-1988).

Section 40. Amendment of orders.

Clerical or arithmetical mistakes in any order passed by a Controller or [the Tribunal or an Additional Tribunal] or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Controller or [the Tribunal on an Additional Tribunal] on am application received in this behalf from any of the parties or otherwise.

Section 41. Controller to exercise powers of a magistrate for recovery of fine.

Any fine imposed by a Controller under this Act shall be paid by the person find witnessed such time as may be the Controller and the Controller may, for good and sufficient reason, extend the time, and in default of such payment, the amount shall be recoverable as a fine under the provisions of the Code of Criminal Procedure, 1898, and the Controller shall be deemed to be a magistrate under the said code for the purposes of such recovery.

Section 42. Controller to exercise powers of civil court for execution of other orders.

Save as otherwise provided in section 41, an order made by the Controller or an order passed on appeal under this Act shall be executable by the Controller as a decree of a civil court and for this purpose, the Controller shall have all the powers of a civil court.

Section 43. Finality of order.

Save as otherwise expressly provided in this Act, every order made by the Controller or an order passed on appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding.

Chapter VII – Provisions regarding special obligations of Landlords and Penalties

Section 44. Landlords duty to keep the premises in good repair.

(1) Every landlord shall be bound to keep the premises in good and tenantable repairs.

(2) If the landlord neglects or fails to make, within a reasonable time after notice in writing, any repairs which he is bound to make under sub-section (1) the tenant may make the same himself and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord:

Provided that the amount sod deducted or recoverable in any year shall not exceed one-twelfth of the rent payable by the tenant for that year.

(3) Where any repairs without which the premises are not habitable or usable except with undue inconvenience are to be made and the landlord neglects or fails to make them after notice in writing, the tenant may apply to the Controller for permission to make such repairs himself and may submit to the Controller an estimate of the cost of such repairs, and, thereupon, the Controller may, after giving the landlord an opportunity of being heard and after considering such estimate of the cost and making such inquires as he may consider necessary, by an order in writing, permit the tenant to make such repairs at such cost as may be specified in the order and it shall thereafter be lawful for the tenant to make such repairs himself and to deduct the cost thereof, which shall in no case exceed the amount so specified, from the rent or otherwise recover it from the landlord:

Provided that the amount so deducted or recoverable in any year shall not exceed one-half of the rent payable by the tenant for that year:

Provided further that if any repairs not covered by the said amount are necessary in the opinion of the Controller, and the tenant agrees to bear the excess cost himself., the Controller may permit the tenant to make such repairs.

Section 45. Cutting off or withholding essential supply or service.

(1) No landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him.

(2) If a landlord contravenes the provisions of sub-section (1), the tenant may make an application to the Controller complaining of such contravention.

(3) If the Controller is satisfied that essential supply or service was cut off or withheld by the landlord with a view to compel the tenant to vacate the premises or to pay an enhanced rent, the Controller may pass an order directing the landlord to restore the amenities immediately, pending the inquiry referred to in sub-section (4).

Explanation.-An interim order may be passed under this sub-section without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him.

(2) If a landlord contravenes the provisions of sub-section (1), the tenant may make an application to the Controller complaining of such contravention.

(3) If the Controller is satisfied that essential supply or service was cut off or withheld by the landlord with a view to compel the tenant to vacate the premises or to pay an enhanced rent, the Controller may pass an order directing the landlord to restore the amenities immediately, pending the inquiry referred to in sub-section (4).

Explanation.-An interim order may be passed under this sub-section without giving notice to the landlord.

(4) If the Controller on inquiry finds that the essential supply or service enjoyed by the tenant in respect of the premises was cut off or withheld by the landlord without just and sufficient cause, he shall make an order directing the landlord to restore such supply or service.

(5) The Controller may in his discretion direct that compensation not exceeding fifty rupees-

(a) be paid to the landlord by the tenant, if the application under sub-section (2) was made frivolously or vexatiously;

(b) be paid to the tenant by the landlord, if the landlord had cut off or withheld the supply or service without just and sufficient cause.

Explanation 1.-In this section “essential supply or service” includes supply of water , electricity, lights in passages and on staircases, conservancy and sanitary services.

Explanation II.-For the purposes of this section, withholding any essential supply or service shall include acts or omissions attributable to the landlord of account of which the essential supply or service is cut off by the local authority or any order competent authority.

Section 46. Landlord’s duty to give notice of new construction to Government.

Whenever, after the commencement of this Act, any premises are constructed, the landlord shall, within thirty days of the completion of such construction, give intimation thereof in writing to the [Director of Estates] or to such other officer as may be specified in this behalf by the Government.

Section 47. Leases of vacant premises to Government.

(1) The provisions of this section shall apply only in relation to premises in the areas which, immediately before the 7th day of April, 1958, were included in the New Delhi Municipal Committee and which are, or are intended to be, let for use as a residence.

(2) Whenever any premises the standard rent of which is not less than two thousand and four hundred rupees per year becomes vacant either by the landlord ceasing to occupy the premises or by the termination of a tenancy or by the eviction of a tenant or by the release of the premises from requisition or otherwise,-

(a) the landlord shall, within seven days of the premises becoming vacant, give intimation thereof in writing to the [Director of Estate];

(b) whether or not such intimation is given, the [Director of Estates] may serve on the landlord by post or otherwise a notice-

(i) informing him that the premises are required by the Government for such period as may be specified in the notice; and

(ii) requiring him, and every person claiming under him, to deliver possession of the premises forthwith to such officer or person as may be specified in the notice:

Provided that where the landlord has given the intimations required by clause (a), no notice shall be issued by the Director of Estates] under clause (b) more than seven days after the delivery to him of the intimation:

Provided further that nothing in this sub- section shall apply in respect of any premises the possession of which has been obtained by the landlord on the basis of any order made on the ground set forth in clause (e) of the proviso to sub-section (1) of section 14 or in respect of any premises which have been released from requisition for the use and occupation of the landlord himself.

(3) Upon the service of a notice under clause (b) of sub-section (2), the premises shall be deemed to have been leased to the Government for the period specified in the notice, as from the date of the delivery of the intimation under clause (a) of sub-section (2) or in case where no such intimation has been given, as from the date on which possession of the premises in delivered in pursuance of the notice, and the other terms of the lease shall be such as may be agreed upon between the Government and the landlord or in default of agreement, as may be determined by the Controller, in accordance with the provisions of this Act.

(4) In every case where the landlord has in accordance with the provisions of sub-section (2) given intimation of any premises becoming vacant and the premises are not taken on lease by the Government under this section, the Government shall pay to the landlord a sum equal to one-fifty second of the standard rent per year of the premises.

(5) Any premises taken of lease by the Government under this section may be put to any such use as the Government thinks fit, and in particulars, the Government may permit the use of the premises for the purposes of any public institution or any foreign embassy, legation or consulate or any High Commissioner or Trade Commissioner, or as a residence by any officer in the service of the Government or of a foreign embassy, legation or consulate or of a High Commissioner or Trade Commissioner.

Section 48. Penalties.

(1) If any person contravenes any of the provisions of section 5, he shall be punishable -

(a) In the case of a contravention of the provisions of sub-section (1) of section 5, with simple imprisonment for a term which may extend to three months, or with fine which may extend to a sum which exceeds the unlawful charge claimed or received under sub-section by one thousand rupees, or with both;

(b) In the case of a contravention of the provisions of sub-section (2) or sub-section (3) of section 5, with simple imprisonment for a term which may extend to six months, or with fine which may extend to a sum which exceeds the amount or value or unlawful charge claimed or received under the said sub-section (2) or sub-section (3), as the case may be, by five thousand rupees, or with both.

(2) If any tenant sub-lets; assigns or otherwise parts with the possession of the whole or part of any premises in contravention of the provisions of clause (b) of the proviso to sub-section (1) of section 14, he shall be punishable with fine which may extend to one thousand rupees.

(3) If any landlord re-lets or transfers the whole or any part of any premises in contravention of the provisions of sub-section (1) or sub-section (2) of section 19 he shall be punishable with imprisonment for a term which may extend to six months , or with fine, or with both.

(4) If any landlord contravenes the provisions of sub-section (1) of section 45, he shall be punishable with imprisonment for a term which may extend to three months or with fine, or with both.

(5) If any landlord fails to comply with provisions of section 46 he shall be punishable with fine which may extend to one hundred rupees.

(6) If any person contravenes the provisions of clause (a) of sub-section (2) of section 47, or fails to comply with a requirement under clause (b) thereof, he shall be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

Section 49. Cognizance of offences.

(1) No court inferior to that of [Metropolitan Magistrate] shall try any offence punishable under this Act.

(2) No court shall take cognizance of an offences punishable under this Act, unless the complaint in respect of the offences has been made within three months from the date of the offence has been made within three months from the date of the commission of the offence.

(3) Notwithstanding anything contained in [section 29 of the Code of Criminal Procedure, 1973 (2 of 1974)] it shall be lawful for any [Metropolitan Magistrate] to pass a sentence of fine exceeding [five thousand rupees] on a person convicted of an offence punishable under this Act.

Chapter VIII – Miscellaneous

Section 50. Jurisdiction of civil courts barred in respect of certain matters

(1) Save a otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.

(2) If, immediately before the commencement of this Act, there is any suit or proceeding pending in any civil court for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 19951, but before the 9th day of June, 1955, such suit or proceeding shall, on such commencement , abate.

(3) If, in pursuance of any decree or order made by a court, any tenant has been evicted after the 16th day of August, 1958, from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, then, notwithstanding anything contained in any other law, the Controller may, on an application made to him in this behalf by such evicted tenant within six months from the date of eviction, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit.

(4) Nothing in sub-section (1) shall be construed as prevailing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises.

Section 51. Controllers to be public servants.

All Controllers and additional Controllers appointed under this Act shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

Section 52. Protection of action taken in good faith.

No suit, prosecution or other legal proceeding shall lie against any Controller or additional Controller in respect of anything which is in good faith done or intended to be done in pursuance of this Act.

Section 53. Amendment of the Delhi Tenants Temporary Protection Act, 1956.

53. Amendment of the Delhi Tenants Temporary Protection Act, 1956. – [Rep.]

Section 54. Saving of operation of certain enactments.

Nothing in this Act shall affect the provisions of the Administration of Evacuee Property Act, 1950 (31 of 1950), or the Slum Areas (Improvement and Clearance ) Act, 1956 (96 of 1956), or the Delhi Tenants (Temporary Protection ) Act, 1956 (97 of 1956).

Section 55. Special provisions regarding decrees affected by the Delhi Tenants (Temporary Protection ) Act, 1956.

Where any decree or order for the recovery of possession of any premises to this the Delhi Tenants (Temporary Protection) Act, 1956 (97 of 1956), applies is sought to be executed on the censer of operation of that Act in relation to those premises, the court executing the decree of order may, on the application of the person against whom the decree or order has been passed or otherwise, reopen the case and if it is satisfied that the decree or order could not have been passed if this Act had been in force on the date of decree or order, the court may, having regard to the provisions of this Act, set aside the decree or order or pass such other order in relation thereto as it thinks fit.

Section 56. Power to makes rules.

(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) The manner of approval of valuers and procedure to be followed by such valuers under the proviso to sub-section (2) of section 9;

(aa) The form and manner in which, and the period within which, an application may be made to the Controller;

(b) The form and manner in which an application for deposit or rent may be made and the particulars which it may contain;

(c) The manner in which a Controller may hold an inquiry under this Act;

(d) The powers of the civil court which may be vested in a Controller;

(e) The form and manner in which an application for appeal or transfer of proceeding may be made to the Tribunal

(g) Any other matter which has to be, or may be, prescribed.

(3) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one sessions or in two or more successive session, and if, before the expiry of the session immediately following the session or the successive session aforesaid, both Houses agree in making any modification in the rule or both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so; however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Section 57. Repeal and saving.

(1) The Delhi and Ajmer Rent Control Act, 1952 (38 of 1952) in so far as it is applicable to the Union territory of Delhi, is hereby repealed.

(2) Notwithstanding such repeal, all suits and other proceedings under the said Act pending, at the commencement of this Act, before any court or other authority shall be continued and disposed of in accordance with the provisions of the said Act, as if the said Act had continued in force and this Act had not been passed:

Provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which section 54 does not apply, the court or other authority shall have regard to the provisions of this Act:

Provided further that the provisions for appeal under the said Act shall continue in force in respect of suits and proceedings disposed of there under.

The First Schedule

The urban areas within the limits of the Municipal Corporation of Delhi to which the Act extends

The areas which, immediately before the 7th April, 1958, were included in -

1. the Municipality of New Delhi excluding the are specified in the First Schedule to the Delhi Municipal Corporation Act, 1957 (66 of 1957);

2. the Municipal Committee, Delhi;

3. the Notified Area Committee, Civil Station, Delhi;

4. the Municipal Committee, Delhi –Shahdara,

5. the Notified Area Committee, Red Fort;

6. the Municipal Committee, West Delhi;

7. the South Delhi Municipal Committee;

8. the Notified Area Committee, Mehrauli.

The Second Schedule

Basic Rent

1. In this Schedule, “basic rent” in relation to any premises let out before the 2nd June, 1944, means the original rent of such premises referred to in paragraph 2 increased by such percentage of the original rent as is specified in paragraph 3 or paragraph 4 or paragraph 5, as the case may be.

(2) “Original rent” , in relation to premises referred to in paragraph I, means –

(a) Where the rent of such premises has been fixed under the New Delhi House Rent Control Order, 1939,or the Delhi Rent Control Ordinance, 1944 (25 of 1944), the rent so fixed, or

(b) In any other case,-

(i) The rent at which the premise sere let on the 1st November, 1939,or

(ii) If the premises were not let on that date, the rent at which they were first let out at any time after that date but before the 2nd June, 1944.

3. Where the premises to which paragraph 2 applies are let out for the purpose of being used as a residence or for any of the purpose of public hospital, an educational institution a public library or reading room or an orphanage, the basic rent of the premises shall be the original rent increased by-

(a) 12-1/2 per cent. thereof, if the original rent per annum is not more than Rs. 300;

(b) 15-5/8 per cent, thereof, if the original rent pr annum is more than Rs. 300 but not more than Rs. 600

(c) 18-3/4 per cent, thereof, if the original rent per annum is more than Rs. 600 but not more than Rs. 1,200;

(d) 25 per cent, thereof, if the original rent per annum is more than Rs. 1,200.

4. Where the premises to which paragraph 2 applies are let out for any purpose other than those mentioned in paragraph 3, he basic rent of the premises shall be the original rent increased by twice the amount by which it would be increased under paragraph 3, if the premises were let for a purpose mentioned in that paragraph.

5. Where the premises to which paragraph 2 applies are used mainly as a residence and incidentally for business or profession, the basic rent of the premises shall be the mean of the rent as calculated under paragraph 3 and 4.

The Third Schedule

Form of summons in a case where recovery of possession of premises is prayed for on the ground of bona fide requirement or under Section 14A

To

[Name, description and place of residence of the tenant]

Whereas Shri……………..has filed an application a copy of which is annexed) for your eviction from (here insert the particulars of the premises) on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A;

You are hereby summoned to appear before the Controller within fifteen days of the service hereof and to obtain the leave of the Controller to contest the application eviction on the ground aforesaid; in default whereof, the applicant will be entitled at any time after the expiry of the said period of fifteen days to obtain an order for your eviction from the said premises.

Leave to appear and contest the application may be obtained on an application to the Controller supported by an affidavit as is referred to in sub-section (5) of section 25B.

Given under my hand and seal

This …………..day of…………..19..Controller]

1. Short title.

These rules may be called the Delhi Rent Control Rules, 1959.

2. Definitions.

In these rules, unless the context otherwise requires:-

(a) “Act” means the Delhi Rent Control Act, 1958;

(b) “Form” means form appended to these rules;

(c) “Recognised agent” means a person holding a power of attorney authorising him to act on behalf of his principal or an agent empowered by written authority under the hand of his principal;

(d) “Section” means a section of the Act.

(e) “Valuer” means a graduate in civil engineering, architecture or town planning of a recgonised university, or a person who possesses a qualification recognised by the Central Government for recruitment to superior services or posts under the Central Government in the filed of civil engineering, architecture or town planning; and

(A) He must be a person formerly employed-

(a) In a post under Government as a Gazette Officer; or

(b) In a post under any other employer carrying a remuneration of not less than Rs. 2000 per month, and, in either case, must have retired or resigned from such employment after having rendered service for not less than five years as a valuer, architect, or town planner, or in the filed on construction of building designing of structures, or development of land; or

(c) As a professor, reader or lecture in a university, college or any other institution preparing students for a degree in civil engineering, architecture or town planning or has retired or resigned from such employment after having taught for not less than five years any of the subject of valuation, quantity surveying, building construction, architecture, or town planning ; or

(B) He must have been in practice as a consulting engineer, surveyor or architect for a period of not less than five years and must have in the opinion of the Rent Controller acquired sufficient experience in any of the following fields:-

(a) Valuation of building and urban lands;

(a) Valuation of building and urban lands;

(b) Quantity surveying in building construction;

(c) Architectural or structural designing of building or town planning; or

(d) Construction of buildings or development of land.

3. Application under section 9, 13, 14 or 19(1).

(1) Every application to the Controller under section 9, section 13, section 14 or sub-section (1) of section 19 shall be in Form ‘A’.

(2) An application under section 13 shall also give particulars of the sum or consideration paid, the circumstances under which such payment was made and the provisions of the Act, or of the Delhi-Ajmer Rent Control Act, 1952, which has been contravened.

(3) An application for permission to re-let premises under sub-section (1) of section 19 shall also state the ground on which the premises are sought to re-let in whole or in part.

4. Application for re-enter.

An application by a tenant under sub-section (2) of section 19 or under sub-section (3) of section 20 for putting him in possession of the premises of part thereof shall be made within six months from the date on which the cause of action for re-entry arises and shall state the grounds on which such possession in claimed.

5. Application for recovery of possession under section 21.

An application recovery of possession under section 21 by the landlord shall be made within six months from the date of expiry of the period of tenancy.

6. Form of other application.

An application not herein before specified in these rules shall, so far as may be, made in Form ‘A’ and shall state the grounds on which it is made.

7. Manner in which application are to be made.

(1) Every application under the Act shall be signed and verified in the manner prescribed under rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908, and shall be presented by the applicant or his recognised agent to the Controller.

(2) Every such application shall be accompanied by a copy or sufficient number of copies thereof for service on the respondent on respondents mentioned therein.

8. Appearance before Controller.

A party may appear before the Controller either in person or by a recognised agent provided that if the Controller so directs the party shall appear in person.

8.A Form of report of valuation by valuer.

(1) The report of valuation by a valuer in respect of the premised shall be in Form “F”.

Fees-(2) The amount of fees to be paid to the valuer shall be such as may be decided by the Rent Controller.

9. Receipt of rent.

A receipt required to be given by the landlord or his authorsied agent under sub-section (2) of section 26 in respect of rent paid for any premises shall be in Form ‘B’.

10. Deposit of rent.

(1) A deposit of rent under section 27 shall be made in cash and shall be accompanied by an application by the tenant in Form “C”.

(2) On such deposit being made, the Controller shall send a copy or copies of the application accompanying the deposit, by registered post with acknowledgement due, at the cost of the applicant, to the landlord or persons claiming to be entitled to the rent with an endorsement or the date of the deposit.

11. Payment of the rent deposited.

The Controller shall order the amount of rent deposited to be paid to the landlord or persons entitled to the rent either in cash or be cheque.

12. Accounting of deposits.

deposited shall be treated as civil court deposits and accounted for and Subject to the provisions of section 29, all sums dealt with according to the rules of civil court deposits in force in civil courts in Delhi.

13. Recovery of possession from the lodger.

An application by the manager of a hotel or the owner of a lodging house for a certificate under section 34 shall contain the grounds for the recovery of possession from the lodger of accommodation provided to him and shall be made in writing and accompanied by an affidavit in support of the allegations contained therein.

14. Certificate to be sent to the manager.

A certificate issued under section 34 by the Controller shall be sent to the manager of the hotel or the owner of the lodging house concerned with a copy thereof to the lodger concerned by registered post with acknowledgement due.

15. Display of notice of fair rates.

The manager of every hotel or the owner of every lodging house shall display a notice of the fair rates fixed by the Controller and a copy of the relevant provisions of the Act and rules relating thereto in a conspicuous manner in the hotel or lodging house, as the case may be.

16. Application to the Controller.

Every application to the Controller under Chapter V of the Act including an application for certificate under section 34 shall be in Form ‘D’ and shall be delivered to the Controller either in person or through a recognised agent or sent to his office by registered post.

17. Form of Appeal.

(1) Every appeal to the Rent Control Tribunal under section 38 shall be preferred in the form of memorandum signed by the appellant or his recognised agent and presented either in person or through a recognies agent to the Tribunal or to such office as it may appoint in this behalf.

(2) Every such memorandum shall be accompanied by a copy of the order of the Controller appealed from and shall set forth concisely and under distinct heads, the grounds of objection to the order appealed from without any argument or narrative, and such grounds shall be numbered consecutively.

18. Application for transfer of proceeding.

An application for transfer of proceeding under sub-section (4) of section 38 shall be accompanied by an affidavit of the allegations contained in the application.

19. Appearance before Tribunal.

A party may appear before the Rent Control Tribunal either in person or by a recognised agent provided that if the Rent Control Tribunal so directs the party shall appear in person.

20. Process Fees.

(1) Process fees for processes under the Act shall be levied as prescribed in the rules made by the Punjab High Court under section 20 of the Court Fees Act, 1870, as to cost of processes in civil court.

(2) For the purposes of this rule, the Controller shall be deemed to be a Civil Court of Third Grade and the court of the Rent Control Tribunal shall be deemed to be a Civil Court of Second Grade .

21. Notice relating to sub- tenancy .

A notice creation or termination of sub-tenancy required under section 17 shall be in Form ‘E’.

22. Service of notice, etc.

Unless otherwise provided by the Act, any notice or intimation required or authorised by the Act to be served on any person shall be served,-

(a) By delivering it to the person; or

(d) Construction of buildings or development of land.

23. Code of Civil Procedure to be generally followed.

In deciding any question relating to procedure not specifically provided by the Act and these rules the Controller and the Rent Control Tribunal shall ,as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908.

24. Registers to be maintained by the Controller and Tribunal

The Controller and Rent Control Tribunal shall maintain such of the registers prescribed for use in civil courts in Delhi as may be necessary.

Competition Act

November 30, 2014

Section 1. Short title, extent and commencement

(1) This Act may be called the Competition Act, 2002.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:

Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

Section 2. Definitions

In this Act, unless the context otherwise requires,—

(a) “acquisition” means, directly or indirectly, acquiring or agreeing to acquire—

(i) shares, voting rights or assets of any enterprise; or

(ii) control over management or control over assets of any enterprise;

(b) “agreement” includes any arrangement or understanding or action in concert,—

(i) whether or not, such arrangement, understanding or action is formal or in writing; or

(ii) whether or not such arrangement, understanding or action is intended to be enforceable by legal proceedings;

(c) “cartel” includes an association of producers, sellers, distributors, traders or service providers who, by agreement amongst themselves, limit, control or attempt to control the production, distribution, sale or price of, or, trade in goods or provision of services;

(d) “Chairperson” means the Chairperson of the Commission appointed under sub-section (1) of section 8;

(e) “Commission” means the Competition Commission of India established under sub-section (1) of section 7;

(f) “consumer” means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, whether such purchase of goods is for resale or for any commercial purpose or for personal use;

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person whether such hiring or availing of services is for any commercial purpose or for personal use;

(g) “Director General” means the Director General appointed under sub-section (1) of section 16 and includes any Additional, Joint, Deputy or Assistant Directors General appointed under that section;

(h) “enterprise” means a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space.

Explanation.-—For the purposes of this clause,—

(a) “activity” includes profession or occupation;

(b) “article” includes a new article and “service” includes a new service;

(c) “unit” or “division”, in relation to an enterprise, includes—

(i) a plant or factory established for the production, storage, supply, distribution, acquisition or control of any article or goods;

(ii) any branch or office established for the provision of any service;

(i) “goods” means goods as defined in the Sale of Goods Act, 1930 (8 of 1930) and includes—

(A) products manufactured, processed or mined;

(B) debentures, stocks and shares after allotment;

(C) in relation to goods supplied, distributed or controlled in India, goods imported into India;

(j) “Member” means a Member of the Commission appointed under sub-section (/) of section8 and includes the Chairperson;

(k) “notification” means a notification published in the Official Gazette;

(l) “person” includes—

(i) an individual;

(ii) a Hindu undivided family;

(iii) a company;

(iv) a firm;

(v) an association of persons or a body of individuals, whether incorporated or not, in India or outside India;

(vi) any corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);

(vii) any body corporate incorporated by or under the laws of a country outside India;

(viii) a co-operative society registered under any law relating to cooperative societies;

(ix) a local authority;

(x) every artificial juridical person, not falling within any of the preceding sub-clauses;

(m) “practice” includes any practice relating to the carrying on of any trade by a person or an enterprise;

(n) “prescribed” means prescribed by rules made under this Act;

(o) “price”, in relation to the sale of any goods or to the performance of any services, includes every valuable consideration, whether direct or indirect, or deferred, and includes any consideration which in effect relates to the sale of any goods or to the performance of any services although ostensibly relating to any other matter or thing;

(p) “public financial institution” means a public financial institution specified under section 4A of the Companies Act, 1956 (1 of 1956) and includes a State Financial, Industrial or Investment Corporation;

(q) “regulations” means the regulations made by the Commission under section 64;

(r) “relevant market” means the market which may be determined by the Commission with reference to the relevant product market or the relevant geographic market or with reference to both the markets;

(s) “relevant geographic market” means a market comprising the area in which the conditions of competition for supply of goods or provision of services or demand of goods or services are distinctly homogenous and can be distinguished from the conditions prevailing in the neighbouring areas;

(t) “relevant product market” means a market comprising all those products or services which are regarded as interchangeable or substitutable by the consumer, by reason of characteristics of the products or services, their prices and intended use;

(u) “service” means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising;

(v) “shares” means shares in the share capital of a company carrying voting rights and includes—

(i) any security which entitles the holder to receive shares with voting rights;

(ii) stock except where a distinction between stock and share is expressed or implied;

(w) “statutory authority” means any authority, board, corporation, council, institute, university or any other body corporate, established by or under any Central, State or Provincial Act for the purposes of regulating production or supply of goods or provision of any services or markets therefor or any matter connected therewith or incidental thereto;

(x) “trade” means any trade, business, industry, profession or occupation relating to the production, supply, distribution, storage or control of goods and includes the provision of any services;

(y) “turnover” includes value of sale of goods or services;

(z) words and expressions used but not defined in this Act and defined in the Companies Act, 1956 (1 of 1956) shall have the same meanings respectively assigned to them in that Act.

Chapter II – Prohibition of Certain Agreements, Abuse of Dominant Position and Regulation of Combinations – Prohibition of agreements

Section 3. Anti competitive agreements

(1) No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.

(2) Any agreement entered into in contravention of the provisions contained in subsection (1) shall be void.

(3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which—

(a) directly or indirectly determines purchase or sale prices;

(b) limits or controls production, supply, markets, technical development, investment or provision of services;

(c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way;

(d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition:

Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.

Explanation.—For the purposes of this sub-section, “bid rigging” means any agreement, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding

(4) Any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provision of services, including—

(a) tie-in arrangement;

(b) exclusive supply agreement;

(c) exclusive distribution agreement;

(d) refusal to deal;

(e) resale price maintenance,

shall be an agreement in contravention of sub-section (1) if such agreement causes or is likely to cause an appreciable adverse effect on competition in India.

Explanation.—For the purposes of this sub-section,—

(a) “tie-in arrangement” includes any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods;

(b) “exclusive supply agreement” includes any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person;

(c) “exclusive distribution agreement” includes any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods;

(d) “refusal to deal” includes any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought;

(e) “resale price maintenance” includes any agreement to sell goods on condition that the prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged.

(5) Nothing contained in this section shall restrict—

(i) the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon him under—

(a) the Copyright Act, 1957 (14 of 1957);

(b) the Patents Act, 1970 (39 of 1970);

(c) the Trade and Merchandise Marks Act, 1958 (43 of 1958) or the Trade Marks Act, 1999 (47 of 1999);

(d) the Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999);

(e) the Designs Act, 2000 (16 of 2000);

(f) the Semi-conductor Integrated Circuits Layout-Design Act, 2000 (37 of 2000);

(ii) the right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provision of services for such export.

Section 4. Abuse of dominant position

Prohibition of abuse of dominant position

(1) No enterprise shall abuse its dominant position.

(2) There shall be an abuse of dominant position under sub-section (1), if an enterprise.—-

(a) directly or indirectly, imposes unfair or discriminatory—

(i) condition in purchase or sale of goods or service; or

(ii) price in purchase or sale (including predatory price) of goods or service,

Explanation.— For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or service referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory condition or price which may be adopted to meet the competition;

or

(b) limits or restricts—

(i) production of goods or provision of services or market therefore; or

(ii) technical or scientific development relating to goods or services to the prejudice of consumers; or

(c) indulges in practice or practices resulting in denial of market access; or

(d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or

(e) uses its dominant position in one relevant market to enter into, or protect, other relevant market.

Explanation.—For the purposes of this section, the expression—

(a) “dominant position” means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to—

(i) operate independently of competitive forces prevailing in the relevant market; or

(ii) affect its competitors or consumers or the relevant market in its favour;

(b) “predatory price” means the sale of goods or provision of services, at a. price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors.

Section 5. Combination

Regulation of combinations

The acquisition of one or more enterprises by one or more persons or merger or amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises, if—

(a) any acquisition where—

(i) the parties to the acquisition, being the acquirer and the enterprise, whose control, shares, voting rights or assets have been acquired or are being acquired jointly have,—

(A) either, in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars;

or

(ii) the group, to which the enterprise whose control, shares, assets or voting rights have been acquired or are being acquired, would belong after the acquisition, jointly have or would jointly have,—

(A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars; or

(b) acquiring of control by a person over an enterprise when such person has already direct or indirect control over another enterprise engaged in production, distribution or trading of a similar or identical or substitutable goods or provision of a similar or identical or substitutable service, if—

(i) the enterprise over which control has been acquired along with the enterprise over which the acquirer already has direct or indirect control jointly have,—

(A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars;

or

(ii) the group, to which enterprise whose control has been acquired, or is being acquired, would belong after the acquisition, jointly have or would jointly have,—

(A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars; or

(C) any merger or amalgamation in which—

(i) the enterprise remaining after merger or the enterprise created as a result of the amalgamation, as the case may be, have,—

(A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees, three thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars;

or

(ii) the group, to which the enterprise remaining after the merger or the enterprise created as a result of the amalgamation, would belong after the merger or the amalgamation, as the case may be, have or would have,—

(A) either in India, the assets of the value of more than rupees four-thousand crores or turnover more than rupees twelve thousand crores; or

(B) in I ndia or outside India, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars.

Explanation.— For the purposes of this section,—

(a) “control” includes controlling the affairs or management by—

(i) one or more enterprises, either jointly or singly, over another enterprise or group;

(ii) one or more groups, either jointly or singly, over another group or enterprise;

(b) “group” means two or more enterprises which, directly or indirectly, are in a position to —

(i) exercise twenty-six per cent. or more of the voting rights in the other enterprise; or

(ii) appoint more than fifty percent, of the members of the board of directors in the other enterprise; or

(iii) control the management or affairs of the other enterprise;

(c) the value of assets shall be determined by taking the book value of the assets as shown, in the audited books of account of the enterprise, in the financial year immediately preceding the financial year in which the date of proposed merger falls, as reduced by any depreciation, and the value of assets shall include the brand value, value of goodwill, or value of copyright, patent, permitted use, collective mark, registered proprietor, registered trade mark, registered user, homonymous geographical indication, geographical indications, design or layout-design or similar other commercial rights, if any, referred to in sub-section (5) of section 3.

Section 6. Regulation of combinations

(1) No person or enterprise shall enter into a combination which causes or is likely to cause an appreciable adverse effect on competition within the relevant market in India and such a combination shall be void.

(2) Subject to the provisions contained in sub-section (1), any person or enterprise, who or which proposes to enter into a combination, may, at his or its option, give notice to the Commission, in the form as may be specified, and the fee which may be determined, by regulations, disclosing the details of the proposed combination, within seven days of—

(a) approval of the proposal relating to merger or amalgamation, referred to in clause (c) of section 5, by the board of directors of the enterprises concerned with such merger or amalgamation, as the case may be;

(b) execution of any agreement or other document for acquisition referred to in clause (a) of section 5 or acquiring of control referred to in clause (h) of that section.

(3) The Commission shall, after receipt of notice under sub-section (2), deal with such notice in accordance with the provisions contained in sections 29, 30 and 31.

(4) The provisions of this section shall not apply to share subscription or financing facility or any acquisition, by a public financial institution, foreign institutional investor, bank or venture capital fund, pursuant to any covenant of a loan agreement or investment agreement.

(5) The public financial institution, foreign institutional investor, bank or venture capital fund, referred to in sub-section (4\ shall, within seven days from the date of the acquisition, file, in the form as may be specified by regulations, with the Commission the details of the acquisition including the details of control, the circumstances for exercise of such control and the consequences of default arising out of such loan agreement or investment agreement, as the case may be.

Explanation.—For the purposes of this section, the expression—

(a) “foreign institutional investor” has the same meaning as assigned to it in clause (a) of the Explanation to section 115AD of the Income-tax Act, 1961(43 of 1961);

(b) “venture capital fund” has the same meaning as assigned to it in clause (b) of the Explanation to clause (23 FB) of section 10 of the Income-tax Act, 1961(43 of 1961);.

Chapter III – Competition Commission of India

Section 7. Establishment of Commission

(1) With effect from such date as the Central Government may, by notification, appoint, there shall be established, for the purposes of this Act, a Commission to be called the “Competition Commission of India”.

(2) The Commission shall be a body corporate by the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued,

(3) The head office of the Commission shall be at such place as the Central Government may decide from time to time.

(4) The Commission may establish offices at other places in India.

Section 8. Composition of Commission

(1) The Commission shall consist of a Chairperson and not less than two and not more than ten other Members to be appointed by the Central Government:

Provided that the Central Government shall appoint the Chairperson and a Member during the first year of the establishment of the Commission.

(2) The Chairperson and every other Member shall be a person of ability, integrity and standing and who, has been, or is qualified to be, a judge of a High Court; or, has special knowledge of, and professional experience of not less than fifteen years in international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which, in the opinion of the Central Government, may be useful to the Commission.

(3) The Chairperson and other Members shall be whole-time Members.

Section 9. Selection of Chairperson and other Members

The Chairperson and other Members shall be selected in the manner as may be prescribed.

Section 10. Term of office of Chairperson and other Members

(1) The Chairperson and every other Member shall hold office as such for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment:

Provided that no Chairperson or other Member shall hold office as such after he has attained,—

(a) in the case of the Chairperson, the age of sixty-seven years;

(b) in the case of any other Member, the age of sixty-five years.

(2) A vacancy caused by the resignation or removal of the Chairperson or any other Member under section 11 or by death or otherwise shall be filled by fresh appointment in accordance with the provisions of sections 8 and 9.

(3) The Chairperson and every other Member shall, before entering upon his office, make and subscribe to an oath of office and of secrecy in such form, manner and before such authority, as may be prescribed.

(4) In the event of the occurrence of a vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the senior-most Member shall act as the Chairperson, until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.

(5) When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, the senior-most Member shall discharge the functions of the Chairperson until the date on which the Chairperson resumes the charge of his functions.

Section 11. Resignation, removal and suspension of Chairperson and other members

(1) The Chairperson or any other Member may, by notice in writing under his hand addressed to the Central Government, resign his office:

Provided that the Chairperson or a Member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.

(2) Notwithstanding anything contained in sub-section (1), the Central Government may, by order, remove the Chairperson or any other Member from his office if such Chairperson or Member, as the case may be,—

(a) is, or at any time has been, adjudged as an insolvent; or

(b) has engaged at any time, during his term of office, in any paid employment, or

(c) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or

(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member; or

(e) has so abused his position as to render his continuance in office prejudicial to the public interest;

or

(f) has become physically or mentally incapable of acting as a Member.

(3) Notwithstanding anything contained in sub-section (2), no Member shall be removed from his office on the ground specified in clause (d) or clause (e) of that subsection unless the Supreme Court, on a reference being made to it in this behalf by the Central Government, has, on an inquiry, held by it in accordance with such procedure as may be prescribed in this behalf by the Supreme Court, reported that the Member, ought on such ground or grounds to be removed.

Section 12. Restriction on employment of Chairperson and other Members in certain cases

The Chairperson and other Members shall not, for a period of one year from the ‘ date on which they cease to hold office, accept any employment in, or connected with the management or administration of, any enterprise which has been a party to a proceeding before the Commission under this Act:

Provided that nothing contained in this section shall apply to any employment under the Central Government or a State Government or local authority or in any statutory authority or any corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).

Section 13. Financial and administrative powers of Member Administration

The Central Government shall designate any Member as Member Administration who shall exercise such financial and administrative powers as may be vested in him under the rules made by the Central Government:

Provided that the Member Administration shall have authority to delegate such of his financial and administrative powers as he may think fit to any other officer of the Commission subject to the condition that such officer shall, while exercising such delegated powers continue to act under the direction, superintendence and control of the Member Administration.

Section 14. Salary and allowances and other terms and conditions of service of Chairperson and other Members

(1) The salary, and the other terms and conditions of service, of the Chairperson and other Members, including travelling expenses, house rent allowance and conveyance facilities, sumptuary allowance and medical facilities shall be such as may be prescribed.

(2) The salary, allowances and other terms and conditions of service of the Chairperson or a Member shall not be varied to his disadvantage after appointment.

Section 15. Vacancy, etc. not to invalidate proceedings of Commission

No act or proceeding of the Commission shall be invalid merely by reason of—

(a) any vacancy in, or any defect in the constitution of, the Commission; or

(b) any defect in the appointment of a person acting as a Chairperson or as a Member; or

(c) any irregularity in the procedure of the Commission not affecting the merits of the case.

Section 16. Appointment of Director General, etc.

(1) The Central Government may, by notification, appoint a Director General and as many Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or officers, as it may think fit, for the purposes of assisting the Commission in conducting inquiry into contravention of any of the provisions of this Act and for the conduct of cases before the Commission and for performing such other functions as are, or may be, provided by or under this Act

(2) Every Additional, Joint, Deputy and Assistant Directors General or such other advisers, consultants and officers, shall exercise his powers, and discharge his functions, subject to the general control, supervision and direction of the Director General.

(3) The salary, allowances and other terms and conditions of service of the Director General and Additional, Joint, Deputy and Assistant Directors General or such other advisers, consultants or officers, shall be such as may be prescribed.

(4) The Director General and Additional, Joint, Deputy and Assistant Directors General or such other advisers, consultants or officers shall be appointed from amongst persons of integrity and outstanding ability and who have experience in investigation, and knowledge of .accountancy, management, business, public administration, international trade, law or economics and such other qualifications as may be prescribed.

Section 17. Registrar and officers and other employees of Commission

(1) The Commission may appoint a Registrar and such officers and other employees as it considers necessary for the efficient performance of its functions under this Act.

(2) The salaries and allowances payable to and other terms and conditions of service of the Registrar and officers and other employees of the Commission and the number of such officers and other employees shall be such as may be prescribed.

Chapter IV – Duties, Powers and Functions of Commission

Section 18. Duties of Commission

Subject to the provisions of this Act, it shall be the duty of the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India: Provided that the Commission may, for the purpose of discharging its duties or performing its functions under this Act, enter into any memorandum or arrangement with the prior approval of the Central Government, with any agency of any foreign country.

Section 19. Inquiry into certain agreements and dominant position of enterprise

(1) The Commission may inquire into any alleged contravention of the provisions contained in subsection (1) of section 3 or sub-section (1) of section 4 either on its own motion or on—

(a) receipt of a complaint, accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association; or

(b) a reference made to it by the Central Government or a State Government or a statutory authority.

(2) Without prejudice to the provisions contained in sub-section (1), the powers and functions of the Commission shall include the powers and functions specified in sub-sections (3) to (7).

(3) The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under section 3, have due regard to all or any of the following factors, namely:—

(a) creation of barriers to new entrants in the market;

(b) driving existing competitors out of the market;

(c) foreclosure of competition by hindering entry into the market;

(d) accrual of benefits to consumers;

(e) improvements in production or distribution of goods or provision of services;

(f) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services.

(4) The Commission shall, while inquiring whether an enterprise enjoys a dominant position or not under section 4, have due regard to all or any of the following factors, namely:—

(a) market share of the enterprise;

(b) size and resources of the enterprise;

(c) size and importance of the competitors;

(d) economic power of the enterprise including commercial advantages over competitors;

(e) vertical integration of the enterprises or sale or service network of such enterprises;

(f) dependence of consumers on the enterprise;

(g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise;

(h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers;

(i) countervailing buying power;

(j) market structure and size of market;

(k) social obligations and social costs;

(l) relative advantage, by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition;

(m) any other factor which the Commission may consider relevant for the inquiry.

(5) For determining whether a market constitutes a “relevant market” for the purposes of this Act, the Commission shall have due regard to the “relevant geographic market” and “relevant product market”.

(6) The Commission shall, while determining the “relevant geographic market”, have due regard to all or any of the following factors, namely:—

(a) regulatory trade barriers;

(b) local specification requirements;

(c) national procurement policies;

(d) adequate distribution facilities;

(e) transport costs;

(f) language;

(g) consumer preferences;

(h) need for secure or regular supplies or rapid after-sales services.

(7) The Commission shall, while determining the “relevant product market”, have due regard to all or any of the following factors, namely:—

(a) physical characteristics or end-use of goods;

(b) price of goods or service;

(c) consumer preferences;

(d) exclusion of in-house production;

(e) existence of specialised producers;

(f) classification of industrial products.

Section 20. Inquiry into combination by Commission

(1) The Commission may, upon its own knowledge or information relating to acquisition referred to in clause (a) of section 5 or acquiring of control referred to in clause (b) of section 5 or merger or amalgamation referred to in clause (c) of that section, inquire into whether such a combination has
caused or is likely to cause an appreciable adverse effect on competition in India:

Provided that the Commission shall not initiate any inquiry under this sub-section after the expiry of one year from the date on which such combination has taken effect.

(2) The Commission shall, on receipt of a notice under sub-section (2) of section 6 or upon receipt of a reference under sub-section (1) of section 21, inquire whether a combination referred to in that notice or reference has caused or is likely to cause an appreciable adverse effect on competition in India.

(3) Notwithstanding anything contained in section 5, the Central Government shall, on the expiry of a period of two years from the date of commencement of this Act and thereafter every two years, in consultation with the Commission, by notification, enhance or reduce, on the basis of the wholesale price index or fluctuations in exchange rate of rupee or foreign currencies, the value of assets or the value of turnover, for the purposes of that section.

(4) For the purposes of determining whether a combination would have the effect of or is likely to have an appreciable adverse effect on competition in the relevant market, the Commission shall have due regard to all or any of the following factors, namely:—

(a) actual and potential level of competition through imports in the market;

(b) extent of barriers to entry into the market;

(c) level of combination in the market;

(d) degree of countervailing power in the market;

(e) likelihood that the combination would result in the parties to the combination being able to significantly and sustainably increase prices or profit margins;

(f) extent of effective competition likely to sustain in a market;

(g) extent to which substitutes are available or arc likely to be available in the market;

(h) market share, in the relevant market, of the persons or enterprise in a combination, individually and as a combination;

(i) likelihood that the combination would result in the removal of a vigorous and effective competitor or competitors in the market;

(j) nature and extent of vertical integration in the market;

(k) possibility of a failing business;

(l) nature and extent of innovation;

(m) relative advantage, by way of the contribution to the economic development, by any combination having or likely to have appreciable adverse effect on competition;

(n) whether the benefits of the combination outweigh the adverse impact of the combination, if any.

Section 21. Reference by statutory authority

(1) Where in the course of a proceeding before any statutory authority an issue is raised by any party that any decision which such statutory authority has taken or proposes to take. is or would be, contrary to any of the provisions of this Act, then such statutory authority may make a reference in respect of such issue to the Commission.

(2) On receipt of a reference under sub-section (1), the Commission shall, after hearing the parties to the proceedings, give its opinion to such statutory authority which shall thereafter pass such order on the issues referred to in that sub-section as it deems fit:

Provided that the Commission shall give its opinion under this section within sixty days of receipt of such reference.

Section 22. Benches of Commission

(1) The jurisdiction, powers and authority of the Commission may be exercised by Benches thereof.

(2) The Benches shall be constituted by the Chairperson and each Bench shall consist of not less than two Members.

(3) Every Bench shall consist of at least one Judicial Member.

Explanation.—For the purposes of this sub-section, “Judicial Member” means a Member who is, or has been, or is qualified to be, a Judge of a High Court.

(4) The Bench over which the Chairperson presides shall be the Principal Bench and the other Benches shall be known as the Additional Benches.

(5) There shall be constituted by the Chairperson one or more Benches to be called the Mergers Bench or Mergers Benches, as the case may be, exclusively to deal with matters referred to in sections 5 and 6.

(6) The places at which the Principal Bench, other Additional Bench or Mergers Bench shall ordinarily sit, shall be such as the Central Government may, by notification, specify.

Section 23. Distribution of business of Commission amongst Benches

(1) Where any Benches are constituted, the Chairperson may, from time to time, by order, make provisions as to the distribution of the business of the Commission amongst the Benches and specify the matters, which may be dealt with by each Bench.

(2) If any question arises as to whether any matter falls within the purview of the business allocated to a Bench, the decision of the Chairperson thereon shall be final.

(3) The Chairperson may—

(i) transfer a Member from one Bench to another Bench; or

(ii) authorise the Members of one Bench to discharge also the functions of the Members of other Bench:

Provided that the Chairperson shall transfer, with the prior approval of the Central Government, a Member from one Bench situated in one city to another Bench situated in another city.

(4) The Chairperson may, for the purpose of securing that any case or matter which, having regard to the nature of the questions involved, requires or is required in his opinion or under the rules made by the Central Government in this behalf, to be decided by a Bench composed of more than two Members, issue such general or special orders as he may deem fit.

Section 24. Procedure for deciding a case where Members of a Bench differ in opinion

If the Members of a Bench differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.

Section 25. Jurisdiction of Bench

An inquiry shall be initiated or a complaint be instituted or a reference be made under this Act before a Bench within the local limits of whose jurisdiction—

(a) the respondent, or each of the respondents, where there are more than one, at the time of the initiation of inquiry or institution of the complaint or making of reference, as the case may be, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the respondents, where there are more than one, at the time of the initiation of the inquiry or institution of complaint or making of reference, as the case may be, actually and voluntarily resides or carries on business or personally works for gain provided that in such case either the leave of the Bench is given, or the respondents who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Explanation.—A respondent, being a person referred to in sub-clause (iii) or sub-clause (vi) or sub-clause (vii) or sub-clause (viii) of clause (l) of section 2, shall be deemed to carry on business at its sole or principal place of business in India or at its registered office in India or where it has also a subordinate office at such place.

Section 26. Procedure for inquiry on complaints under Section 19

(1) On receipt of a complaint or a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information, under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter.

(2) The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission.

(3) Where on receipt of a complaint under clause (a) of sub-section (1) of section 19, the Commission is of the opinion that there exists no prima facie case, it shall dismiss the complaint and may pass such orders as it deems fit, including imposition of costs, if necessary.

(4) The Commission shall forward a copy of the report referred to in sub-section (2) to the parties concerned or to the Central Government or the State Government or the statutory authority, as the case may be.

(5) If the report of the Director General relates on a complaint and such report recommends that there is no contravention of any of the provisions of this Act, the complainant shall be given an opportunity to rebut the findings of the Director General.

(6) If, after hearing the complainant, the Commission agrees with the recommendation of the Director General, it shall dismiss the complaint.

(7) If, after hearing the complainant, the Commission is of the opinion that further inquiry is called for, it shall direct the complainant to proceed with the complaint.

(8) If the report of the Director General relates on a reference made under sub-section (/) and such report recommends that there is no contravention of the pro visions of this Act, the Commission shall invite comments of the Central Government or the State Government or the statutory authority, as the case may be, on such report and on receipt of such comments, the Commission shall return the reference if there is no prima facie case or proceed with the reference as a complaint if there is a prima facie case.

(9) If the report of the Director General referred to in sub-section (2) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act.

Section 27. Orders by Commission after inquiry into agreements or abuse of dominant position

Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely:—

(a) direct any enterprise or’association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, t’o discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be;

(b) impose such penalty, as it may deem fit which shall be not more than ten per cent. of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse:

Provided that in case any agreement referred to in section 3 has been entered into by any cartel, the Commission shall impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty equivalent to three times of the amount of profits made out of such agreement by the cartel or ten per cent. of the average of the turnover of the cartel for the last preceding three financial years, whichever is higher;

(c) award compensation to parties in accordance with the provisions contained in section 34;

(d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission;

(e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any:

(f) recommend to the Central Government for the division of an enterprise enjoying dominant position;

(g) pass such oilier order as it may deem fit.

Section 28. Division of enterprise enjoying dominant position

(1) The Central Government, on recommendation under clause (f) of section 27, may, notwithstanding anything contained in any other law for the time being in force, by order in writing, direct division of an enterprise enjoying dominant position to ensure that such enterprise does not abuse its dominant
position.

(2) In particular, and without prejudice to the generality of the foregoing powers, the order referred to in sub-section (1) may provide for all or any of the following matters, namely:—

(a) the transfer or vesting of property, rights, liabilities or obligations;

(b) the adjustment of contracts either by discharge or reduction of any liability or obligation or otherwise;

(c) the creation, allotment, surrender or cancellation of any shares, stocks or securities;

(d) the payment of compensation to any person who suffered any loss due to dominant position of such enterprise;

(e) the formation or winding up of an enterprise or the amendment of the memorandum of association or articles of association or any other instruments regulating the business of any enterprise;

(f) the extent to which, and the circumstances in which, provisions of the order affecting an enterprise may be altered by the enterprise and the registration thereof;

(g) any other matter which may be necessary to give effect to the division of the enterprise.

(3) Notwithstanding anything contained in any other law for the time being in force or in any contract or in any memorandum or articles of association, an officer of a company who ceases to hold office as such in consequence of the division of an enterprise shall not be entitled to claim any compensation for such cesser.

Section 29. Procedure for investigation of combination

(1) Where the Commission is of the opinion that a combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in India, it shall issue a notice to show cause to the parties to combination calling upon them to respond within thirty days of the receipt of the notice, as to why investigation in respect of such combination should not be conducted.

(2) The Commission, if it is prima facie of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition, it shall, within seven working days from the date of receipt of the response of the parties to the combination, direct the parties to the said combination to publish details of the combination within ten working days of such direction, in such manner, as it thinks appropriate, for bringing the combination to the knowledge or information of the public and persons affected or likely to be affected by such combination.

(3) The Commission may invite any person or member of the public, affected or likely to be affected by the said combination, to file his written objections, if any, before the Commission within fifteen working days from the date on which the details of the combination were published under sub-section (2).

(4) The Commission may, within fifteen working days from the expiry of the period specified in sub-section (3), call for such additional or other information as it may deem fit from the parties to the said combination.

(5) The additional or other information called for by the Commission shall be furnished by the parties referred to in sub-section (4) within fifteen days from the expiry of the period specified in sub-section (4).

(6) After receipt of all information and within a period of forty-five working days from the expiry of the period specified in sub-section (5), the Commission shall proceed to deal with the case in accordance with the provisions contained in section 31.

Section 30. Inquiry into disclosures under sub-section (2) of section 6

Where any person or enterprise has given a notice under sub-section (2) of section 6. The Commission shall inquire—

(a) whether the disclosure made in the notice is correct;

(b) whether the combination has, or is likely to have, an appreciable adverse effect on competition.

Section 31. Orders of Commission on certain combinations

(1) Where the Commission is of the opinion that any combination does not, or is not likely to, have an appreciable adverse effect on competition, it shall, by order, approve that combination including the combination in respect of which a notice has been given under sub-section (2) of section 6.

(2) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition, it shall direct that the combination shall not take effect.

(3) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, it may propose appropriate modification to the combination, to the parties to such
combination.

(4) The parties, who accept the modification proposed by the Commission under subsection (3), shall carry out such modification within the period specified by the Commission.

(5) If the parties to the combination, who have accepted the modification under subsection (4), fail to carry out the modification within the period specified by the Commission, such combination shall be deemed to have an appreciable adverse effect on competition and the Commission shall deal with such combination in accordance with the provisions of this Act.

(6) If the parties to the combination do not accept the modification proposed by the Commission under sub-section (3), such parties may, within thirty working days of the modification proposed by the Commission, submit amendment to the modification proposed by the Commission under that sub-section.

(7) If the Commission agrees with the amendment submitted by the parties under subsection (6), it shall, by order, approve the combination.

(8) If the Commission does not accept the amendment submitted under sub-section (6), then, the parties shall be allowed a further period of thirty working days within which such parties shall accept the modification proposed by the Commission under sub-section (3).

(9) If the parties fail to accept the modification proposed by the Commission within thirty working days referred to in sub-section (6) or within a further period of thirty working days referred to in sub-section (8), the combination shall be deemed to have an appreciable adverse effect on competition and be dealt with in accordance with the provisions of this Act.

(10) Where the Commission has directed under sub-section (2) that the combination shall not take effect or the combination is deemed to have an appreciable adverse effect on competition under sub-section (9), then, without prejudice to any penalty which may be imposed or any prosecution which may be initiated under this Act, the Commission may order that—

(a) the acquisition referred to in clause (a) of section 5; or

(b) the acquiring of control referred to in clause (b) of section 5; or

(c) the merger or amalgamation referred to in clause (c) of section 5, shall not be given effect to:

Provided that the Commission may, if it considers appropriate, frame a scheme to implement its order under this sub-section.

(11) If the Commission does not, on the expiry of a period of ninety working days from the date of publication referred to in sub-section (2) of section 29, pass an order or issue direction in accordance with the provisions of sub-section (1) or sub-section (2) or sub-section (7), the combination shall be deemed to have been approved by the Commission.

Explanation.—For the purposes of determining the period of ninety working days specified in this subsection, the period of thirty working days specified in sub-section (6) and a further period of thirty working days specified in sub-section (8) shall be excluded.

(12) Where any extension of time is sought by the parties to the combination, the period of ninety working days shall be reckoned after deducting the extended time granted at the request of the parties.

(13) Where the Commission has ordered a combination to be void, the acquisition or acquiring of control or merger or amalgamation referred to in section 5, shall be dealt with by the authorities under any other law for the time being in force as if such acquisition or acquiring of control or merger or amalgamation had not taken place and the parties to the combination shall be dealt with accordingly.

(14) Nothing contained in this Chapter shall affect any proceeding initiated or which may be initiated under any other law for the time being in force.

Section 32. Acts taking place outside India but having an effect on competition in India

The Commission shall, notwithstanding that,—

(a) an agreement referred to in section 3 has been entered into outside India; or

(b) any party to such agreement is outside India; or

(c) any enterprise abusing the dominant position is outside India; or

(d) a combination has taken place outside India; or

(e) any party to combination is outside India; or

(f) any other matter or practice or action arising out of such agreement or dominant position or combination is outside India, have power to inquire into such agreement or abuse of dominant position or combination if such agreement or dominant position or combination has, or is likely to have, an appreciable adverse effect on competition in the relevant market in India.

Section 33. Power to grant interim relief

(1) Where during an inquiry before the Commission, it is proved to the satisfaction of the Commission, by affidavit or otherwise, that an act in contravention of sub-section (1) of section 3 or sub-section (1) of section 4 or section 6 has been committed and continues to be committed or that such act is about to be committed, the Commission may, by order, grant a temporary injunction restraining any party from carrying on such act until the conclusion of such inquiry or until further orders, without giving notice to the opposite party, where it deems it necessary.

(2) Where during the inquiry before the Commission it is proved to the satisfaction of the Commission by affidavit or otherwise that import of any goods is likely to contravene sub-section (1) of section 3 or subsection (1) of section 4 or section 6, it may, by order, grant a temporary injunction restraining any party from importing such goods until the conclusion of such inquiry or until further orders, without giving notice to the opposite party, where it deems it necessary and a copy of such order granting temporary injunction shall be sent to the concerned authorities.

(3) The provisions of rules 2A to 5 (both inclusive) of Order XXXIX of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall, as far as may be, apply to a temporary injunction issued by the Commission under this Act, as they apply to a temporary injunction issued by a civil court, and any reference in any such rule to a suit shall be construed as a reference to any inquiry before the Commission.

Section 34. Power to award compensation

(1) Without prejudice to any other provisions contained in this Act, any person may make an application to the Commission for an order for the recovery of compensation from any enterprise for any loss or damage shown to have been suffered, by such person as a result of any contravention of the provisions of Chapter II, having been committed by such enterprise.

(2) The Commission may, after an inquiry made into the allegations mentioned in the application made under sub-section (1), pass an order directing the enterprise to make payment to the applicant, of the amount determined by it as realisable from the enterprise as compensation for the loss or damage caused to the applicant as a result of any contravention of the provisions of Chapter II having been committed by such enterprise.

(3) Where any loss or damage referred to in sub-section (1) is caused to numerous persons having the same interest, one or more of such persons may, with the permission of the Commission, make an application under that sub-section for and on behalf of, or for the benefit of, the persons so interested, and thereupon, the provisions of rule 8 of Order 1 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall apply subject to the modification that every reference therein to a suit or decree
shall be construed as a reference to the application before the Commission and the order of the Commission thereon.

Section 35. Appearance before Commission

A complainant or defendant or the Director General may either appear in person or authorise one or more chartered accountants or company secretaries or cost accountants or legal practitioners or any of his or its officers to present his or its case before the Commission.

Explanation.—For the purposes of this section,—

(a) “chartered accountant” means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;

(b) “company secretary” means a company secretary as defined in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980 (56 of 1980) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;

(c) “cost accountant” means a cost accountant as defined in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;

(d) “legal practitioner” means an advocate, vakil or an attorney of any High Court, and includes a pleader in practice.

Section 36. Power of Commission to regulate its own procedure

(1) The Commission shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules made by the Central Government, the Commission shall have powers to regulate its own procedure including the places at which they shall have their sittings, duration of oral hearings when granted, and times of its inquiry.

(2) The Commission shall have, for the purposes of discharging its functions umder this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908(5 of 1908), while trying a suit, in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) issuing commissions for the examination of witnesses or documents;

(e) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;

(f) dismissing an application in default or deciding it ex parte;

(g) any other matter which may be prescribed.

(3) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Commission shall be deemed to be a civil court for the purposes of section 195 (2 of 1974) and Chapter XXVI of the Code of Criminal Procedure, 1973.

(4) The Commission may call upon such experts, from the fields of economics, commerce, accountancy, international trade or from any other discipline as it deems necessary, to assist the Commission in the conduct of any inquiry or proceeding before it.

(5) The Commission may direct any person—

(a) to produce before the Director General or the Registrar or an officer authorised by it, such,books, accounts or other documents in the custody or under the control of such person so directed as may be specified or described in the direction, being documents relating to any trade, the examination of which may be required for the purposes of this Act;

(b) to furnish to the Director General or the Registrar or any officer authorised by it, as respects the trade or such other information as may be in his possession in relation to the trade carried on by such person, as may be required for the purposes of this Act.

(6) If the Commission is of the opinion that any agreement referred to in section 3 or “abuse of dominant position referred to in section 4 or the combination referred to in section 5 has caused or is likely to cause an appreciable adverse effect on competition in the relevant market in India and it is necessary to protect, without further delay, the interests of consumers and other market participants in India, it may conduct an inquiry or adjudicate upon any matter under this Act after giving a reasonable oral hearing to the parties concerned.

Section 37. Review of orders of Commission

Any person aggrieved by an order of the Commission from which an appeal is allowed by this Act but no appeal has been preferred, may, within thirty days from the date of the order, apply to the Commission for review of its order and the Commission may make such order thereon as it thinks fit:

Provided that the Commission may entertain a review application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from preferring the application in time:

Provided further that no order shall be modified or set aside without giving an opportunity of being heard to the person in whose favour the order is given and the Director General where he was a party to the proceedings.

Section 38. Rectification of orders

(1) With a view to rectifying any mistake apparent from the record, the Commission may amend any order passed by it under the provisions of this Act.

(2) Subject to the other provisions of this Act, the Commission may make—

(a) an amendment under sub-section (1) of its own motion;

(b) an amendment for rectifying any such mistake which has been brought to its notice by any party to the order.

Explanation.—- For the removal of doubts, it is hereby declared that the Commission shall not, while rectifying any mistake apparent from record, amend substantive part of its order passed under the provisions of this Act.

Section 39. Execution of orders of Commission

Every order passed by the Commission under this Act shall be enforced by the Commission in the same manner as if it were a decree or order made by a High Court or the principal civil court in a suit pending therein and it shall be lawful for the Commission to send, in the event of its inability to execute it, such order to the High Court or the principal civil court, as the case may be, within the local limits of whose jurisdiction,—

(a) in the case of an order against a person referred to in sub-clause (iii) or sub-clause (vi) or subclause (vii) of clause (l) of section 2, the registered office or the sole or principal place of business of the person in India or where the person has also a subordinate office, that subordinate office, is
situated;

(c) in the case of an order against any other person, the place, where the person concerned voluntarily resides or carries on business or personally works for gain, is situated, and thereupon the court to which the order is so sent shall execute the order as if it were a decree or order sent to it for execution.

Section 40. Appeal

Any person aggrieved by any decision or order of the Commission may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Commission to him on one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908):

Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days:

Provided further that no appeal shall lie against any decision or order of the Commission made with the consent of the parties.

Chapter V – Duties of Director General

Section 41. Director General to investigate contravention

(1) The Director General shall, when so directed by the Commission, assist the Commission in investigating into any contravention of the provisions of this Act or any rules or regulations made thereunder.

(2) The Director General shall have all the powers as are conferred upon the Commission under subsection (2) of section 36.

(3) Without prejudice to the provisions of sub-section (2), sections 240 and 240A of the Companies Act, 1956 (1 of 1956), so far as may be, shall apply to an investigation made by the Director General or any other person investigating under his authority, as they apply to an inspector appointed under that Act.

Chapter VI – Penalties

Section 42. Contravention of orders of Commission

(1) Without prejudice to the provisions of this Act, if any person contravenes, without any reasonable ground, any order of the Commission, or any condition or restriction subject to which any approval, sanction, direction or exemption in relation to any matter has been accorded, given, made or granted under this Act or fails to pay the penalty imposed under this Act, he shall be liable to be detained in civil prison for a term which may extend to one year, unless in the meantime the Commission directs his release and he shall also be liable to a penalty not exceeding rupees ten lakhs.

(2) The Commission may, while making an order under this Act, issue such directions to any person or authority, not inconsistent with this Act, as it thinks necessary or desirable, for the proper implementation or execution of the order, and any person who commits breach of. or fails to comply with, any obligation imposed on him under such direction, may be ordered by the Commission to be detained in civil prison for a term not exceeding one year unless in the meantime the Commission directs his release and he shall also be liable to a penalty not exceeding rupees ten lakhs.

Section 43. Penalty for failure to comply with directions of Commission and Director General

If any person fails to comply with a direction given by—

(a) the Commission under sub-section (5) of section 36; or

(b) the Director General while exercising powers referred to in sub-section (2) of section 41, the Commission shall impose on such person a penalty of rupees one lakh for each day during which such failure continues.

Section 44. Penalty for making false statement or omission to furnish material information

If any person, being a party to a combination,—

(a) makes a statement which is false in any material particular, or knowing it to be false; or

(b) omits to state any material particular knowing it to be material, such person shall be liable to a penalty which shall not be less than rupees fifty lakhs but which may extend to rupees one crore, as may be determined by the Commission.

Section 45. Penalty for offences in relation to furnishing of information

(1) Without prejudice to the provisions of section 44, if any person, who furnishes or is required to furnish under this Act any particulars, documents or any information,—

(a) makes any statement or furnishes any document which he knows or has reason to believe to be false in any material particular; or

(b) omits to state any material fact knowing it to be material; or

(c) wilfully alters, suppresses or destroys any document which is required to be furnished as aforesaid, the Commission shall impose on such person a penalty which may extend to rupees ten lakhs.

(2) Without prejudice to the provisions of sub-section (1), the Commission may also pass such other order as it deems fit.

Section 46. Power to impose lesser penalty

The Commission may, if it is satisfied that any producer, seller, distributor, trader or service provider included in any cartel, which is alleged to have violated section 3, has made a full and true disclosure in respect of the alleged violations and such disclosure is vital, impose upon such producer, seller, distributor, trader or service provider a lesser penalty as it may deem fit, than leviable under this Act or the rules or the regulations:

Provided that lesser penalty shall not be imposed by the Commission in cases where proceedings for the violation of any of the provisions of this Act or the rules or the regulations have been instituted or any investigation has been directed to be made under section 26 before making of such disclosure:

Provided further that lesser penalty shall be imposed by the Commission only in respect of a producer, seller, distributor, trader or service provider included in the cartel, who first made the full, true and vital disclosures under this section:

Provided also that the Commission may, if it is satisfied that such producer, seller, distributor, trader or service provider included in the cartel had in the course of proceedings,—

(a) not complied with the condition on which the lesser penalty was imposed by the Commission; or

(b) had given false evidence; or

(c) the disclosure made is not vital,

and thereupon such producer, seller, distributor, trader or service provider may be tried for the offence with respect to which the lesser penalty was imposed and shall also be liable to the imposition of penalty to which such person has been liable, had lesser penalty not been imposed.

Section 47. Crediting sums realised by way of penalties to Consolidated Fund of India

All sums realised by way of penalties under this Act shall be credited to the Consolidated Fund of India.

Section 48. Contravention by companies

(1) Where a person committing contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable lo any punishment if he proves that the contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such contravention.

(2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that contravention and shall be liable to be proceeded against and punished accordingly.

Explanation.—For the purposes of this section,—

(a)”company” means a body corporate and includes a firm or other association of individuals: and

(b) “director”, in relation to a firm, means a partner in the firm.

Chapter VII – Competition Advocacy

Section 49. Competition advocacy

(1) In formulating a policy on competition (including review of laws related to competition), the Central Government may make a reference to the Commission for its opinion on possible effect of such policy on competition and on receipt of such a reference, the Commission shall, within sixty days of making such reference, give its opinion to the Central Government, which may thereafter formulate the policy as it deems fit.

(2) The opinion given by the Commission under sub-section (1) shall not be binding upon the Central Government in formulating such policy.

(3) The Commission shall take suitable measures, as may be prescribed, for the promotion of competition advocacy, creating awareness and imparting training about competition issues.

Chapter VIII – Finance, Accounts and Audit

Section 50. Grants by Central Government

The Central Government may, after due appropriation made by Parliament by law in this behalf, make to the Commission grants of such sums of money as the Government may think fit for being utilised for the purposes of this Act.

Section 51. Constitution of Fund

(1) There shall be constituted a fund to be called the “Competition Fund” and there shall be credited thereto—

(a) all Government grants received by the Commission;

(b) the monies received as costs from parties to proceedings before the Commission;

(d) the fees received under this Act;

(e) the interest accrued on the amounts referred to in clauses (a) to (c).

(2) The Fund shall be applied for meeting—

(a) the salaries and allowances payable to the Chairperson and other Members and the administrative expenses including the salaries, allowances and pension payable to the Director General, Additional, Joint, Deputy or Assistant Directors General, the Registrar and” officers and other employees of the Commission;

(b) the other expenses of the Commission in connection with the discharge of its functions and for the purposes of this Act.

(3) The Fund shall be administered by a committee of such Members of the Commission as may be determined by the Chairperson.

(4) The committee appointed under sub-section (3) shall spend monies out of the Fund for carrying out the objects for which the Fund has been constituted.

Section 52. Accounts and Audit

(1)The Commission shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India.

(2) The accounts of the Commission shall be audited by the Comptroller and Auditor-General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Commission to the Comptroller and Auditor-General of India.

Explanation.—For the removal of doubts, it is hereby declared that the orders of the Commission, being matters appealable to the Supreme Court, shall not be subject to audit under this section.

(3) The Comptroller and Auditor-General of India and any other person appointed by him in connection with the audit of the accounts of the Commission shall have the same rights, privileges and authority in connection with such audit as the Comptroller and Auditor-General of India generally has, in connection with the audit of the Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Commission.

(4) The accounts of the Commission as certified by the Comptroller and Auditor-General of India or any other person appointed by him in this behalf together with the audit report thereon shall be forwarded annually to the Central Government and that Government shall cause the same to be laid before each House of Parliament.

Section 53. Furnishing of returns, etc., to Central Government

(1) The Commission shall furnish to the Central Government at such time and in such form and manner as may be prescribed or as the Central Government may direct, such returns and statements and such particulars in regard to any proposed or existing measures for the promotion of competition advocacy, creating awareness and imparting training about competition issues, as the Central Government may, from time to time, require.

(2) The Commission shall prepare once in every year, in such form and at such time as may be prescribed, an annual report giving a true and full account of its activities during the previous year and copies of the report shall be forwarded to the Central Government.

(3) A copy of the report received under sub-section (2) shall be laid, as soon as may be after it is received, before each House of Parliament.

Chapter IX – Miscellaneous

Section 54. Power to exempt

The Central Government may, by notification, exempt from the application of this Act, or any provision thereof, and for such period as it may specify in such notification—

(a) any class of enterprises if such exemption is necessary in the interest of security of the State or public interest;

(b) any practice or agreement arising out of and in accordance with any obligation assumed by India under any treaty, agreement or convention with any other country or countries;

(c) any enterprise which performs a sovereign function on behalf of the Central Government or a State Government:

Provided that in case an enterprise is engaged in any activity including the activity relatable to the sovereign functions of the Government, the Central Government may grant exemption only in respect of activity relatable to the sovereign functions.

Section 55. Power of Central Government to issue directions

(1) Without prejudice to the foregoing provisions of this Act, the Commission shall, in exercise of its powers or the performance of its functions under this Act, be bound by such directions on questions of policy, other than those relating to technical and administrative matters, as the Central Government may give in writing to it from time to time:

Provided that the Commission shall, as far as practicable, be given an opportunity to express its views before any direction is given under this sub-section.

(2) The decision of the Central Government whether a question is one of policy or not shall be final.

Section 56. Power of Central Government to supersede Commission

(1) If at any time the Central Government is of the opinion—

(a) that on account of circumstances beyond the control of the Commission, it is unable to discharge the functions or perform the duties imposed on it by or under the provisions of this Act; or

(b) that the Commission has persistently made default in complying with any direction given by the Central Government under this Act or in the discharge of the functions or performance of the duties imposed on it by or under the provisions of this Act and as a result of such default the financial position of the Commission or the administration of the Commission has suffered; or

(c) that circumstances exist which render it necessary in the public interest so to do, the Central Government may, by notification and for reasons to be specified therein, supersede the Commission for such period, not exceeding six months, as may be specified in the notification:

Provided that before issuing any such notification, the Central Government shall give a reasonable opportunity to the Commission to make representations against the proposed supersession and shall consider representations, if any, of the Commission.

(2) Upon the publication of a notification under sub-section (1) superseding the Commission,—

(a) the Chairperson and other Members shall as from the date of supersession, vacate their offices as such;

(b) all the powers, functions and duties which may, by or under the provisions of this Act, be exercised or discharged by or on behalf of the Commission shall, until the Commission is reconstituted under sub-section (3), be exercised and discharged by the Central Government or such authority as the Central Government may specify in tins behalf;

(c) all properties owned or controlled by the Commission shall, until the Commission is reconstituted under sub-section (3), vest in the Central Government.

(3) On or before the expiration of the period of supersession specified in the notification issued under subsection (1), the Central Government shall reconstitute the Commission by a fresh appointment of its Chairperson and other Members and in such case any person who had vacated his office under clause (a) of sub-section (2) shall not be deemed to be disqualified for re-appointment.

(4) The Central Government shall cause a notification issued under sub-section (1) and a full report of any action taken under this section and the circumstances leading to such action to be laid before each House of Parliament at the earliest.

Section 57. Restriction on disclosure of information

No information relating to any enterprise, being an information which has been obtained by or on behalf of the Commission for the purposes of this Act, shall, without the previous permission in writing of the enterprise, be disclosed otherwise than in compliance with or for the purposes of this Act or any other law for the time being in force.

Section 58. Members, Director General, Registrar, officers and other employees, etc. of Commission to be public servants

The Chairperson and other Members and the Director General, Additional, Joint, Deputy or Assistant Directors General and Registrar and officers and other employees of the Commission shall be deemed, while acting or purporting to act in pursuance of any of the provisions of this Act, to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

Section 59. Protection of action taken in good faith

No suit, prosecution or other legal proceedings shall lie against the Central Government or Commission or any officer of the Central Government or the Chairperson or any Member or the Director-General, Additional, Joint, Deputy or Assistant Directors General or Rcgistrar or officers or other employees of the Commission for anything which is in good faith done or intended to be done under this Act or the rules or regulations made thereunder.

Section 60. Act to have overriding effect

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

Section 61. Exclusion of jurisdiction of civil courts

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Commission is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

Section 62. Application of other laws not barred

The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.

Section 63. Power to make rules

(1) The Central Government may, by notification, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-—

(a) the manner in which the Chairperson and other Members shall be selected under section 9;

(b) the form and manner in which and the authority before whom the oath of office and of secrecy shall be made and subscribed to under sub-section (3) of section 10;

(c) the financial and administrative powers which may be vested in the Member Administration under section 13;

(d) the salary and the other terms and conditions of service including travelling expenses, house rent allowance and conveyance facilities, sumptuary allowance and medical facilities to be provided to the Chairperson and other Members under sub-section (1) of section 14;

(e) the salary, allowances and other terms and conditions of service of the Director General, Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or officers under sub-section (3) of section 16;

(f) the qualifications for appointment of the Director General, Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or officers under sub-section (4) of section 16;

(g) the salaries and allowances and other terms and conditions of service of the Registrar and officers and other employees payable, and the number of such officers and employees under sub-section (2) of section 17;

(h) for securing any case or matter which requires to be decided by a Bench composed of more than two Members under sub-section (4) of section 23;

(i) any other matter in respect of which the Commission shall have power under clause (g) of subsection (2) of section 36;

(j) the promotion of competition advocacy, creating awareness and imparting training about competition issues under sub-section (3) of section 49;

(k) the form in which the annual statement of accounts shall be prepared under sub-section (1) of section 52;

(l) the time within which and the form and manner in which the Commission may furnish returns, statements and such particulars as the Central Government may require under sub-section (1) of section 53;

(m) the form in which and the time within which the annual report shall be prepared under sub-section (2) of section 53;

(n) the manner in which the monies transferred to the Central Government shall be dealt with by that Government under the fourth proviso to sub-section (2) of section 66;

(o) any other matter which is to be, or may be, prescribed, or in respect of which provision is to be, or may be, made by rules.

(3) Every notification issued under sub-section (3) of section 20 and section 54 and every rule made under this Act by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session, or in two or more successive sessions, and if. before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or rule, or both Houses agree that the notification should not be issued or rule should not be made, the notification or rule shall thereafter have effect only in such modified form or
be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification or rule, as the case may be.

Section 64. Power to make regulations

(1) The Commission may, by notification, make regulations consistent with tills Act and the rules made thereunder to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing provisions, such regulations may provide for all or any of the following matters, namely:—

(a) the cost of production to be determined under clause (b) of the Explanation to section 4;

(b) the form of notice as may be specified and the fee which may be determined under sub-section (2) of section 6;

(c) the form in which details of the acquisition shall be filed under subsection (5) of Section 6;

(d) the fee which may be determined under clause (a) of sub-section (1) of section 19;

(e) any other matter in respect of which provision is to be, or may be, made by regulations.

(3) Every regulation made under this Act shall be laid, as soon as may be after it is made. before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation, or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.

Section 65. Power to remove difficulties

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as may appear to it to be necessary for removing the difficulty:

Provided that no such order shall be made under this section after the expiry of a period of two years from the commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

Section 66. Repeal and saving

(1) The Monopolies and Restrictive Trade Practices Act, 1969 is hereby repealed and the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of section 5 of the said Act
(hereinafter referred to as the repealed Act) (54 of 1969) shall stand dissolved.

(2) On the dissolution of the Monopolies and Restrictive Trade Practices Commission, the person appointed as the Chairman of the Monopolies and Restrictive Trade Practices Commission and every other person appointed as Member and Director General of Investigation and Registration, Additional, Joint, Deputy, or Assistant Directors General of Investigation and Registration and any officer and other employee of that Commission and holding office as such immediately before such dissolution shall vacate their respective offices and such Chairman and other Members shall be entitled to claim compensation not exceeding three months’ pay and allowances for the premature termination of term of their office or of any contract of service:

Provided that the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices Commission appointed on deputation basis to the Monopolies and Restrictive Trade Practices Commission, shall, on such dissolution, stand reverted to his parent cadre, Ministry or Department, as the case may be:

Provided further that the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices Commission, employed on regular basis by the Monopolies and Restrictive Trade Practices Commission, shall become, on and from such dissolution, the officer and employee, respectively, of the Central Government with the same rights and privileges as to pension, gratuity and other like matters as would have been admissible to him if the rights in relation to such Monopolies and Restrictive Trade Practices Commission had not been transferred to, and vested in, the Central Government and shall continue to do so unless and until his employment in the Central Government is duly terminated or until his remuneration, terms and conditions of employment are duly altered by that Government:

Provided also that notwithstanding anything contained in the Industrial Disputes Act, 1947(14 of 1947), or in any other law for the time being in force, the transfer of the services of any Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee, employed in the Monopolies and Restrictive Trade Practices Commission, to the Central Government shall not entitle such Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee any compensation under this Act or any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority:

Provided also that where the Monopolies and Restrictive Trade Practices Commission has established a provident fund, superannuation, welfare or other fund for the benefit of the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or the officers and other employees employed in the Monopolies and Restrictive Trade Practices Commission, the monies relatable to the-officers and other employees whose services have been transferred by or under this Act to the Central Government shall, out of the monies standing, on the dissolution of the Monopolies and Restrictive Trade Practices Commission to the credit of such provident fund, superannuation, welfare or other fund, stand transferred to, and vest in, the Central Government and such monies which stand so transferred shall be dealt with by the said Government in such manner as may be prescribed.

(3) All cases pertaining to monopolistic trade practices or restrictive trade practices pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement’of this Act, including such cases, in which any unfair trade practice has also been alleged, shall, on such commencement, stand transferred to the Competition Commission of India and shall be adjudicated by that Commission in accordance with the provisions of the repealed Act as if that Act had not been repealed.

(4) Subject to the provisions of sub-section (3), all cases pertaining to unfair trade practices other than those referred to in clause (x) of sub-section (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement of this Act shall, on such commencement, stand transferred to the National Commission constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission shall dispose of such cases as if they were cases filed under that Act:

Provided that the National Commission may, if it considers appropriate, transfer any case transferred to it under this sub-section, to the concerned State Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986) and that State Commission shall dispose of such case as if it was filed under that Act.

(5) All cases pertaining to unfair trade practices referred to in clause (x) of sub-section (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India, and the Competition Commission of India shall dispose of such cases as if they were cases filed under that Act,

(6) All investigations or proceedings, other than those relating to unfair trade practices, pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India, and the Competition Commission of India may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.

(7) All investigations or proceedings, relating to unfair trade practices, other than those referred to in clause (x) of sub-section (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969(54 of 1969) and pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the National Commission constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.

(8) All investigations or proceedings relating to unfair trade practices referred to in clause (x) of subsection (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969(54 of 1969), and pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India and the Competition Commission of India may conduct or order for conduct of such investigation in the manner as it deems fit.

(9) Save as otherwise provided under sub-sections (3) to (8), all cases or proceedings pending before the Monopolies and Restrictive Trade Practices Commission shall abate.

(10) The mention of the particular matters referred to in sub-sections (3) to (8) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal.

Guardians and Wards Act

November 30, 2014

Chapter I – Preliminary

Section 1. Title, extent and commencement.

(1)This Act may be called the Guardians and Wards Act, 1890.

(2) It extends to the whole of India ¹[except the State of Jammu and Kashmir] ²[***]; ³[***].

(3) It shall come into force on the first day of July, 1890.

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1. Subs. by Act 3 of 1951, sec. 3 and Schedule, for “except Part B States’’.

2. Repealed by the A.O., 1948, for the words “inclusive of Brit­ish Baluchistan”.

3. The word “and” omitted by Act 40 of 1949, sec. 3 and Sch. II.

Section 2. (Repealed by the Repealing Act, 1938 (1 of 1938), sec. 2 and Schedule).

(Repealed by the Repealing Act, 1938 (1 of 1938), sec. 2 and Schedule)

Section 3. Saving of jurisdiction of Courts of Wards and Chartered High Courts.

This Act shall be read subject to every enactment here­tofore or hereafter passed relating to any Court of Wards by ¹[any competent Legislature, authority or person in ²[any State to which this Act extends]]; and nothing in this Act shall be construed to effect or in any way derogate from, the jurisdiction or authority of any Court of Wards, or to take away any power possessed by ³[any High Court ⁴[***]].

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1. Subs. by the A.O., 1937 for “the Governor-General in Council or by a Governor or Lieutenant-Governor in Council”.

2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “Part A States and Part C States”.

3. Subs. by the A.O., 1937, for “any High Court established under the Statutes 24 and 25 Victoria, Chapter 104 (an Act for estab­lishing High Courts of Judicature in India)”.

4. The words “established in Part A States and Part C States’’, omitted by Act 3 of 1951, sec. 3 and Sch.

Section 4. Definitions.

In this Act, unless there is something repugnant in the subject or context-

(1) “Minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority.

2. “Guardian” means minor for whose person or property or both there is a guardian.

3. “Ward” means a minor for whose person or property or both there is a guardian.

4. “District Court” has the meaning assigned to that expression in the code of Civil Procedure, 1882 (14 of 1882)¹, and includes a High Court in the exercise of its ordinary original civil jurisdiction,

²5. “The Court” means-

(a) The District Court having jurisdiction to entertain an application under

this Act for an order appointing or declaring a person to be a guardian, or

(b) Where a guardian has been appointed or declared in pursuance of any such application-

(i) The Court which, or the Court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian, or

(ii) In any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides, or

(a) In respect of any proceeding transferred under Section 4-A, the Court of the officer to whom such proceeding has been transferred.

(1) “Collector” means the chief officer in charge of the revenue-administration of a district and includes any officer whom the State Government, by notification in the official Gazette may, by name or in virtue of his office, appoint to be a Collector in any local area or with respected to any class of persons, for all or any of the purposes of this Act.

³[***]; and

(2) “Prescribed” means prescribed by rules made by the High Court under this Act.

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1. See now the Code of Civil Procedure, 1908 (5 of 1908).

2. Subs. by Act 4 of 1926, sec. 2, for the original clause (5).

3. Clause (7) omitted by Act 3 of 1951, sec. 3 and Schedule.

Section 4A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.

¹[4A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.—(1) The High Court may, by general or special order, empower any officer exercising original civil jurisdiction subordinate to a district court, or authorise the Judge of any District Court to empower any such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer under the provisions of this section.

2. The Judge of a district court may, by order in writing, transfer at any stage any proceeding under this Act pending in his Court for disposal to any officer subordinate to him empowered under sub-section (1).

3. The Judge of a district court may at any stage transfer to his own Court or to any officer subordinate to him empowered under sub-section (1) any proceeding under this Act pending in the Court of any other such officer.

4. When any proceedings are transferred under this section in any case in which a guardian has been appointed or declared, the Judge of the District Court may, by order in writing, declare that the Court of the Judge or officer to whom they are transferred shall, for all or any of the purpose of this Act, be deemed to the Court which appointed or declare the guardian.

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1. Ins. by Act 4 of 1936, sec. 3.

Chapter II – Appointment and Declaration of Guardians

Section 5. Power of parents to appoint in case of European British subjects.

(Rep. By the Part B States (Laws) Act, 1951 (3 of 1951), sec. 3 and Schedule.

Section 6. Saving of power of appoint in other cases.

In the case of a minor ¹[***], nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property or both, which is valid by the law to which the minor is subject.

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1.  The words “who is  not  an  European  British subject”, omitted by Act 3 of 1951, sec. 3 and Sch.

Section 7. Power of the Court to make orders as to guardianship.

(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made- Appointing a guardian of his person or property or both, or declaring a person to be such a guardian the Court may make an order accordingly.

An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

Where a guardian has been appointed by will or other instrument or appointed or declare by the Court, an order under this section appointing or declaring another person to be guardian in his stand shall not be made until the powers of the guardian appointed or declare as aforesaid have ceased under the provision of this Act.

Section 8. Persons entitled to apply for order.

An order shall not be made under the last foregoing section except on the application of the person desirous of being, or claiming to be, the guardian of the minor, or any relative of friend of the minor, or the Collector of the district or other local area within which the minor ordinarily resides or in which he has property, or the Collector having authority with respect to the class to which the minor belongs.

Section 9. Court having jurisdiction to entertain application.

(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

If the application is with respect of the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in the place where he has property.

If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly on conveniently by any other District Court having jurisdiction.

Section 10. Form of application.

(1) If the application is not made by he Collector, it shall be by petition signed and verified in manner prescribed by the Code of Civil Procedure, 1882 (14 of 1882),¹ for the signing and verification of a plaint, and stating, so far as can be ascertained-

the name, sex, religion, date of birth and ordinary residence of the minor,

where the minor is a female, whether she is married and if so, the name and age of her husband,

the nature, situation and approximate value of the property,if any, of the minor,

the name and residence of the person having the custody or possession of the person or property of the minor,

what near relations the minor has and where they reside,

whether a guardian of the person or property or both, of the minor has been appointed by any person entitled to claiming to be entitled by the law to which the minor is subject to make such an appointment

whether an application has at any time been made to the Court or to any there Court with respect to the guardianship of the person or property or both, of the minor and if so, when, to what Court and with what result,

whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both.

Where the application is to appoint a guardian, the qualifications of the proposed guardian.

Where the application is to declare a person to be a guardian, the grounds on which that person claims,

The cause which have led to the making of the application, and

Such other particulars, if any, as may be prescribed or as the nature of the application renders it necessary to state.

If the application is made by the Collector, it shall be by letter addressed to the Court forwarded by post or in such other manners as may be found convenient, and shall state as far as possible the particulars mentioned in sub-section (1).

The application must be accompanied by a declaration of the willingness of the proposed guardian to act, and the declaration must be signed by him and attested by at least two witnesses.

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1. See now the Code of Civil Procedure, 1908 (5 of 1908).

Section 11. Procedure on admission of application.

(1) If the court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof and cause notice of the application and of the date fixed for the hearing.

To be served in the manner directed in the Code of Civil Procedure, 1882 (14 of 1882) ¹on

the parents of the minor if they are residing in ²(any State to which this Act extends)

the person, if any, named in the petition or letter as having the custody or possession of

the person or property of the minor the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant, and

any other person to whim, in the opinion of the Court special notice of the applicant should be given, and to be posted on some conspicuous part of the court-house and of the residence of the minor, and otherwise published in such manner as the Court, subject to any rules made by the High Court under this Act, thinks fit.

The state Government may, by general or special order, require that when any part of the property described in a petition under sec. 10, sec-section (1) is land of which a Court of Wards could assume the superintendence, the Court shall also cause a notice as aforesaid to be served on the Collector in whose district the minor ordinarily resides and on every Collector in whose district any portion of the land is situate, and the Collector may cause the notice to be published in any manner he deems fit.

No charge shall be made by the Court or the Collector for the service or publication of any notice served or published under sub-section (2).

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1. See now the Code of Civil Procedure, 1908 (5 of 1908).

2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “a Part A State or a Part C State”.

Section 12. Power to make interlocutory order for production of minor and interim protection of person and property.

(1) The Court may direct that the person if any, having the custody of the minor, shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.

If the minor is a female who ought not to be compelled to appear in public, the claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or

Any person to whom the temporary custody and protection of the property if a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property

Section 13. Hearing of evidence before making of order.

On the day fixed for the hearing of the application or as soon afterwards as may be, the Court shall hear such evidence as may be adduced in support of or in opposition to the application.

Section 14. Simultaneous proceedings in different Courts.

(1) If proceedings for the appointment or declaration of a guardian of a minor are taken in more Courts than one, each of those courts shall, on being apprised of the proceedings in the order Court or Courts, stay the proceedings before itself.

¹In any other case in which proceedings are stayed under sub-section (1), the Courts shall report the case to and to guided by such orders as they may receive from their respective State Governments.

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1.  Subs. by the A.O. 1937, for the original sub-section (3).

Section 15. Appointment or declaration of several guardians.

(1) If the law to which the minor is subject admits of his having two or more joint guardians of his person or property or both, the Court may, if it thinks fit, appoint or declare them.

¹[***]

Separate guardians may be appointed or declared of the person and of the property of a minor.

If a minor has several properties, the Court may, if it thinks fit, appoint or declare a separate guardian for any one or more of the properties.

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1.  Sub-sections (2) and (3) omitted by Act 3 of 1951, sec. 3 and Sch.

Section 16. Appointment or declaration of guardian for property beyond jurisdiction of the Court.

If the Court appoints or declares a guardian for any property situate beyond the local limits of its jurisdiction, the court having jurisdiction in the place where the property is situate shall, on production of a certified copy of the order appointing or declaring the guardian accept him as duly appointed or declared and give effect to the order.

Section 17. Matter to be considered by the Court in appointing guardian.

(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

In considering what will be for the welfare of the minor, the Courts shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

If the minor is old enough to form an intelligent preference, the Court may consider that preference.

The Court shall not appoint or declare any person to be a guardian against his will.

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1. Sub-section (4) omitted by Act 3 of 1951, sec. 3 and Sch.

Section 18. Appointment or declaration of Collector in virtue of office.

Where a Collector is appointed or declared by the Court in virtue of his office to be guardian of the person or property or both, of a minor, the order appointing or declaring him shall be deemed to authorize and require the person for the time being holding the office to act as guardian of the minor with respect to his person or property or both, as the case may be.

Section 19. Guardian not to be appointed by the Court in certain cases.

Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person of a minor who is married female and whose husband is not, in the opinion of Court, unfit to be guardian of her person,

¹[***] of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor; or

(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

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1. The words “subject to the provisions of this Act with respect to European British subjects” omitted by Act 3 of 1951, sec. 3 and Sch.

Chapter III – Duties, Rights and Liabilities of Guardians

Section 20. Fiduciary relation of guardian to ward.

(1) A guardian stands in a fiduciary relation to his ward, and, save as provided by the will or other instrument, if any, by which he was appointed, or by his act, he must not make any profit out of his office.

The fiduciary relation of a guardian to his ward extends to and affects purchases by the guardian of the property of the ward, and by the ward of the property of the guardian, immediately or soon after the ward has ceased to be a minor and generally all transactions between them while the influence of the guardian still lasts or is recent.

Section 21. Capacity of minor to act as guardians.

A minor is incompetent to act as guardian of any minor except his own wife or child or where he is the managing member of an undivided Hindu family, the wife or child of another minor member of that family.

Section 22. Remuneration of guardian.

(1) A guardian appointed or declared by the Court shall be entitled to such allowances, if any, as the Court thinks fit for his care and pains in the execution of his duties.

(2) When an officer of the Government, as such officer, is so appointed or declared to be guardian, such fees shall be paid to the Government out of the property of the ward as the State Government, by general or special order, directs.

Section 23. Control of Collector as guardian.

A Collector appointed or declared by the Court to be guardian of the person or property or both, of a minor shall, in all matters connected with the guardianship of his ward, be subject to the control of the State Government or of such authority as that Government, by notification in the official Gazette, appoints in this behalf.

Section 24. Duties of guardian of the person.

A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.

Section 25. Title and guardian to custody of ward.

(1) if a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).

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1. See now section 97 of the Code of Criminal Procedure, 1973 (2 of 1974).

Section 26. Removal of ward from jurisdiction.

(1) A guardian of the person appointed or declared by the Court, unless he is the Collector or is a guardian appointed by will or other instrument, shall not, without the leave of the Court by which he was appointed or declared, remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed.

The leave granted by the Court under sub-section (1) may be special or general and may be defined by the order granting it.

Section 27. Duties of guardian of property.

A guardian of the property of a ward is bound to deal with as carefully as a man of ordinary prudence would deal with it, if it were his own and subject to the provisions of this Chapter, he may do all acts which are reasonable and proper for the realization, protection or benefit of the property

Section 28. Power of testamentary guardian.

Where a guardian has been appointed by will or the other instrument, his power to mortgage or charge, or transfer by sale, gift, exchange or otherwise, immovable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the Court which made the declaration permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable p

Section 29. Limitation of powers of guardian of property appointed or declared by the Court.

Where a person other than a Collector, or than a guardian appointed by will or other instruments, has been appointed or declared by the Court to be guardian of the property of award, he shall not, without the previous permission of the Court,- Mortgage or charge or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.

Section 30. Violability of transfers made in contravention of section 28 or section 29.

A disposal of immovable property by a guardian in contravention of either of the two last foregoing sections is violable at the instance of any other person affected thereby.

Section 31. Practice with respect to permitting transfer under section 29.

(1) Permission to the guardian to do any of the acts mentioned in section 29 shall not be granted by the Court except in case of necessity or for an evident advantage to the ward.

The order granting the permission shall recite the necessity or advantage, as the case may be, describe the property with respect to which the act permitted is to be done, and specify such conditions, if any, as the Court may see fit to attach to the permission, and it shall be recorded, dated and signed by the Judge of the Court with his own hand, or when from any cause he is prevented from recording the order with his own hand, shall be taken down in writing from his dictation and be dated and signed by him.

The Court may in its discretion attach to the permission the following among other conditions, namely:- That a sale shall not be completed without the sanction of the Court.

That a sale shall be made to the highest bidder by public auction before Court or some person specially appointed by the Court for that purpose, at a time and place to be specified by the Court, after such proclamation of the intended sale as the Court subject to any rules made under this Act by the High Court, directs,

That a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and convenience as the Court directs.

That the whole or any part of the proceeds of the act permitted shall be paid into the Court by the guardian, to be disbursed therefrom or to be invested by the Court on prescribed securities or to be otherwise disposed of as the Court directs.

Before granting permission to a guardian to do an act mentioned in section 29, the court may cause notice of the application for the permission to be given to any relative or friend of the ward who should, in its opinion, receive notice thereof, and shall hear and record the statement of any person who appears in opposition to the application

Section 32. Variation of powers of guardian of property appointed or declared by the Court.

Where a guardian of the property of a ward has been appointed or declared by the Court and such guardian is not the Collector, the Court may, form time to time, by order, define, restrict or extend his powers with respect to the property of the ward in such manner and to such extend as it may consider to be for the advantage of the ward and consistent with the law to which the ward is subject..

Section 33. Right of guardian so appointed or declared to apply to the Court for opinion in management of property of ward.

(1) A guardian appointed or declared by the Court may apply by petition to the Court which appointed or declared him for its opinion, advice or direction on any present question respecting the management or administration of the property of his ward.

If the Court considers the question to be proper for summary disposal, it shall cause a copy of the petition to be served on, and the hearing thereof may be attended by, such of the person interested in the application as the Court thinks fit.

The guardian sitting in good faith the facts in the petition and acting upon the opinion, advice or direction given by the Court shall be deemed, so far as regards his own responsibility, to have performed his duty as guardian in the subject-matter of the application.

Section 34. Obligations on guardian of property appointed or declared by the Court.

Where a guardian of he property of a ward has been appointed or declared by the Court and such guardian is not the Collector, he shall,- If so required by the Court, give a bond, as nearly as may be in the prescribed form, to the Judge of the Court to ensure for the benefit of the Judge for the time being, with or without sureties, as may be prescribed engaging duly to account for what he may receive in respect of the property of the ward.

If so required by the Court, deliver to the Court, within six months from the date of his appointment or declaration by the Court, or within such other time as the Court directs, a statement of the immovable property belonging to the ward, of the money and other movable property which he has received on behalf of he ward up to the date of delivering the statement, and of the debts due on that date to on from the ward.

If so required by the Court, exhibit his accounts in the Court at such times and in such form as the Court form time to time directs.

If so required by the Court, pay into the Court at such time as the Court directs the balance due from him on those accounts, or so much thereof as the Court directs, and

Apply for the maintenance, education and advancement of the ward and of such person as are dependent on him, and for the celebration of ceremonies to which the ward or any of those persons may be party, such portion of the income of the property of the ward as the Court from time to time directs, and , if the Court so directs, the whole or any part of that property

Section 34A. Power to award remuneration for auditing accounts.

¹[34A. Power to award remuneration for auditing accounts.—When accounts are exhibited by a guardian of the property of a ward in pursuance of a requisition made under clause (c) of section 34 or otherwise, the Court may appoint a person to audit the accounts, and may direct that remuneration for the work be paid out of the income of the property.

—————

1.  Ins. by Act 17 of 1929, sec. 2.

Section 35. Suit against guardian where administration-bond- was taken.

Where a guardian appointed or declared by the Court has given a bond duly to a account for what he may receive in respect of the property of his ward, the Court may, on application made by petition and on being satisfied that the engagement of the bond has not been kept, and upon such term as to security, or providing that any money received by paid into the Court, or otherwise as the Court thinks fit, assign the bond to some proper person, who shall thereupon the entitled to sue on the bond in his own name as if the bond had been originally given to him instead of to the Judge of the Court, and shall be entitled to recover thereon, as trustee for the ward, in respect of any breach thereof.

Section 36. Suit against guardian where administration-bon- was not taken.

(1) Where a guardian appointed or declared by the Court has not given a bond as aforesaid, any person, with the leave of the Court, may, as next friend, at any time during the continuance of the minority of the ward, and upon such terms as aforesaid, institute a suit against the guardian, or, in case of his death, against his representative, for an account of what the guardian has received in respect of the property of the ward, and may recover in the suit, as trustee for the ward, such amount as may be found to be payable by the guardian or his representative, as the case may be.

The provisions of such-section (1) shall, so far as they relate to a suit against a guardian, be subject to the provisions of section 4400 of the Code of Civil Procedure as amended by this Act, 1882 (14 of 1882).

—————

1.  See now Order XXXII, rules 1 and 4(2), in the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).

Section 37. General liability of guardian as trustee.

Nothing in either of the two last foregoing sections shall be construed to deprive a ward or his representative of any remedy against his guardian, or the representative of the guardian, which, not being expressly provided in either of those sections, any other beneficiary or his representative would have against his trustee or the representative of the trustee.

Section 38. Right of survivorship among joint guardians.

On the death of one of two or more joint guardians, the guardianship continues to the survivor or survivor until a further appointment is made by the Court.

Section 39. Removal of guardian.

The court may, on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely :- For abuse of his trust for continued failure to perform the duties of his trust, for incapacity to perform the duties of his trust, for ill-treatment, or neglect to take proper care, of his ward, for contumacious disregard of any provision of this Act or of any order of the Court, for conviction of an offence implying, in the opinion of the Court, a defect of character which unfits him to be the guardian of his ward.

For having an interest adverse to the faithful performance of his duties.

For ceasing to reside within the local limits of the jurisdiction of the Court.

In the case of a guardian of the property, for bankruptcy or insolvency, By reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject.

Provided that a guardian appoint by will or other instrument, whether he has been declared under this Act, or not, shall not be removed- For the cause mentioned in clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that person made and maintained the appointment In ignorance of the existence of the adverse interest, or for the cause mentioned in clause (h) unless such guardian has taken up such a residence as, in the opinion of the Court, renders it impracticable for him to discharge the functions of guardian

Section 40. Discharge of guardian.

(1) If a guardian appointed or declared by the Court desires to resign his office, he may apply to the Court to be discharged.

If the court finds that there is sufficient reason for the application, it shall discharge him, and if the guardian making the application is the Collector and the State Government approves of his applying to be discharged, the Court shall in any case discharge him

Section 41. Cessation of authority of guardian.

(1) The powers of a guardian of the person cease.- By his death, removal or discharge by the Court of wards assuming superintendence of the person of the ward, by the ward ceasing to be a minor in the case of a female ward, by her marriage to a husband who is not unfit to be guardian of her person or, if the guardian was appointed or declared by the Court, by her marriage to a husband who is not, in the opinion of the Court, so unfit, or in the case of a ward whose father was unfit to be guardian of the person of the ward, by the father ceasing to be so or, if the father was deemed by the Court to be so unfit, by his ceasing to be so in the opinion of the Court.

The powers of a guardian of the property cease- by his death, removal or discharge, by the Court of Wards assuming superintendence of the property of the ward, or by the ward ceasing to be a minor.

When for any cause the powers of a guardian cease, the Court may require him of, if he is dead, his representative to delivers as it directs any property in his possession or control belonging to the ward or any accounts in his possession or control relating to any past of present of the ward.

When he has delivered the property or accounts as required by the Court, the Court may declare him to be discharged from his liabilities save as regards any fraud which may subsequently be discovered

Section 42. Appointment of successor to guardian dead, discharged or removed.

When a guardian appointed or declared by the Court is discharged, or, under the law to which the ward is subject, ceases to be entitled to act, or when any such guardian or a guardian appointed by will or other instrument is removed or dies, the Court, of its own motion or on application under Chapter II, may, if the ward is still a minor, appoint or declare another guardian of his person or property, or both, as the case may be.

Chapter IV – Supplemental Provisions

Section 43. Orders for regulating conduct or proceedings of guardians, and enforcement of those orders.

(1) The Court may, on the application of any person interested or of its own motion, make an order regulating the conduct or proceedings of any guardian appointed or declared by the Court.

(2) Where there are more guardians than one of a ward and they are unable to agree upon a question affecting his welfare, any of them may apply to the Court for its direction, and the Court may make such order respecting the matter in difference as it thinks fit.

(3) Except where it appears that the object of making an order under sub-section (1) or sub-section (2) would be defeated by the day, the Court shall, before making the order, direct notice of the application therefor or of the intention of the Court to make it, as the case may be, to be given, in a case under sub-section (1), to the guardian or, in a case under sub-section (2), to the guardian who has not made the application.

(4) In case of disobedience to an order made under sub-section (1), or sub-section (2), the order may be enforced in the same manner as an injunction granted under section 492 or section 493 of the Code of Civil Procedure, 1882 (14 of 1882)¹, in a case under sub-section (1) as if the ward were the plaintiff and the guardian were the defendant or, in a case under sub-section (2), as if the guardian who made the application were the plaintiff and the other guardian were the defendant.

(5) Except in a case under sub-section (2), nothing in this section shall apply to a Collector who is, as such, a guardian.

————

1. See now Order XXXIX, rules 1 and 2 in the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).

Section 44. Penalty for removal of ward from jurisdiction.

If, for the purpose or with the effect of preventing the Court from exercising its authority with respect to a ward, a guardian appointed or declared by the Court removes the ward from the limits of the jurisdiction of the Court in contravention of the provisions of section 26, he shall be liable, by order of the Court, to fine not exceeding one thousand rupees, or to imprisonment in the civil jail for a term which may extend to six months.

Section 45. Penalty for contumacy.

(1) In the following cases, namely :- If a person having the custody of a minor fails to produce him or cause him to be produced in compliance with a direction under section 12, sub-section (1), or to do his utmost to compel the minor to return to the custody of his guardian in obedience to an order under section 25, sub-section (1),or

If a guardian appointed or declared by the Court fails to deliver to the Court, within the time allowed by or under clause (b) of section 34, a statement required under that clause, or to exhibit accounts in compliance with a requisition under clause (C) of that section, or to pay into the Court the balance due from him on those accounts in compliance with a requisition under clause (d) of that section.

If a person who has ceased to be guardian, or the representative of such a person, fails to deliver any property or accounts in compliance with a requisition under section 41, sub-section (3).

The person, guardian or representative, as the case may be, shall be liable, by order of the Court, to fine not exceeding one hundred rupees, and in case of recusancy to further fine not exceeding ten rupees for each day after the first during which the default continues, and not exceeding five hundred rupees in the aggregate, and to detention in the civil jail until the undertakes to produce the minor or cause him to be produced, or to compel his return, or to deliver the statement, or to exhibit the accounts, or to pay the balance, or to deliver the property or accounts, as the case may be.

If a person who has been released from detention on giving an undertaking under sub-section (1) fails to carry out the undertaking within the time allowed by the Court, the Court may cause him to be arrested and recommitted to the civil jail.

Section 46. Reports by Collectors and subordinate Courts.

(1) The Court may call upon the Collector, or upon any court subordinate to the court, for a report on any matter arising in any proceeding under this Act and treat the report as evidence.

For the purpose of preparing the report the Collector or the Judge of the subordinate Court, as he case may be, shall make such inquiry as he deems necessary, and may for the purposes of the inquiry exercise any power of compelling the attendance of witnesses to give evidence or produce a document which is conferred on a Court by the Code of Civil Procedure, 1882 (14 of 1882)¹

————

1.  See now the Code of Civil Procedure, 1908 (5 of 1908).

Section 47. Orders appeasable.

An appeal shall lie to the High Court from an order made by a ¹[***]Court- under Section 7, appointing or declaring or refusing to a appoint or declare a guardian, or under Section 9 sub-section (3) returning an application, or under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian, or under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto, or under Section 28 or section 29, refusing permission to a guardian to do an act referred to in the section, or under section 32, defining, restricting or extending the powers of a guardian, or under section 39, removing a guardian, or under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians or enforcing the order, or under section 44 or section 45, imposing a penalty.

—————

1.The word “district” repealed by Act 4 of 1926, sec. 4.

Section 48. Finality of others orders.

Save as provided by the last foregoing section and by section 622 of the Code of Civil Procedure, 1882 (14 of 1882)¹ an order made under this Act shall be final, and shall not be liable to be contested by suit or otherwise.

—————

1.  See now section 115 of the Code of Civil Procedure, 1908 (5 of 1908).

Section 49. Costs.

The costs of any proceeding under this Act, including the costs of maintaining a guardian or other person in the civil jail, shall, subject to any rules made by the High Court under this Act, be in the discretion of the court in which the proceeding is had.

Section 50. Power of High Court to make rules.

(1) In addition to any other power to make rules conferred expressly or implied by this Act, the High Court may from time to time make rules consistent with this Act- As to the matters respecting which, and the time at which, reports, should be called for from Collectors and subordinate Courts.

As to the allowances to be granted to, and the security to be required from, guardians, and the cases in which such allowances should be granted.

As to the procedure to be followed with respect to applications of guardians for permission to do acts referred to in section 28 and 29.

As to the circumstances in which such requisitions as are mentioned in clause (a), (b), (c) and (d) of section 34 should be made.

As to the preservation of statements and accounts delivered and exhibited by guardians.

As to the inspection of those statements and accounts by persons interested.

¹As to the audit of accounts under Section 34-A, the class of persons who should be appointed to audit accounts, and the scales of remuneration to be granted to them.

as to the custody of money, and securities for money, belonging to wards,

As to the securities on which money belonging to wards may be invested.

As to the education of wards for whom guardians, not being Collectors, have been appointed or declared by the Court, and

Generally, for the guidance of the Courts in carrying out the purposes of this Act.

Rules under clauses (a) and (I) of sub-section (1) shall not have effect until they have been approved by the ²(State Government) nor shall any rule under this section have effect until it has been published in the official Gazette.

—————

1.  Ins. by Act 17 of 1929, sec. 3.

2.  Subs. by A.L.O. 1950, for the words “Provincial Government”.

Section 51. Applicability of Act to guardians already appointed by Court.

A guardian appointed by, or holding a certificate of administration from, a Civil Court under any enactment repealed by this Act shall, save as may be prescribed, be subject to the provisions of this Act, and of the rules made under it, as if he had been appointed or declared by the Court under Chapter II.

Section 52. Amendment of Indian Majority Act.

(Rep. By the Repealing Act, 1938 (1 of 1938) section 2 and Schedule).

Section 53. Amendment of Chapter XXXI of the Code of Civil Procedure.

(Rep. By the code of Civil Procedure, 1908 ( 5 of 1908) section 156 and Sch. VI).

The schedule.

Enactment repealed.- (Rep. By the Repealing Act, 1938 (1 of 1938), section 2 and Schedule).

Representation of People Act

November 30, 2014

Section 1. Shot-title

(43 OF 1951)

[17th July, 1951]

An Act to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt ¹[***] practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.

BE it enacted by Parliament as follows:-

——————–

1. The words “and illegal” omitted by Act 27 of 1956, sec. 2.

This Act may be called the Representation of the People Act, 1951.

Section 2. Interpretation

(1) In this Act, unless the context otherwise requires,-

(a) Each of the expressions defined in section 2 or sub-section (1) of section 27 of the Representation of the People Act, 1950 (43 of 1950), but not defined in this Act, shall have the same meaning its in the Act;

(b) “Appropriate authority” means, in relation to an election to the House of the People or the Council of States ¹[***], the Central Government, and in relation to an election to the Legislative Assembly or the Legislative Council of a State, the State Government;

²[(bb) “Chief electoral officer” means the officer appointed under section 13A of the Representation of the People Act, 1950 (43 of 1950);]

(c) “Corrupt practice” means any of the practices specified in section 123 ³[***];

⁴[(cc) “District election officer” means the officer designated or nominated under section 13AA of the Representation of the People Act, 1950 (43 of 1950);]

(d) “Election” means an election to fill a seat or seats in either House of’ Parliament o in the House or either house of the Legislature of a State other than the State of Jammu and Kashmir ⁵[***];

⁶[(e) “Elector” in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950);]

⁷[(f) “Political party” means an association or a body of individual citizens of India registered with the Election Commission as a political party under section 29A;]

(g) “Prescribed” means prescribed by rules made under this Act;

⁸[(h) “Public holiday” means any day which is a public holiday for the purposes of section 25 of the Negotiable Instruments Act, 1881 (26 of 1881);]

⁹[*** ]

¹⁰[***]

¹¹[(i)] “Sign” in relation to a person who is unable to write his name means authenticate in such Banner as may be prescribed.

¹²[***]

¹³[*** ]

(2) For the purposes of this Act, ¹⁴[***] a Parliamentary constituency, an Assembly constituency, a Council constituency, a local authorities’ constituency, a graduates’ constituency and a teachers’ constituency shall each be treated as a constituency of a different class.

(3) Any requirement under this Act that a notification, order, rule, declaration, notice or list issued or made by any authority shall be published in the Official Gazette, shall, unless otherwise expressly provided in this Act, be construed as a requirement that the notification, order, rule, declaration, notice or list shall-

(a) Where it is issued or made by the Central Government, be published in the Gazette of India;

(b) Where it is issued or made by a State Government, be published in the Official Gazette of the State; and

(c) Where it is issued or made by any other authority, be published in the Gazette of India if it relates to an election to, or membership of, either House of Parliament ¹⁴[***] and in the Official Gazette of the State if it relates to an election to, or membership of, the House or either House of the Legislature of a State.

(4) Where under any of the provisions of this Act, anything is to be prescribed, different provisions may be made for different cases or classes of cases.

¹⁵ [***]

¹⁶[(5) Any reference in this Act to a law which is not in force in the State of Jammu and Kashmir shall, in relation to that State, be construed as a reference to the corresponding law, if any, in force in that State.]

¹⁵[***]

——————–

1 Certain words omitted by Act 103 of 1956, sec. 66.

2. Ins. by Act 27 of 1956, sec. 3.

3. The words and figures “or section 124” omitted by, sec. 3.

4. Ins. by Act 47 of 1966, sec. 15 (w.e.f. 14-12-1966).

5. Certain words omitted by Act 58 of 1958, sec. 14.

6. Subs. by Act 27 of 1956, sec. 3, for clause (e).

7. Clause (f) which was omitted by Act 27 of 1956, sec. 3 and ins. by Act 1 of 1989, see. 3 (w.e.f. 15-6-1989).

8. Ins. by Act 47 of 1966, sec. 15 (w.e.f. 14-12-1966).

9. Clauses (h) and (i) omitted by Act 27 of 1956, sec. 3.

10. Clause (i) re-lettered as clause (h) by Act 27 of 1956, sec. 3 and omitted by the Adaptation of Laws (No. 2) Order, 1956.

11. Clauses (k) and (i) re-lettered as clauses (i) and (k) by Act 27 of 1956, sec. 3.

12. Clause (j) ins. by Act 27 of 1956, sec. 3 and omitted by the Adaptation of Laws (No. 2) Order, 1956.

13. Clause (k) omitted by Act 47 of 1066, sec. 15 (w.e.f. 14-12-1966

14. Certain words omitted by Act 103 of 1956, sec. 66.

15. Subsections (5) and (7) omitted and subsection (6) renumbered as sub-section (5) by Act 27 of 1956, sec. 3.

16. Subs. by Act 47 of 1966, sec. 15, for sub-section (5).

Section 3. Qualification for membership of the Council of States

PART II

¹[QUALIFICATIONS AND DISQUALIFICATIONS]

Chapter I-Qualifications for Membership of Parliament

——————–

1. Subs. by Act 47 of 1966, sec. 16, for the previous heading (w.e.f. 14-12-1966).

¹[3. Qualification for membership of the Council of States

A person shall not be qualified to be chosen as a representative of any State ²[***] or Union territory in the Council of States unless he is an elector for a Parliamentary constituency in that State or territory.]

——————–

1. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for section 3.

2. The words and brackets “other than the State of Jammu and Kashmir” omitted by Act 47 of 1966, sec. 17 (w.e.f. 14-12-1966).

Section 4. Qualifications for membership of the House of the People

A person shall not be qualified to be chosen to fill a scat in the House of the People ¹[***]. unless-

(a) In the case of a seat reserved for the Scheduled Castes in any State, he is a member of any of the Scheduled Castes, whether of that State or of any other State, and is an elector for any Parliamentary constituency;

(b) In the case of a scat reserved for the Scheduled Tribes in any State (other than those in the autonomous districts of Assam), lie is a member of any of the Scheduled Tribes, whether of the State or of any other State (excluding the tribal areas of Assam), and is an elector for any Parliamentary constituency;

(c) In the case of a seat reserved for the Scheduled Tribes in the autonomous districts of Assam, he is a member of any of those Scheduled Tribes and is an elector for the Parliamentary constituency in which such seat is reserved or for any other Parliamentary constituency comprising any such autonomous district; ²[***]

³[(cc) In the case of the seat reserved for the Scheduled Tribes in the Union territory of ⁴[Lakshadweep], he is a member of any of those Scheduled Tribes and is all elector for the Parliamentary constituency of that Union territory; ⁵[***]

⁶[(ccc) In the case of the seat, allotted to the State of Sikkim, he is an elector for the Parliamentary constituency for Sikkim;]

(d) In the case of any other seat, he is all elector for any Parliamentary constituency.

——————–

1. Certain words omitted by Act 29 of 1975, sec. 12 (w.e.f. 15-8-1975).

2. The word “and” omitted by Act 47 of 1966, sec. 18 (w.e.f. 14-12-1966).

3. Ins. by Act 47 of 1966, sec. 18. (w.e.f. 14-12-1966)-

4. Subs. by the Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Adaptation of Laws Order, 1974 (w.e.f. 1-11-1973).

5. The word “and” omitted by Act 10 of 1976, sec. 2 and Sch. (w.e.f. 9-9-1975).

6. Ins. by Act 10 of 1976, sec. 2 and Sch. (w.e.f. 9-9-1975).

Section 5. Qualifications for membership of a Legislative Assembly

A person shall not be qualified to be chosen lo fill a seat in the Legislative Assembly of a State unless-

(a) In the case of a seat reserved for the Scheduled Castes or for the Scheduled Tribes of that State, he is i member of any of those castes or of those tribes, as the case may be, and is all elector for any Assembly constituency in that State;

(b) In the case of a seat reserved for all autonomous district of Assam, ¹[***] he is member of a ²[Scheduled Tribe of any autonomous districts] and is all elector for the Assembly constituency in which such scat or any other scat is reserved for that district; and

(c) In the case of any other seat, lie is all elector for any Assembly constituency in that State:

³[Provided that for the period referred to in clause (2) of article 371A, a person shall not be qualified to be chosen to fill any scat allocated to the Tuensang district in the Legislative Assembly of Nagaland unless lie is a member of the regional council referred to in that article.]

——————–

1. Certain words omitted by the North-Eastern Areas (Reorganisation) (Adaptation of Laws on Union Subjects) Order, 1974 (w.e.f. 21-1-1972).

2. Subs. by Act 47 of 1966, sec. 19, for “Scheduled Tribe of that district” (w.e.f. 14-12-1966).

3. Ins. by Act 27 of 1962, sec. 11

Section 5 A. Qualification for membership of Legislative Assembly of Sikkim

¹[Qualification for membership of Legislative Assembly of Sikkim. ²[(1)] Notwithstanding anything contained in section 5, a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State duly constituted under the Constitution) unless-

(a) In the case of a scat reserved for Sikkimese of Bhutia-Lcpcha origin, he is a person either of Bhutia or Lepcha origin and is an elector for any Assembly constituency in the State other than the constituency reserved for the Sanghas;

(b) In the case of a scat reserved for Sikkimese of Nepali origin, he is a person of Nepali origin and is an elector for any Assembly constituency in the State;

(c) In the case of a seat reserved for Scheduled Castes, he is a member of any of the castes specified in the Representation of Sikkim Subjects Act, 1974 and is an elector for any Assembly constituency in the State; and

(d) In the case of a seat reserved for Sanghas, he is an elector of the Sangha constituency.]

³[(2) Notwithstanding anything contained in section 5, a person shall not be qualified to be chosen to fill a scat in the Legislative Assembly of the State of Sikkim, to be constituted at any time after the commencement of the Representation of the People (Amendment) Act, 1980 (8 of 1980), unless-

(a) In the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, he is a person either of Bhutia or Lepcha origin and is and elector for any Assembly constituency in the State other than the constituency reserved for the Sanghas;

(b) In the case of a seat reserved for Scheduled Castes, he is a member of any of those castes in the State of Sikkim and is an elector for any Assembly constituency in the State;

(c) In the case of a seat reserved for Sanghas, he is an elector of the Sangha constituency; and

(d) In the case of any other seat, he is an elector for any Assembly constituency in the State.

Explanation.In this sub-section “Bhutia” includes Chunibipa, Dopthapa ,Dukpa, Kagatey, Sherpa, Tibetan, Tromopa and Yolimo.]

——————–

1. Ins. by Act 10 of 1976, sec. 2 and Sch. (w.e.f 9-9-1975).

2. Section SA renumbered as sub-section (1) of that section by Act 8 of 1980, sec. 3 (w.e.f. 1-9-1979).

3. Ins. by Act 8 of 1980, sec. 3 (w.e.f. 1-9-1979).

Section 6. Qualifications for membership of a legislative Council

(1) A person shall not be qualified to be chosen to fill a scat in the Legislative Council of a State to be filled by election unless he is an elector for any Assembly constituency in that State.

A person shall not be qualified to be chosen to fill a scat in the Legislative Council of a State to be filled by nomination by the Governor ¹[***] unless he is ordinarily resident in the State.

——————–

1. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.

Section 7. Definitions

¹[Chapter III.Disqualifications for Membership of Parliament and State legislatures

——————–

1. Subs. By Act 47 of l966, sec. 20, for Chapter III (w.e.f. 14-2-1966)

Section 7. Definitions.

In this Chapter,-

(a) “Appropriate Government” means in relation to any disqualification for being chosen as or for being a member of either House of Parliament, the Central Government, and in relation to any disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative Council of a State, the State Government;

(b) “Disqualified” means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.

Section 8. Disqualification on conviction for certain offences

¹[(1) A person convicted of an offence punishable under-

(a) Section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171 F (offence of undue influence or personation at an election) or sub-section (l) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or subsection (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) or the Indian Penal Code (45 of 1860), or

(b) The Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the preaching and practice of “untouchability”, and for the enforcement of any disability arising therefrom; or

(c) Section 11 (offence of importing or exporting prohibited goods) or the Customs Act, 1962 (52 of 1962); or

(d) Sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or

(e) The Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or

(f) The Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or

(g) Section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(h) Section 7 (offence of contravention of the provisions of section 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or

(i) Section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) or clause (a) of sub-section (2) of section 13 6 (offence of Fraudulently defacing or fraudulently destroying any nomination paper) of this Act; 2[or]

²[(j) Section 6 (offence of conversion of a place or worship) of the Places of Worship (Special Provisions) Act 1991], 3[or]

⁴[(k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971);] ⁷[ or]

⁷[(l) the Commission of Sati (Prevention) Act, 1987(3 of 1988.); or

(m) the Prevention of Corruption Act, 1988;( 49 of 1988) or

(n) the Prevention of Terrorism Act, 2002(15 of 2002.)]

“shall be disqualified, where the convicted person is sentenced to—

(i) only fine, for a period of six years from the date of such conviction;

(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release]

(2) A person convicted for the contravention of-

(a) Any law providing for the prevention of hoarding or profiteering- or

(b) Any law relating to the adulteration of food or drugs; or

(c) Any provisions of the Dory Prohibition Act, 1961 (28 of 1961);

⁸[* * *]

(3) A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

⁵[(4)] Notwithstanding anything 6[in sub-section (1). subsection 2 and subsection (3)] a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision Is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.

Explanation. In this section-

(a) “Lawprovidingforthepreveiitionofhoardingorprofitecrilig”meansanylaw,

Or any order, rule or notification having the force of law, providing for-

(i) The regulation of production or manufacture of any essential commodity;

(ii) The control of price at which any essential commodity may be brought or sold;

(iii) The regulation of acquisition, possession, storage, transport, distribution, Disposal, use or consumption of any essential commodity;

(iv) The prohibition of the withholding from sale of any essential commodity Ordinarily kept for sale-,

(b) “Drug” has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of 1940);

(c) “Essential commodity” has the meaning assigned to it in the Essential Commodities Act, 1955 (10 of 1955);

(d) “Food” has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of 1954).

——————–

1. Subs. by Act 1 of 1980, sec. 4, for subsections (1) and (2) (w.e.f. 15-3-1989)

2. Ins. by Act 42 of 1991, sec. 8 (w.e.f. 18-9-1991).

3. Added by Act 21 of 1996, sec. 3 (w.e.f. 1-9-1996).

4. Ins. by Act 21 of 1996, sec. 3 (w.e.f 1-8-1 996).

5. Sub-section (3) renumbered as sub-section (4) by Act 1 of 1989, sec. 4 (w.e.f. 15-3-1989).

6. Subs. by Act I of 1989, sec. 4, for “in sub-section (1) and sub-section (2)” (w.e.f. 15-3-1999)

7. Inserted By Act 9 of 2003(dt.7-1-2003).

8. Clause “d” Omitted By Act 9 of 2003 (dt. 7-1-2003).

Section 8 A. Disqualification on ground of corrupt practices

¹Disqualification on ground of corrupt practices. (1) The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted, ²[as soon as may be within a period of three months from the date such order takes effect], by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period:

Provided that the period for which any person may be disqualified under this subsection shall in no case exceed six years from the date on which the order made in relation to him under section 99 takes effect.

(2) Any person who stands disqualified under section 8A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), may, if the period of such disqualification has not expired, submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period.

(3) Before giving his decision on any question mentioned in sub-section (1) or on any petition submitted under sub-section (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion.]

——————–

1. Subs. by Act 40 of 1975, sec. 2.

2. Subs. by Act 41 of 2009 w.e.f. 22.12.2009.

Section 9. Disqualification for dismissal for corruption or disloyalty

(1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal.

(2) For the purposes of sub-section (1), a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of a State, has or has not been dismissed for corruption or for disloyalty to the State shall be conclusive proof of that fact:

Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty to the State shall be issued unless all opportunity of being heard has been given to the said person.

Section 9 A. Disqualification for Government contracts, etc

A person shall be disqualified if, and torso long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government.

Explanation. For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part.

Section 10. Disqualification for office under Government company

A person shall be disqualified if and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the capital of which the appropriate Government has not less than twenty-five percent share. .

Section 10 A. Disqualification for failure to lodge account of election expenses

If the Election Commission is satisfied that a person-

(a) Has failed to lodge an account of election expenses, within the time and in the manner required by or under this Act, and

(b) Has no good reason or justification for the failure,

The Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.

Section 11. Removal or reduction or period of disqualification

The Election Commission may, for reasons to be recorded, remove any disqualification under this Chapter ¹[(except under section 8A)] or reduce the period of any such disqualification.

——————–

1. Ins. by Act 40 of 1975, sec. 3.

Section 11 A. Disqualification arising out of conviction and corrupt practices

¹[(1)] If any person, after the commencement of this Act,-

²[***] is convicted of an offence punishable under section 171E or section 171 F of the Indian Penal Code (45 of 1860), or under section 125 or section 135 or clause (a) of subsection (2) of section 136 of this Act,

³[***]

He shall, for a period of six years from the date of the conviction or from the date on which the order takes effect, be disqualified for voting at any election.

⁴(2) Any person disqualified by a decision of the President under sub-section (1) of section 8A for any period shall he disqualified for the same period for voting at any election.

(3) The decision of the President on a petition submitted by any person under subsection (2) of section 8A in respect of any disqualification for being chosen as, and for being, a member of either House of’ Parliament or of the Legislative Assembly or Legislative Council of a State shall, so for as may be, apply in respect of the disqualification for voting at any election incurred by him under clause (b) of sub-section (1) of section IIA of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), as if such decision were a decision in respect of the said disqualification for voting also.]

——————–

1. Section IIA renumbered as subsection (1) of that section by Act 40 of 1975, sec.

2. The brackets and letter “(a)” omitted by Act 38 of 1978, sec. 3 and the Second Schedule.

3. the word “or” omitted by Act 38 of 1978, sec. 3 and the Second Schedule.

4 Clause (b) omitted by Act 40 of 1975, see. 4.

Section 11 B. Removal of disqualifications

The Election Commission may, for reasons to be recorded, remove ¹[any disqualification under subsection (1) of section IIAI.]

——————–

1. Subs. by Act 40 of 1975, sec. 5, for certain words.

Section 12. Notification for biennial election to the Council of States

¹[PART III

NOTIFICATION OF GENERAL ELECTIONS

——————–

1. Subs. by Act 27 of 1956, sec. 7, for Part III (sections 12 to 18).

Section 12. Notification for biennial election to the Council of States.

For the purpose of filling the seats of members of the Council of States retiring on the expiration of their term of office the President shall by one or more notifications published in the Gazette of India on such date or dates as may be recommended by the Election Commission, call upon the elected members of the Legislative Assembly or as the case may be, the members of the electoral college, of each State concerned to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:

Provided that no notification under this section shall be issued more than three months prior to the date on which the term of office of the retiring members is due to expire.

Section 12 A. Notification for election to rill the seat allotted to the State of Sikkim in the Council of States

¹[Notification for election to rill the seat allotted to the State of Sikkim in the Council of States. For the purpose of filling for the first time the seat allotted to the State of Sikkim by the Constitution (Thirty-sixth Amendment) Act, 1975 in the Council of States, the President shall, by notification published in the Gazette of India, on such date as may be recommended by Election Commission, call upon the elected members of the Legislative Assembly of the State of Sikkim to elect a member in accordance with the provisions of this Act and of the rules and orders made thereunder and the election so held shall for all purposes and intent be deemed to have been held under section 12.]

——————–

1. Ins. by Act 10 of 1976, sec. 2 and Sch. (w.e.f. 9.9.1975).

Section 13. Notification for reconstitution of electoral colleges of certain Union territories

Rep. by the Territorial Councils Act, 19-56 (10-3 of 1956), sec. 661

Section 14. Notification for general election to the House of the People

(1) A general election shall be held for the purpose of constituting a new House of the People on the expiration of the duration of the existing House or on its dissolution.

(2) For the said purpose the President shall, by one or more notifications published in the Gazette of India on such date or dates as may be recommended by the Election Commission call upon all Parliamentary constituencies to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:

Provided that where a general election is held otherwise than on the dissolution of the existing House of’ the People, no such notification shall he issued at any time earlier than six months prior to the date on which the duration of that House would expire under the provisions of clause (2) of article 83.

Section 14 A. Notification for electing the representative of the State or Sikkim to the existing House of the People

¹Notification for electing the representative of the State or Sikkim to the existing House of the People. For the purpose of electing a representative of the State of Sikkim to the House of the People, specified in clause (e) of article 371F of the Constitution, the Election Commission shall call upon the members of the Legislative Assembly of the State of Sikkim to elect the representative in accordance with such of the provisions of this Act, and the rules and orders make thereunder, as are applicable to the election of the members of the Council of States.]

——————–

1. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.

Section 15. Notification for general election to a State Legislative Assembly

(1) A general election shall be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution.

(2) For the said purpose, ¹[the Governor or Administrator, as the case may be], ²[* * *] shall by one or more notifications published in the Official Gazette of the State on such date or dales may be recommended by the Election Commission, call upon all Assembly constituencies in the State to elect members in accordance with the provisions of this Act and of the rules and order made thereunder:

Provided that where a general election is held otherwise than on the dissolution of the existing Legislative Assembly, no such notification shall be issued at any time earlier than six months prior to the date on which the duration of that Assembly would expire under the provisions of clause (I) of article 171 ²[***] ³[or under the provisions of section 5 of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be.]

——————–

1. Subs. by Act 20 of 1963, sec. 57 and the Second Schedule for “the Governor”.

2. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.

3. Ins. by Act 20 of 1963, sec. 57 and the Second Schedule.

Section 15 A. Notification for certain elections to Legislative Councils

¹[Notification for certain elections to Legislative Councils. For the purpose of constituting the Legislative Council of the State of Madhya Pradesh under the State Reorganisation Act, 1956 (37 of 1956) and constituting the Legislative Council of the State of Andhra Pradesh under the Legislative Councils Act, 1957 (37 of 1957), the Governor of each of the aforesaid States shall, by one or more notifications published in the Official Gazette of the State on such date or dates as may be recommended by the Election Commission, call upon the members of the Legislative Assembly of the State and all the Council constituencies to elect members in accordance with the provisions of’ this Act and of the rules and orders made thereunder.]

——————–

1. Ins. by Act 37 of 1957, sec. 13.

Section 16. Notification for biennial election to a State Legislative Council

For the purpose of filling the seats of members of the Legislative Council of a State retiring on the expiration of their term of office, the Governor ¹[***] shall, by one or more notifications published in the Official Gazette of the State on such date or dates as may be recommended by the Election Commission call upon the members of the Legislative Assembly of the State and all the Council constituencies concerned to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:

Provided that no notification under this section shall be issued more than three months prior to the date on which the term of office of the retiring members is due to expire.]

——————–

1. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.

Section 19. Definition

In this Part and in Part V, unless the context otherwise requires, “constituency” means ¹[***] a Parliamentary constituency or an Assembly constituency or a Council constituency

——————–

1. Certain words omitted by Act 103 of 1956, sec. 66.

Section 19 A. Delegation of functions of Election Commission

¹Delegation of functions of Election Commission. The functions of the Election Commission under the Constitution, the Representation of the People Act, 1950 (43 of 1950) and this Act or under the rules made thereunder may, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, be performed also by a Deputy Election Commissioner or by the Secretary to the Election Commission.]

——————-

1. Ins. by Act 47 of l966, sec. 21 (w.e.f 14-12-1966).

Section 20. General duties of chief electoral officers

¹[General duties of chief electoral officers. Subject to the superintendence, direction and control of the Election Commission, the chief electoral officer of each State shall supervise the conduct of all elections in the State under this Act.

——————–

1. Subs. by Act 27 of 1956, sec. 9, for sections 20 and 21.

Section 20 A. General duties of district election officer

¹[General duties of district election officer. (1) Subject to the superintendence, direction and control of the chief electoral officer, the district election officer shall co-ordinate and supervise all work in the district or in the area within his jurisdiction in connection with the conduct of all elections to parliament and the Legislature of the State

(2) The district election officer shall also perform such other functions as may be entrusted to him bv the Election Commission and the chief electoral officer.]

——————–

1. Ins. by Act 47 of 1966, sec. 22 (w.e.f 14-12-1966).

Section 20 B. Observers

¹[Observers. (1) The Election Commission may nominate an Observer who shall be an officer of Government to watch the conduct of election or elections in a constituency or a group of constituencies and to perform such other functions as may be entrusted to him by the Election Commission.

(2) The Observer nominated under sub-section (1) shall have the power to direct the retuning officer for the constituency or for any of the constituencies for which he has been nominated, to stop the counting of votes at any time before the declaration of the result or not to declare the result if in the opinion of the Observer booth capturing has taken place at a large number of polling stations or at places fixed for the poll or counting of votes or any ballot papers used at a polling station or at a place fixed for the poll are unlawfully taken out of the custody of the returning officer or are accidentally or intentionally destroyed or lost or are damaged or tampered with to such an extent that the result of the poll at that polling station or place cannot be ascertained.

(3) Where an Observer has directed the returning officer under this section to stop counting of votes or not to declare the result, the Observer shall forthwith report the matter to the Election Commission and thereupon the Election Commission shall, after taking all material circumstances into account, issue appropriate directions under section 58A or section 64A or section 66.

Explanation. For the purposes of sub-section (2) and sub-section (3) “Observer” the shall include a Regional Commissioner or any such officer of the Election Commission as has been assigned under this section the duty of watching the conduct of election or elections in a constituency or group of constituencies by the Commission.]

——————–

1. Ins. by Act 21 of’ 1996, sec. 4 (w.e.f 1-8-1996)

Section 21. Returning officers

For every constituency, for every election to fill a sea or seats in the Council of States and for every election by the members of the Legislative Assembly of a State to fill a seat or seats in the Legislative Council of the State, the Election Commission shall, in consultation with the Government of the State, designate or nominate a returning officer who shall be ¹[an officer of Government or of a local authority]:

Provided that nothing in this section shall prevent the Election Commission from designating or nominating the same person to be the returning officer for more than one constituency.

——————–

1. Subs. by Act 47 of 1966, sec. 23, for “an officer of Government”.

Section 22. Assistant returning officers

(1) The Election Commission may appoint one or more persons to assist any returning officer in the performance of his functions:

Provided that every such person shall be ¹[an officer of Government or of a local authority]

(2) Every assistant returning officer shall, subject to the control of the returning officer, be competent to perform all or any of the functions of the returning officer-.

Provided that no assistant returning officer shall perform any of the functions of the returning officer which relate ³[***] to the scrutiny of nominations ²[***] unless the returning officer is unavoidably prevented from performing the said function

——————–

1. Subs. by Act 47 of 1966, sec. 24, for “an officer of Government”.

2. Certain words omitted by Act 27 of 1956, sec. 10.

3. The words “or to the counting of votes” omitted by Act 27 of 1956, sec. 10.

Section 23. Returning officer to include assistant returning officers performing the functions of the returning officer

References in this Act to the returning officer shall, unless the context otherwise requires, be deemed to include an assistant returning officer performing any function which he is authorized to perform under sub-section (2) of section 22.

Section 24. General duty of the returning officer

It shall be general duty of the returning officer at any election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by this Act and rules or orders made there under

Section 25. Provision of polling stations for constituencies

¹[Provision of polling stations for constituencies. The district election officer shall, with the previous approval of the Election Commission, provide a sufficient number of polling stations for every constituency the whole or greater part of which lies within his jurisdiction, and shall publish, such manner as the Election Commission may direct, a list showing the polling stations so provided and the polling areas or groups of voters for which they have respectively been provided.]

——————–

1. Subs. by Act 47 of 1966, sec. 25, for section 25 (w.e.f. 14-12-1966).

Section 26. Appointment of presiding officers for polling stations

(1) The ¹[district election officer] shall appoint a presiding officer for each polling station and such polling officer or officers as he thinks necessary, but he shall not appoint any person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election:

Provided that if a polling officer is absent from the poll’ station, the presiding officer may appoint any person who is present at the polling station other than a person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election, to be the polling officer during the absence of the former officer, and inform the ¹[district election officer] accordingly:

³[Provided further that nothing in this sub-section shall prevent that ⁴[district election officer] from appointing the same person to be the presiding officer for more than one polling station in the same premises.]

(2) A polling officer shall, if so directed by the presiding officer, perform all or any of the function of a presiding officer under this Act or any rules or orders made thereunder.

(3) If the presiding officer, owing to illness or other unavoidable cause, is obliged to absent himself from the polling station, his functions shall be performed by such polling officer as has been previously authorised by the ⁴[district election officer] to perform such functions during any such absence.

(4) References in this Act to the presiding officer shall, unless the contest otherwise requires, be deemed to include any person performing ally function which he is authorised to perform under subsection (2) or sub-section (3), as the case may be.

⁵[(5) Any reference to a district election officer in section 25 and in this section shall, in relation to a constituency in a Union territory, be construed as a reference to the returning officer for that constituency]

——————–

1. Subs. by Act 47 of 1966, sec. 26, for “returning officer” (w.e.f 14-12-1966).

3. Ins. by Act 27 of 1956, sec. 12.

4. Subs. By Act 47 of 1966, sec 26, for “returning officer” (w.e.f. 14-12-1966)

5. Ins. by Act 47 of 1966, sec. 26 (w.e.f. 14-12-1966).

Section 27. General duty of the presiding officer

It shall be the general duty of the presiding officer at a polling station to keep order thereat and to see that the poll is fairly taken.

Section 28. Duties of a polling officer

It shall be the duty of the polling officers at a polling station to assist the presiding officer for such station in the performance of his frictions.

Section 28 A. Returning officer, presiding officer, etc., deemed to be on deputation to Election Commission

¹[Returning officer, presiding officer, etc., deemed to be on deputation to Election Commission. The returning officer, assistant returning officer, presiding officer, polling officer and an other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.]

——————–

1. Ins. by Act I of 1989, sec. 5 (w.e.f. 15-3-1989).

Section 29. Special provisions in the case of certain elections

(1) The returning officer for an election ¹[***] to fill a seat or seats in the Council of States or for an election by the members of the Legislative Assembly of a State to fill a seat or scats in the Legislative Council of the State shall with the previous approval of the Election Commission, fix the place at which the poll will be taken for such election and shall notify the place so fixed in such manner as the Election Commission may direct.

(2) The returning officer shall preside over such election at the place so fixed and shall appoint such polling officer or officers to assist him as he thinks necessary but he shall not appoint any person who has been employed by or on behalf of, or has been otherwise working for. a candidate in or about the election.

——————–

1. Certain words omitted by Act 27 of 1956, sec. 13.

Section 29 A. Registration with the Election Commission of associations and bodies as political parties

¹[PART IVA

REGISTRATION OF POLITICAL PARTIES

——————–

1. Ins. by Act I of 1989, sec. 6 (w.e.f. 15-6-1989).

Section 29A. Registration with the Election Commission of associations and bodies as political parties

(1) Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of this Part shall make an application to the Election Commission for its registration as a political party for the purposes of this Act.

(2) Every such application shall be made,-

(a) If the association or body is in existence at the commencement of the Representation of the People (Amendment) Act, 1988 (1 of 1989), within sixty days next following such commencement;

(b) If the association or body is formed after such commencement, within thirty days next following the date of its formation.

(3) Every application under subsection (1) shall be signed by the chief executive officer of the association or body (whether such chief executive officer is known as Secretary or by any other designation) and presented to the Secretary to the Commission or sent to such Secretary by registered post.

(4) Every such application shall contain the following particular, namely:-

(a) The name of the association or body;

(b) The State in which its head office is situate;

(c) The address to which letters and other communications meant for it should be sent;

(d) The names of its president, secretary, treasurer and other officer-bearers;

(e) The numerical strength of its members, and if there are categories of its members, the numerical strength in each category;

(f) Whether it has any local units; if so, at what levels;

(g) Whether it is represented by any member or members in either House of Parliament or of any State Legislature; if so, the number of such member or members.

(5) The application under subsection (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.

(6) The Commission may call for such other particulars as it may deem fit from the association or body.

(7) After considering all the particulars as a foresaid in its possession and any other necessary and relevant factors and after giving the representatives of the association or body reasonable opportunity of being heard, the Commission shall decide either to register the association or body as a political party for the purposes of this Part, or not so to register it; and the Commission shall communicate its decision to the association or body:

Provided that no association or body shall be registered as a political party under

This sub-section unless the memorandum or rules and regulations of such association or body conform to the provisions of sub-section (5).

(8) The decision of the Commission shall be final.

(9) After an association or body has been registered as apolitical party as aforesaid, any change in its name, head office, office-bearers, address or in any other material matters shall be communicated to the Commission without delay.

Section 30. Appointment of dates for nominations, etc

¹[Appointment of dates for nominations, etc. As soon as the notification calling upon a constituency to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint-

(a) The last date for making nominations, which shall be the ²[seventh day] after the date of publication of the first mentioned notification or if that day is a public holiday, the next succeeding day which is not a public holiday;

(b) The date for the scrutiny of nominations, which shall be ³[the day immediately following] the last date for making nominations or, if that day is public holiday, the next succeeding day which is not a public holiday;

(c) The last date for the withdrawal of candidatures, which shall be ⁴[the second day] after the date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day that is not a public holiday;

(d) The date or dates on which a poll shall, if necessary, be taken which or the first of which shall be a date not earlier than the ⁵[fourteenth day] after the last date for the withdrawal of candidatures, and

(e) The date before which the election shall be completed.

⁶[***]

——————–

1. Subs. by Act 27 of 1 956, sec. 14, for section 30.

2. Subs. by Act 40 of 1961, sec. 7, for “tenth day” (w.e.f 20-9-1961).

3. Subs. by Act 47 of’ 1966, sec. 27, for “the second day after” (w.e.f 14-12-1966)

4. Subs. by Act 47 of’ 1966, sec. 27, for “the third day” (w.e.f. 14-12-1966)

5. Subs. by Act 21 of 1996, sec. 5 (w.e.f 1-8-1996).

6. Explanation omitted by Act 47 of 1966, sec. 27 (w.e.f 14-12-1966).

Section 31. Public notices of election

On the issue of a notification under section 30 the returning ¹[***] shall give public notice of the intended election in such form and manner as may be prescribed, inviting nominations of candidates for such election and specifying the place at which the nomination papers are to be delivered.

——————–

1. The words “for the constituency” omitted by Act 47 of 1966, sec. 28 (w.e.f 14-12-1966).

Section 32. Nomination of candidates for election

Any person may be nominated as a candidate for election to fill a seat ¹[***] if he is qualified to be chosen to fill that seat under the provisions of Constitution and this Act ²[***] ³[or under the provisions of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be].

——————–

1. The words “in any constituency” omitted by Act 27 of 1956- sec. 15.

2. Certain words ins. by Act 27 of l956, sec 15 and omitted by the Adaptation of Laws (No. 2) Order, 1956.

3. Ins. by Act 20 of’ 1963, sec. 57 and Second Sch

Section 33. Presentation of nomination paper and requirements for a valid nomination

¹[Presentation of nomination paper and requirements for a valid nomination. (1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer between the hours of eleven O’clock in the forenoon and three O’clock in the afternoon deliver to the returning officer at the place specified in the behalf in the notice issued under section 3l a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer-.

²[Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposes being electors of the constituency:

Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday:

Provided also that in the case a local authorities constituency, graduates’ constituency or teachers’ constituency, the reference to “an elector of the constituency as proposer” shall be construed as a reference to ten per cent of the electors of the constituency or ten such electors., whichever is less, as proposes.]

³[(1A) Notwithstanding anything contained in sub-section (1), for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State only constituted under the Constitution), the nomination paper to be delivered to the returning officer shall be in such form and manner as may be prescribed:

Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and-

(a) In the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, also by at least twenty electors of the constituency as proposes and twenty electors of the constituency as scolders;

(b) In the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposes and at least twenty electors of the constituency as seconders;

(c) In the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the constituency as proposer:

Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday]

(2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.

(3) Where the candidate is a person who, having held any office referred to in ⁴[section 9] has been dismissed and a period of five years has not elapsed since the dismissal. such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued ‘in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.

(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper arc the same as those entered in the electoral rolls:

⁵[Provided that no misnomer or inaccurate description or clerical technical or printing error in regard to the name of the candidate or his proposer or any other person., or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper. shall affect the full operation of the electoral roll or the nomination. paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood, and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or In the nomination paper shall be overlooked.]

(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall- unless it has been filed along with the nomination paper, be produced before the return officer at the time of scrutiny.

⁶[(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper :

Provided that not more than four nomination papers shall be presented bv or on behalf of any candidate or accepted by the retuning officer for election in the same constituency

⁷[(7) Notwithstanding, anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election,-

(a) In the case of a general election to the House of the People (whether or not field simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;

(b) In the case of general election to the Legislative Assembly of a State (whether or not hold simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State,.

(c) In the case of a general election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State;

(d) In the case of a biennial at election to the Council of States for filling o or more seats allotted to a State, for filling more than two such seats,

(e) In the case of bye-elections to the House of the People from two or more Parliamentary constituencies which are held simultaneously-from more than two such Parliamentary constituencies-,

(f) In the case of bye-elections to the Legislative Assembly of a State from or more Assembly constituencies which arc held simultaneously, from more than two such Assembly constituencies-,

(g) In the case of bye-elections to the Council of States for filling two or more scats allotted to a State which are held simultaneously, for filling more than two such scats”

(h) In the case of bye-elections to the Legislative Council of a State having such Council from two or more Council constituencies, which are held simultaneously, from more than two such Council constituencies.

Explanation. For the purpose of this sub-section, two or more bye-elections shall be deemed to be held simultaneously where the notification calling such bye-elections are issued by the Election Commission under sections 147, 149, 150 or, as the case may be, 151 on the same date.

——————–

1. Subs. by Act 27 of 1956, sec. 16, for section 3.

2. Subs. by Act 21 of 1996, sec. 6 (w.e.f. 1-8-1996).

3. Ins. by Act 10 of l976, sec. 2 and Sch. (w.e.f. 9-9-1975).

4. Subs. by Act 38 of 1978, sec. 3 and the Second Schedule, for “Clause (f) of section 7”.

5. Subs. by Act 47 of 966, sec. 29, for the proviso (w.e.f.14-12-1966).

6. Subs. by Act 40 of’ 1961, sec. 8, for subjection (6) (w.e.f. 20-9-1961)

7. Ins. by Act 21 of 1996, sec. 6 (w.e.f’, 1-8-1996).

Section 34. Deposits

¹[(1) A candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited, -

(a) In the case of all election from a Parliamentary constituency, ³[a sum of twenty-five thousand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of twelve thousand five hundred rupees]; and

(b) In the case of an election from all Assembly or Council constituency, ⁴[a sum of ten thousand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of five thousand rupees]-.

Provided that where a candidate has been nominated by more than one nomination paper for election in the same constituency, not more than one deposit shall be required of him under this sub-section.]

(2) Any sum required to be deposited under sub-section (1) shall not be deemed to have been deposited under that subsection unless at the time of deliver of the nomination paper ²[under subsection (1) or, as the case may be, sub-section (IA) of section 33] the candidate has either deposited or caused to be deposited that sum with the returning officer in cash or enclosed with the nomination paper a receipt showing that the said sum has been deposited by him or on his behalf in the Reserve Bank of India or in a Government Treasury

——————–

1. Sub-section (3) was subs. bv Act 27 of 1956, sec. 17 and again subs. by Act 21 of 1996, sec. 7 (w.e.f. 1-8-1996).

2. Subs. by Act 10 of 1976, sec. 2 and Sch., for certain words (w.e.f. 9-9-1 975).

3. Subs. by Act No. 41 of 2009 w.e.f. 22.12.2009.

4. Subs. by Act No. 41 of 2009 w.e.f. 22.12.2009.

Section 35. Notice of nominations and the time and place for their scrutiny

The returning officer shall, on receiving the nomination paper ¹[under subsection (1) or, as the case may, be, sub-section (I A) of section 33], inform the person or persons delivering the same of the date. time and place fixed for the scrutiny of nominations and shall enter on the nomination paper its serial number and shall sign thereon a certificate stating the date on which and the hour at which the nomination paper has been delivered to him, and shall as soon as may be thereafter, cause to be affixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper., both of the candidate and or ²[the proposer].

——————–

1. Subs. by Act 27 of 1 956, sec. 18, for certain words.

2. The words “and one seconded” omitted by, Act 27 of l956, sec. 19.

Section 36. Scrutiny of nominations

(1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents one proposer ¹[***] of each candidate and one other person duly a in writing by each candidate but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.

(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary ²[reject] any nomination on any of the following grounds

³ [(a) ⁴[that on the date fixed for the scrutiny of nominations the candidate] either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely: -

Articles 84, 102, 173 and 191,] ⁵[* * *]

⁶[Part II of this s Act and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963)] ⁷[***]; or

(b) That there has been a failure to comply with any of the provisions of section 33 or section 34; or

(c) That the signature of the candidate or the proposer on the nomination paper is riot genuine.

(3) Nothing contained in ⁸[clause (b) or clause (c)] of sub-section (2) shall be deemed to authorise the ⁹[rejection] of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.

(4) The returning officer shall not reject any nomination paper on the ground of any ¹⁰[***] defect which is not of a substantial character.

(5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:

Provided that in case ¹¹[an objection is raised by the returning officer or is made by Any other person] the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.

(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.

¹²[(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elect or for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950).

(8) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.]

——————–

1. The words “and one seconded” omitted by, Act 27 of l956, sec. 19.

2. Subs. by Act 27 of 1 956 sec. 19, for “refuse”.

3. Subs. by Act 27 of 1956, sec. 19, for clause (a) to (e).

4. Subs. by, Act 40 of 1961, sec. 9, for “that the candidate” (w.e.f. 20-9-1961).

5. The word “and” ins. by the Adaptation of Laws (No. 2) Order, 1956 and omitted by Act 20 of 1963, sec. 57 and the First Sch.

6. Subs. By Act of 1963, sec 57 and the Second Sch, for certain words.

7. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.

8. Subs. by Act 27 of 1956, sec. 19, for “clause (c), clause (d) or clause (e).

9. Subs. by Act 27 of 1956, sec. 19, for “refusal”.

10. The word “technical” omitted by Act 27 of 1956, sec. 19.

11. Subs. by Act 40 of 1961, sec. 9, for “an objection is made” (w.e.f 20-9-196 ).

12. Subs. by Act 27 of 1956, sec. 19, for sub-section (7).

Section 37. Withdrawal of candidature

(1) Any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed and shall be subscribed by him and delivered before three O’clock in the afternoon on the day fixed under clause (c) of section 30 to the returning officer either by such candidate in person or by his proposer, ¹[***] or election agent who has been authorised in this behalf in writing by such candidate.

¹[* * *]

(2) No person who has given a notice or withdrawal of his candidature under subsection (1) shall be allowed to cancel the notice.

²[(3) The returning officer shall, on being satisfied as to the genuineness of a notice or withdrawal and the identity of the person delivering under sub-section (1), cause the notice to be affixed in some conspicuous place in his office.]

——————–

1. The word “seconded” and the proviso omitted by Act 27 of 1956, sec. 20.

2. Subs. by Act 40 of’ 1961, sec. 10, for sub-section (3) (w.e.f 20-9-1961)

Section 38. Publication of list of contesting candidates

¹[Publication of list of contesting candidates. (1) Immediately after the expiry of the period within which candidatures may be withdrawn under sub-section (1) of section 37, the returning officer shall prepare and publish in such form and manner as may be prescribed a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period.

²[(2) For the purpose of listing the -names under sub-section (1), the candidates shall be classified as follows, namely: -

(i) Candidates of recognised political parties;

(ii) Candidates of registered political parties other than those mentioned in clause

(iii) Other candidates.

(3) The categories mentioned in sub-section (2) shall be arranged in the order specified therein and the names of candidates in each category shall be arranged in alphabetical order and the addresses of the contesting candidates as given in the nomination papers together with such other particulars as may be prescribed].]

——————–

1. Subs. by Act 27 of 1956, sec. 21, for section 38.

2. Subs. by Act 21 of 1996, sec, 8, for sub-section (2) (w.e.f 1-8-1996).

¹[Nomination of candidates at other elections. (1) As soon as the notification calling upon the elected members or the members of the Legislative Assembly of a State or the members of the electoral college of a ²[Union territory] to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint-

(a) The last date for making nominations, which shall be the ³[seventh day] after the date of publication of the first-mentioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday;

(b) The date for the scrutiny of nominations, which shall be ⁴[the day immediately following] the last date for making nominations or if that day is a public holiday, the next succeeding day -which is not a public holiday;

(c) The last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of nominations or if that day is a public holiday, the next succeeding day which is not a public holiday-,

(d) The date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the seventh day after the last date for the withdrawal of candidatures; and

(e) The date before which the election shall be completed.

⁵[***]

(2) The provisions of sections 31 to 38, excluding subsections (2) and (5) of section 33 and ⁶[clause (a) of subsection (1) of section 34], shall apply in relation to any such election as they apply in relation to an election in any constituency:

Provided that-

(a) Any references in the said provisions to the electoral roll of the constituency shall unless the context otherwise requires, be construed, in the case of an election by the member or the elected members of the Legislative Assembly of the State, as references to the list of members of elected members, as the case may be, of that Assembly maintained under sub-section (1) of section 152, and in the case of an election by the members of the electoral college of a ⁷[Union territory], as references to the list of members of such electoral college maintained under subsection (2) of that section;

⁸[(aa) The reference in the opening paragraph of subsection (1) of section 33 to “an elect or of the constituency as proposer shall be construed as a reference to “ten percent. of the elected members or of the members of the Legislative Assembly of a State or of the members of the electoral college of a Union territory, as the case may be, or ten members concerned, whichever is less, as proposers”:

Provided that where as a result of a calculation of the percentage referred to in this clause, the number of members arrived at is a friction and if the fraction so arrived at is more than one-half it shall be counted as one, and if the fraction so arrived at is less than one half it shall be ignored;]

⁹[¹⁰[(ab) In the case of a election to the Legislative Council pf a State by the members pf the Legislative Assembly of that State, clause (a) of sub-section (2) of section 36 shall be construed as including a reference to sub-clause (d) of clause (3) of article 171;]

(b) Any references in the said provisions to section 30 shall be construed as references to subsection (1) of this section; and

(c) At the time of presenting the nomination paper, the returning officer may require the person presenting the same to produce either a copy of the electoral roll, or part of the electoral roll, in which the name of the candidate is included or the certified copy of the relevant entries in such roll.]

——————–

1. Subs. by Act 27 of 1956, sec. 22, for section 39.

2. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “Part C State”.

3. Subs. by Act 40 of 1961, sec. 11, for “tenth day” (w.e.f. 20-9-196 1).

4. Subs. by Act 47 of 1966, sec. 30, for “the second day after” (w.e.f 14-12-1966).

5. Explanation omitted by Act 47 of 1966, sec. 30 (w.e.f. 14-12-1966)

6. Subs. by Act 58 of 1958, sec. 19, for “section 34”.

7. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “Part C State”.

8. Ins. by Act I of 1989, sec. 8 (w.e.f. 1-4-1989).

9. Ins. by Act 47 of 1966, sec. 30 (w.e.f. 14-12-1966).

10. Clause (aa) relettered as clause (ab) by Act I of 1989, sec. 8 (w.e.f. 1-4-1989).

Section 40. Election agents

¹[Election agents. A candidate at an election may appoint in the prescribed manner any one person other than himself to be his election agent and when any such appointment is made, notice of the appointment shall be given in the prescribed manner to the returning officer.]

——————–

1. Subs. by Act 27 of 1956, sec. 23, for section 40.

Section 41. Disqualification for being an election agent

¹[Disqualification for being an election agent. Any person who is for the time being disqualified under the Constitution or under this Act for being a member of either House of Parliament or the House or either House of the Legislature of a State or for voting at elections, shall, so long as the disqualification subsists, also be disqualified for being an election agent at any election.]

——————–

1. Subs. by Act 47 of 1966, sec. 31, for section 41 (w.e.f. 14-12-1966).

Section 42. Revocation of the appointment, or death, of an election agent

(1) Any revocation of the appointment of an election agent, ¹[***] shall be signed by the candidate, and shall operate from the date on which it is lodged with the returning officer.

²[(2) In the event of such a revocation or of the death of an election agent whether that event occurs before or during the election, or after the election but before the account of the candidate’s election expenses has been lodged in accordance with the provisions of section 78, the candidate may appoint in the prescribed manner another person to be his election agent and when such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer.]

——————–

1. Certain words omitted by Act 27 of 1956 sec. 24.

2. Subs. by Act 27 of 1956, sec. 24, for sub-section (2).

Section 43. Effect of default in appointment of election agent under section 42

Rep. by the Representation of the People (Second Amendment) Act, 19-56 (27 of 1956), sec. 25

Section 44. Duty of the election agent to keep accounts

Rep. by the Representation of the People (Second Amendment Act, 1956 (27 of 19-56), sec. 25

Section 45. Functions of election agents

¹Functions of election agents. An election agent may perform such functions in connection with the election as are authorised by or under this Act to be performed by an election agent.]

——————–

1. Subs. by Act 27 of 1956, sec. 26, for section 45.

Section 46. Appointment of polling agents

¹[Appointment of polling agents. A contesting candidate or his election agent may appoint in the prescribed manner such number of agents and relief agents as may be prescribed to act as polling agents of such candidate at each polling station provided under section 25 or at the place fixed under subsection (1) of section 29 for the poll.]

——————–

1. Subs. by Act 27 of 1056, sec. 27, for section 46.

Section 47. Appointment or counting agents

¹[Appointment or counting agents. A contesting candidate or his election agent may appoint in the prescribed manner one or more persons, but not exceeding such number as may be prescribed, to the present as his counting agent or agents at the counting of votes, and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer.]

——————–

1. Subs. by Act 27 of 1956, sec. 28, for section 47.

Section 48. Revocation of the appointment or death, or a polling agent or counting agent

(1) Any revocation of the appointment of a polling agent shall be signed by the candidate or his election agent and shall operate from the date on which it is lodged with such officer as may be prescribed, and in the event of such a revocation or of the death of a polling agent before the close of the poll, the candidate or his election agent may appoint in the prescribed manner another polling agent at any time before the poll is closed and shall forthwith give notice of such appointment in the prescribed manner to such officer as may be prescribed.

(2) Any revocation of the appointment of a counting agent shall be signed by the candidate or his election agent and shall operate from the date on which it is lodged with the returning officer, and in the event of such revocation or of the death of a counting agent before the commencement of the counting of votes, the candidate or his election agent may appoint in the prescribed manner another counting agent at any time before the counting of votes is commenced and shall forthwith give notice of such appointment in the prescribed manner to the returning officer.

Section 49. Functions of polling agents and counting agents

(1) A polling agent may perform such functions in connection with the poll as are authorised by or under this Act, to be performed by a polling agent.

(2) A counting agent may perform such functions in connection with the counting of votes as are authorised by or under this Act to be performed by a counting agent.

Section 50. Attendance of a contesting candidate or his election agent at polling stations, and performance by him of the functions of a polling agent or counting agent

(1) At every election where a poll is taken, each ¹[contesting candidate] at such election and his election agent shall have a right to be present at any polling station provided under section 25 for the taking of the poll or at the place fixed under sub-section (1) of section 29 for the poll.

(2) A ¹[contesting candidate] or his election agent may himself do any act or thing which any polling agent or the counting agent of such ¹[contesting candidate] if appointed, would have been authorised by or under this Act to do, or may assist any polling agent or the counting agent of such ¹[contesting candidate] in doing any such act or thing.

——————–

1. Subs. by Act 58 of 1958, sec. 20, for “candidate”.

Section 51. Non-attendance of polling or counting agents

Where any act or thing is required or authorised by or under this Act to be done in the presence of the polling or counting agents, the non-attendance of any such agent or agents at the time and place appointed for the purpose shall not, if the act or thing is otherwise duly done, invalidate the act or thing done.

Section 52. Death of a candidate of a recognised political party before poll

¹[Death of a candidate of a recognised political party before poll. (1) If a candidate set up by a recognised political party, -

(a) Dies at any time after 11.00 A.M. on the last date for making nominations and his nomination is found valid on scrutiny under section 36, or

(b) Whose nomination has been found valid on scrutiny under section 36 and who has not withdrawn his candidature under section 37, dies,

And in either case, a report of his death is received at any time before the publication of the list of contesting candidates under section 38; or

(c) Dies as a contesting candidate and a report of his death is received before the commencement of the poll,

The returning officer shall, upon being satisfied about the fact of the death of the candidate, by order, announce an adjournment of the poll to a date to be notified later and report the fact to the Election Commission and also to the appropriate authority:

Provided that no order for adjourning a poll should be made in a case referred to in clause (a) except after the scrutiny of all the nominations including the nomination of the deceased candidate.

(2) The Election Commission shall, on the receipt of a report from the returning officer under sub-section (1), call upon the recognised political party, whose candidate has died, to nominate another candidate for the said poll within seven days of issue of such notice to such recognised political party and the provisions of sections 30 to 37 shall, so far as may be, apply in relation to such nomination as they would apply to other nominations:

Provided that no person -who has given a notice of withdrawal of his candidature under sub-section (1) of section 37 before the adjournment of the poll shall be ineligible for being nominated as a candidate for the election after such adjournment.

(3) Where a list of contesting candidates had been published under section 38 before the adjournment of the poll under subsection (1), the returning officer shall again prepare and publish a fresh list of contesting candidates under that section so as to include the name of the candidate who has been validly nominated under sub-section (2).

Explanation For the purposes of this section, sections 33 and 3 8, “recognised political party”, means apolitical party recognised by the Election Commission under the Election Symbols (Reservation and Allotment) Order, 1968.]

——————–

1. Section 52 was subs. by Act 2 of 1992 , sec. 2 and again subs. by Act 21 of 1996, sec. 9 (w.e.f 1-8-1996).

Section 53. Procedure in contested and uncontested elections

¹[(1) If the number of contesting candidates is more than the number of seats to be filled. a poll shall be taken.]

(2) If the number of such candidates is equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected to fill those seats.

(3) If the number of such candidates is less than the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be elected and the ²[Election Commission] shall by notification in the Official Gazette call upon the constituency or the elected members or the members of the State Legislative Assembly or the members of the electoral college concerned ³[* * *] as the case may be, to elect a person or persons to fill the remaining seat or seats ⁴[***] :

Provided that where the constituency or the elected members or the members of the State Legislative assembly or the members of the electoral college ³[***] having already been called upon under this subsection, has or have failed to elect a person or the requisite member of persons, as the case may be, to rill the vacancy or vacancies, the ²[Election Commission shall not be bound to call again upon the constituency, or such members to elect a person or persons ⁵[until it is satisfied that if called upon again, there will be no such failure on the part of the constituency of such members].

——————–

1. Subs. by Act 27 1956, sec. 30, for sub-section (1).

2. Subs. try Act 27 (if 1956, sec. 30, for “appropriate authority”.

3. Certain words omitted by Act 49 of 1951, sec. 44 and the Fifth Schedule.

4. Certain words omitted by Act 27 or 1956, sec. 30.

5. Subs. by Act 27 of 1956, sec. 30, for., until such date as the Election Commission may specify in this behalf’.

Section 54. Special procedure at elections in constituencies where seats are reserved for Scheduled Caste or Scheduled Tribes

Rep. by there Representation of the people (Amendment) Act, 1961 (40 of 1961), sec. 12 (w.e.f 20-9-1961)

Section 55. Eligibility of members of Scheduled castes or Scheduled Tribes to hold seats not reserved for those castes or tribes

For the avoidance of doubt it is hereby declared that a member of the Scheduled Castes or of the Scheduled Tribes shall not be disqualified to hold a seat not reserved for member, of those castes or tribes, if lie is otherwise qualified to hold such seats under the Constitution and this Act ¹[or under the Government of Union Territories Act, 1963 (120 of 1963), as the case may be.]

——————–

1. Ins. by Act 20 of 1063, sec. 57 and the Second Schedule. The words “or under the Government of Part (‘ States Act, 1951 (40 of 195 1), as the case may be” ins. by Act 27 of 1956, sec. 32, and omitted by the Adaptation of Laws (No. 2) Order, 1956.

Section 55 A. Retirement from contest at elections in Parliamentary and Assembly Constituencies

¹[Retirement from contest at elections in Parliamentary and Assembly Constituencies. Rep. by the Representation of the People (Amendment) Act, 1958 (58 of 1958, sec. 22

——————–

1. Ins. by Act 27 of 1956, sec. 33,

Section 56. Fixing time for poll

The ¹[Election Commission] shall fix the hours during which the poll will be taken; and the hours so fixed shall be published in such manner as may be prescribed:

Provided that the total period allotted on any one day for polling at in election and Parliamentary or Assembly constituency shall not be less than eight hours.

——————–

1. Subs. by Act 27 of 1956, sec. 34, for Appropriate authority”

Section 57. Adjournment of poll in emergencies

(1) If at an election the proceedings at any polling station provided under section 25 or at the place fixed under subsection (1) of’ section 29 for the poll are interrupted or obstructed by any riot or open violence, or if at an election it is not possible to take the poll it any polling station or such place on account of any natural calamity, or any other sufficient cause the presiding officer for such polling station or the returning officer presiding over such place, as the case may be, shall a Bounce an adjournment of the poll to a date to be notified later, and where the poll is so adjourned by a presiding officer, he shall forthwith inform the returning officer concerned.

(2) Whenever a poll is adjourned under subsection (1), the returning officer shall immediately report the circumstances to the appropriate authority and the Election Commission and shall, as soon as may be, with the previous approval of the Election Commission appoint the day on which the poll shall recommence, and fix the polling station or place at which, and the hours during which, the poll will be taken, and shall not count the votes cast at such election until such adjourned poll shall have been completed.

(3) In every such case as aforesaid; the returning officer shall notify in such manner as the Election Commission may direct the date, place and hours of polling fixed under subsection (2).

Section 58. Fresh poll in the case of destruction, etc., of ballot boxes

¹[Fresh poll in the case of destruction, etc., of ballot boxes. (1) If at any election, -

(a) Any ballot box used at a polling station or at a place fixed for the poll is unlawfully taken out of the custody of the presiding officer or the returning officer, or is accidentally or intentionally destroyed or lost, or is damaged or tampered with, to such an extent, that the result of the poll at the polling station or place cannot be ascertained; or

²[(aa) Any voting machine develops a mechanical failure during the course of the recording of votes; or]

(b) Any such error or irregularity in procedure as is likely to vitiate the poll is committed at a polling station or at a place fixed for the poll,

The returning officer shall forthwith report the matter to the Election Commission.

(2) Thereupon the Election Commission shall, after taking all material circumstances into account; either-

(a) Declare the poll at that polling station or place to be void, appoint a day, and fix the hours, for taking a fresh poll at that polling station or place and notify the day so appointed and the hours so fixed in such manner as it may deem fit, or

(b) If satisfied that the result of a fresh poll at that polling station or place will not in anyway, affect the result of the election or that ³[the mechanical failure of the voting machine or] the error or irregularity in procedure is not material, issue such directions to the returning officer as it may deem proper for the further conduct and completion of the election.

(3) The provisions of this Act and of any rules or orders made thereunder shall apply to every such fresh poll as they apply to the original poll.]

——————–

1. Sub. by Act 40 or 1961, sec. 13, for section 58 (w.e.f. 20-9-1961).

2. Ins. by Act 1 of 1989, sec. 9 (w.e.f. 15-3-1989)

3. Ins. by Act I of 1989, sec. 9 (w.e.f’. 15-3-1989)

Section 58 A. Adjournment of poll or countermanding of election on the ground of booth capturing

¹[Adjournment of poll or countermanding of election on the ground of booth capturing. (1) If at any election, -

(a) Booth capturing has taken place at a polling station or at a place fixed for the poll (hereafter in this section referred to as a place) in such a manner that the result of the poll at that polling station or place cannot be ascertained; or

(b) Booth capturing takes place in any place for counting of votes in such a manner that the result of the counting at that place cannot be ascertained,

The returning officer shall forthwith report the matter to the Election Commission.

(2) The Election Commission shall, on the receipt of a report from the returning officer under subsection (1) and after taking all material circumstances into account, either, -

(a) Declare that the poll at that polling station or place be void, appoint a day, and fix the hours, for taking fresh poll at that polling station or place and notify the date so appointed and hours so fixed in such manner as it may deem fit; or

(b) If satisfied that in view of the large number of polling stations or places involved in booth capturing the result of the election is likely to be affected, or that booth capturing had affected counting of votes in such a manner as to affect the result of the election, countermand the election in that constituency.

Explanation- In this section, “booth capturing” shall have the same meaning as in section 135A.]

——————–

1. Ins. by Act 1 of 1989, sec. 10 (w.e.f. 15-3-1989).

Section 59. Manner of voting at elections

At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed, and no votes shall be received by proxy.

Section 60. Special procedures for voting by certain classes of persons

Without prejudice to the generality of the provisions contained in section 59, provision may be made by rules made under this Act for enabling, -

(a) Any of the following persons to give his vote by postal ballot, and not in any other manner, at an election in a constituency where a poll is taken, namely:

¹[(i) Any person to whom the provisions of sub-section (3) of section 20 of the Representation of the People Act, 1950 (43 of 1950) apply;

(ii) The wife of any such person as is referred to in sub-clause (i) to whom the provisions of sub-section (6) of the said section 20 apply;]

(b) Any person subjected to preventive detention under any law for the time being in force to give his vote by postal ballot, and not in any other manner, at an election in a constituency where a poll is taken, subject to the fulfilment of such requirements as may be specified in those rules.

²[(c) Any person belonging to a class of persons notified by the Election Commission in consultation with the Government to give his vote by postal ballot, and not in any other manner, at an election in a constituency where a poll is taken subject to the fulfilment of such requirements as may be specified in those rules.]

——————–

1. Subs. by Act 47 of 1966, sec. 33, for sub-clauses (i), (iii) and (iv). Sub-clause (ii) was omitted by Act 58 of 1959, sec. 24.

2. Ins. by Act 30 of 1999, sec. 2 (w.e.f. 21-6-1999).

Section 61. Special procedure for preventing personation of electors

¹[Special procedure for preventing personation of electors. With a view to preventing personation of electors provision may be made by rules made under this Act: -

(a) For the making with indelible ink of the thumb or any other finger of every elector who applies for a ballot paper or ballot papers for the purpose of voting at a polling station before delivery of such paper or papers to him;

(b) For the production before the presiding officer or a polling officer of a polling station by every such elector as aforesaid of the identity card before the delivery of a ballot paper or ballot papers to him if under rules made in that behalf under the Representation of the People Act, 1950 (43 of 1950), electors of the constituency in which the polling station is situated have been supplied with identity cards with or without their respecting photographs attached thereto; and

(c) For prohibiting the delivery of any ballot paper to any person for voting, at a polling station if at the time such person applies for such paper he has already such a mark on his thumb or any other finger or does not produce on demand his identity card before the presiding officer or a polling officer of the poling station].

——————-

1. Subs. by Act 58 of 1958, sec. 25, for section 61.

Section 61 A. Voting machines at elections

¹[Voting machines at elections. Notwithstanding anything contained in this Act or the rules made thereunder, the giving and recording of votes by voting machines in such manner as may be prescribed, may be adopted in such constituency or constituencies as the Election Commission may, having regard to the circumstances of each case, specify.

Explanation For the purpose of this section, “voting machine” means any machine or apparatus whether operated electronically or otherwise used for giving or recording of votes and any reference to a ballot box or ballot paper in this Act or the rules made thereunder shall, save as otherwise provided, be construed as including a reference to such voting machine wherever such voting machine is used at any election.]

——————–

1. Ins. by Act 1 of 1989, sec. 11 (w.e.f 15-3-1989).

Section 62. Right to vote

(1) No person who is not, and except as expressly provided by the Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.

(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950).

(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.

(4) No person shall at any election vote in the same constituency more than once, not withstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void.

(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of’ the police:

Provided that nothing in this subsection shall apply to a person subjected to preventive detention under any law for the time being in force.

Section 63. Method of voting

Rep. By the Representation of the People (Amendment) Act, 1961 (40 of 1961), sec. 14 (w.e.f. 20-9-1961)

Section 64. Counting or votes

At every election where a poll is taken, votes shall be counted by or under the ¹[supervision and direction] of, the returning officer, and each ²[contesting candidate], his election agent and his ³[counting agents], shall have a tight to be present at the time of counting.

——————–

1. Subs. by Act 27 of 1956, see. 36, for “supervision”.

2. Subs. by Act 58 of 1958 sec. 26, for “candidate”.

3. Subs. by Act 27 of 1956, sec. 36, for “counting agent”.

Section 64 A. Destruction, loss, etc., or ballot papers at the time of counting

¹[Destruction, loss, etc., or ballot papers at the time of counting. (1) If at any time before the counting of votes is completed any ballot papers used at a polling station or at a place fixed for the poll are unlawfully taken out of the custody of the returning officer or are accidentally or intentionally destroyed or lost or are damaged or tampered with, to such an extent that the result of the poll at that polling station or place cannot be ascertained, the returning officer shall forthwith report the matter to the Election Commission.

(2) Thereupon, the Election Commission shall, after taking all material

circumstances into account, either-

(a) Direct that the counting of votes shall be stopped, declare the poll at that polling station or place to be void, appoint a day, and fix the hours, for taking a fresh poll at that polling station or place and notify the date so appointed and hours so fixed in such manner as it may deem fit, or

(b) If satisfied that the result of a fresh poll at that polling station or place will not in any way, affect the result of the election, issue such directions to the returning officer as it may deem proper for the resumption and completion of the counting and for the further conduct and completion of the election in relation to which the votes have been counted.

(3) The provisions of this Act and of any rules or orders made thereunder shall apply to every such fresh poll as the apply to tire original poll.]

——————–

1. Ins. by Act 47 of 1966, sec. 34, (w.e.f. 14-12-1966).

Section 65. Equality of votes

If after the counting of the votes is completed, an equality of votes is found to exist between any candidates, and the addition of one vote will entitle any of those candidates to be declared elected, the returning officer shall forthwith decide between those candidates by lot, and proceed as if the candidate on whom the lot falls had received an additional vote.

Section 66. Declaration of results

When the counting of the votes has been completed, the returning officer ¹[shall, in tire absence of any direction by the Election Commission to the contrary, forthwith declare] the result of the election in the manner provided by this Act or the rules trade thereunder

——————–

1. Subs. By Act 47 of 1966, sec. 35, for “shall forthwith declare” (w.e.f. 14-12-1966)

Section 67. Report of the result

As soon as may be after the result of all election has been declared, the returning officer shall report the result to the appropriate authority and the Election Commission, and in the case of air election to a House of Parliament or of the Legislature of’ a State also to the Secretary of that House, and the appropriate authority shall cause to he published in file Official Gazelle the declarations containing the names of tire elected candidates.

Section 67 A. Date of election of candidate

¹[Date of election of candidate. For the purposes of this Act, file date on which candidate is declared by the returning officer under the provisions of section 53, ²[***], ³[* * *], or section 66, to be elected to a House of Parliament or of the Legislature of a State shall be the date of election of that candidate.

——————–

1. Ins. By Act 27 of 1956, sec. 37

2. The word and figures “section 54” omitted by Act 40 of’ 1961, sec. 15 (w.e.f. 20-9-1961).

3. The word, figures and letter “section 55A” omitted by Act 58 or 1958, sec. 27.

Section 68. Vacation of seats when elected to both Houses or Parliament

(1) Any person who is chosen member of both the Houses of the People and the Council of States and who has not taken his seat in either House relay, by notice in writing signed by him and delivered to the Secretary to the Election Commission ¹[within ten days from the date, or the liter of the dates, on which lie is so chosen, intimate in which of the Houses he wishes to serve, and thereupon, his scat in the House in which he does not wish to serve shall become vacant.

(2) In default of such intimation within the aforesaid period, his seat in the Council of States shall, at the expiration of that period become vacant.

(3) Any intimation given under subsection (1) shall be final and irrevocable.

²[(4) For the purposes of this section and of section 69, the date on which a person is chosen to be a member of either House of Parliament shall be in the case of an elected member, the date of his election and in the case of a nominated member, the date of first publication in the Gazette of India of his nomination.]

——————–

1. Subs. By Act 27 of 1956, sec. 38, for certain words.

2. Ins. By Act 27 of’ 1956, sec. 38

Section 69. Vacation of seats by pet-sons already members of one House on election to other House of Parliament

(1) If a person who is already a member of the House of the People and has taken his seat in such House is chosen a member of the Council of States, his seat in the House of the People shall ¹[on the date on which he is so chosen], become vacant.

(2) If a person who is already a member of the Council of States and has taken his seat in such Council is chosen a member of the House of the People, his seat in the Council of States shall ¹[on the date on which he is so chosen], become vacant.

——————–

1. Sub. By Act 27 of 1056, sec. 39, for certain words.

Section 70. Election to more than one seat in either House of Parliament or in the House or either- House of the Legislature of a State

If a person is elected to more than one seat in either House of Parliament or in the House or either House of the Legislature of a State, then, unless within the prescribed time he resigns all but one of the seats ¹[by writing under his hand addressed to the Speaker or Chairman, as the case may be, or to such other authority or officer as may be prescribed], all the seats shall become vacant.

——————–

1. Ins. By Act 27 of’ 1956, see. 40.

Section 71. Publication results of elections to the Council of States and of names of persons nominated by the President

¹[Publication results of elections to the Council of States and of names of persons nominated by the President. After the elections held in any year in pursuance of the notifications issued under section 12, there shall be notified by the appropriate authority in the Official Gazette the names of members elected by the elected members of the Legislative Assemblies of the States and by the members of the electoral colleges for the various ²[Union] territories at the said elections together with the names of any persons nominated by the President to the Council of States under sub-clause (a) of clause (1) of article 80 or under any other provisions.

——————–

1. Sub by Act 27 of’ 1956, sec. 41, for sections 71 to 75.

2. Sub. By the Adaptation of Laws (No. 2) Order, 1956, for “Part C States”

Section 72. Publication or results of elections for the reconstitution of electoral colleges for certain Union territories

Rep. by the Territorial Councils Act, 1956 (103 of 1956), sec. 66

Section 73. Publication of results of general elections to the House of the People and the State Legislative Assemblies

Where a general election is held for the purpose of constituting a new House of the People or a new State Legislative Assembly, there shall be notified by ¹[the Election Commission] in the Official Gazette, as soon as may be after ²[the results of the elections in in the constituencies] other than these in which the poll could not be taken for any reason on the date originally fixed under clause (d) of section 30 or for which the time for completion of the election has been extended under the provisions of section 53 have been declared by the returning officer under the provisions of section 53 or, as the case may be section 66, the names of the members elected for those constituencies] ³[* ** ] and upon the issue of such notification that House or Assembly shall be deemed to be duly constituted:

Provided that the issue of such notification such not be deemed

⁴[(a) To preclude-

(i) The taking of the poll and the completion of the election in any Parliamentary or Assembly constituency or constituencies in which the poll could not be taken for any reason on the date originally fixed under clause (d) of section 30; or

(ii) The completion of the election in any Parliamentary or Assembly constituency or constituencies for which time has been extended under the provisions of section 153; or]

(b) To affect the duration of the House of the People or the State Legislative Assembly, if any, functioning immediately before the issue of the said notifications

——————–

1. Subs. by Act 40 of 1961, sec. 16, for “the appropriate authority” (w.e.f. 20-9-1961).

2. Subs. by Act 10 of 1967, sec. 2, for certain words.

3. Certain words omitted by Act 40 of 1961, sec. 16, (w.e.f. 20-9-1961).

4. Subs by Act 10 of 1967, sec. 2, for clause (a).

Section 73 A. Special provision as to certain elections

¹[Special provision as to certain elections. Notwithstanding anything containedinsection73 or in any other provision of this Act, with respect to the general election for the purpose of constituting a New House of the People upon dissolution of’ the Ninth House of the People,-

(a) The notification under section 73 may be issued without taking into account the Parliamentary constituencies in the State of Jammu and Kashmir; and

(b) The Election Commission may take the steps in rotation to election from the Parliamentary constituencies in the State of Jammu and Kashmir; separately and in such timing and on such date or dates is it may deem appropriate.]

——————–

1. Subs. by Act 31 of 1991, see. 2, for sections 73A and 73AA (w.e.f. 18-4-1991)

Section 74. Publication of results of elections to the State Legislative Councils and of names of persons nominated to such Councils

After the elections held ¹[in pursuance of the notifications issued under section 15A or ] in any year in pursuance of the notifications issued under section 16, there shall he notified by the appropriate authority in the Official Gazette the names of the member elected for the elected for the various Council constituencies and by the member of the Legislative Assembly of the State at the said elections together with the names of any persons nominated by the Governor ²[***] under sub-clause (e) of clause (3) of article 171.]

——————–

1. Ins. by Act 37 of 1957, sec. 13.

2. The words “or Rajpramukh, as the case fairly be” omitted by the Adaptation of Laws (No. 2) Order, 1956

Section 76. Application of Chapter

¹[Application of Chapter. This Chapter shall apply only to the elections to the House of the People and to the Legislative Assembly of a State.

——————–

1. Subs. by Act 27 of 1956, sec. 42, for sections 76 to 78.

Section 77. Account of election expenses and maximum thereof

(1) Every candidate at air election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between ¹[the date on which he has been nominated] and the date of declaration of the result thereof, both dates inclusive.

²[Explanation 1.Notwithstanding any judgment, order or decision of any Court to the contrary, any expenditure incurred or authorized in connection with the election of a candidate by a political party or by any other association or body of persons or by ,my individual (other than the candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in connection with the election incurred or authorized by the candidate or by his election agent for the purposes of this subsection:

Provided target nothing contained in this Explanation shall affect-

(a) Any judgment, order or decision of the Supreme Court whereby the election of a candidate to the House of the People or to the Legislative Assembly of a State his been declared void or set aside before the commencement of the Representation of the People (Amendment) Ordinance, 1974 (Ord. 13 of 1974);

(b) Any judgment, order or decision of a High Court whereby the election of any such candidate has been declared void or set aside before the commencement it of’ the said Ordinance if no appeal has been preferred to the Supreme Court before such judgment, order or decision of the High Court before such commencement and the period of limitation for filing such appeal has expired before such commencement.

³ [* **]

⁴[Explanation 3.For the removal of doubt, it is hereby declared that any expenditure incurred in respect of any arrangements made, facilities provided or any other act or thing done by any person in the service of the Government and belonging to any of the classes mentioned in clause (7) of section 123 in the discharge or purported discharge of his official duty as mentioned in the proviso to that clause shall not be deemed to be expenditure in connection with the election incurred or authorized by a candidate or by his election agent for the purposes of this subsection.]

(2) The account shift contain such particulars, as may be prescribed.

(3) The total of the said expenditure shall not exceed such amount as may be prescribed.

——————–

1. Subs. by Act 40 of 1975, sec. 6, for, certain words (retrospectively).

2. Ins. by Act 59 of 1974, sec. 2 (w.e.f. 19-10-1974).

3. Explanation 2 omitted by Act of 1989, sec. 12 (w.e.f. 15-3-1989).

4. Ins. by Act 40 of’ 1075, sec. 6 (retrospectively)

Section 78. Lodging of account with the district election officer

¹[(1)] Every contesting candidate at an election shall, within thirty days from the dale of election of the returned candidate or, if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates, lodge with the ²[district, election officer] an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under section 77.]

³[(2) The reference to the district election officer in subsection (1) shall, in relation to a constituency in a Union territory, he construed as a reference to the returning officer for that constituency.]

——————–

1. Section 78 renumbered as sub-section (1) of that section by Act 47 of 1966, sec. 36.

2. Subs. by Act 47 of 1966, sec. 36, for “returning officer”.

3. Ins. by Act 47 of 1966, sec. 36.

Section 79. Definitions

In this Part and in ¹[Part VIII unless the context otherwise requires, -

²[(a) Any reference to a High Court or to the Chief Justice or Judge of a High Court shall, in rotation to a Union territory having a Court of the Judicial Commissioner, be construed as a reference to the said Court of the Judicial Commissioner or to the Judicial Commissioner or any Additional Judicial Commissioner, as the case may be;]

³[(b) “Candidate” means a person who has been or claims to have been duly nominated as a candidate at any election;]

(c) “Costs” means all costs, charges and expenses of, or incidental to, a trial of an election petition;

(d) “Electoral right” means the right of a person to stand or not to stand as, or ⁴[to withdraw or not to withdraw] from being, a candidate, or to vote or refrain from voting at all election;

⁵[(e) “High Court” means the High Court within the local limits of whose jurisdiction the election to which the election petition relates has been held; ]

(f) “Returned candidate” means a candidate whose name has been published under section 67 as duly elected.

——————–

1. Subs. by Act 47 of 1966, sec. 37, for “Parts VII and VIII”.

2. Ins. by Act 47 of 1966, sec. 37, original clause (a) was omitted by Act 27 of 1956, sec. 43.

3. Subs. by Act 40 of 1975, sec. 7 for clause (b) (retrospectively).

4. Subs. by Act 47 of 1966, sec. 37, for “to withdraw”(w.e.f. 14-12-1966).

5. Subs. By Act 47 of 1966, sec. 37 for claluse (e) (w.e.f. 14-12-1966)

Section 80. Election petitions

Chapter II. Presentation of Election Petitions to ¹[High Court]

——————–

1. Subs. by Act 47 of 1966, sec. 39, for “Election Commission” (w.e.f. 14-12-966).

80. Election petitions.

No election shall be called in question except by all election petition presented in accordance with the provisions of this Part.

Section 80 A. High Court to try election petitions

¹[High Court to try election petitions. (1) The Court having jurisdiction to try an election petition shall be the High Court.

(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice, shall, from time to time, assign one or more Judges for that purpose:

Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.

(3) The High Court in its discretion may, in the interests of justice or convenience, try all election petition, wholly or partly, at a place other than the piece of seat of the High Court.]

——————–

1. Ins. by Act 47 of 1966, sec. 38 (w.e.f. 14-12-1966).

Section 81. Presentation of petitions

(1) An election petition calling in question any election may be presented on one or more of the grounds specified in ¹[sub-section (1)] of section 100 and section 101 to the ²[High Court] by any candidate at such election or any elector ³[within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates].

Explanation. In this subsection, “elector” means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

⁴[***]

⁵[(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition ⁶[***] and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.]

——————–

1. Subs. by Act 27 of 1956, sec. 44, for “sub-sections (1) and (2)”

2. Subs. by Act 47 of 1966, sec. 39 for “Election Commission” (w.e.f. 14-12-1966).

3. Subs. by Act 27 of 19S6, sec. 44, for certain words.

4. Sub-section (2) omitted by Act 47 of 1966, sec. 39 (w.e.f. 14-12-1966).

5. Ins. by Act 40 of 1961, sec. 17 (w.e.f. 20-9-1961).

6. Certain words omitted by Act 47 of 1966, sec. 39 (w.e.f. 14-12-1966).

Section 82. Parties of the petition

¹[Parties of the petition. A petitioner shall join as respondents to his petition-

(a) Where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the returned candidates; and

(b) Any other candidate against whom allegations of any corrupt practice are made in the petition]

——————–

1. Subs. by Act 27 of 1956, sec. 45, for section 82.

Section 83. Contents of petition

¹[Contents of petition. (1) An election petition-

(a) Shall contain a concise statement of the material facts on which the petitioner relies;

(b) Shall set forth full particulars of any corrupt practice that the petitioner alleged including as full statement as possible of the names of the parties alleged to have commission such corrupt practice and the date and place of the commission of each such practice; and

(c) Shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

²[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by all affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.]

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same matter as the petition.

——————–

1. Subs. by Act 27 of 1956 sec. 46, for section 83.

2. Ins. by Act 40 of 196 1, sec. 18 (w.e.f. 20-9-1961).

Section 84. Relief that may be claimed by the petitioner

¹[Relief that may be claimed by the petitioner. A petitioner may, in addition to claiming a declaration that the election of all orally of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected

——————–

1. Subs. by Act 27 of 1956, see. 47, for section 84

Section 85. Procedure on receiving petition

Rep. by the Representation of the people (Amendment) Act, 1966 (47 of 1966), sec. 40

Section 86. Trial of election petitions

¹[Trial of election petitions. (1) The High Court shall dismiss all election petition which does not comply with the provisions of section 81 or section 82 or section 117.

Explanation. An order of the High Court dismissing all election petition under this sub-section shall he deemed to be an order made under clause (a) of section 98.

(2) As soon as any be after an election petition has been presented to the High Court, it shall be referred to the judges who has or have been assigned by file Chief Justice for the trial of election petitions under sub-section (2) of section 80A.

(3) Where more election petitions than one are presented lo the High Court in respect of the same election, all of them shall be referred for trial to the same judge who may, in his discretion, try them separately or in one or more groups.

(4) Any candidate not already a respondent shift, upon application made by him to the High Court within fourteen days front the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.

Explanation. For the purposes of this subsection and of section 97, the trial of a petition shall be deemed to commence on the date fixed for file respondents to appear before the High Court and answer the claim or claim made in the petition.

(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as in may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged it) the petition.

(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons lo be recorded.

(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months front the date on which the election petition is presented to the High Court for trial.

——————–

1. Subs. by Act 47 of’ 1966, sec. 41, for sections 86 to 92 (w.e.f. 14-12-1966)

Section 87. Procedure before the High Court

(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall he tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of’ 1908) to the trial of suits:

Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.]

Section 93. Documentary evidence

Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence at the trial of an election petition on the ground that it is not duly stamped or registered.

Section 94. Secrecy or voting not to be infringed

No witness or other person shall be required to state for whom he his voted at an election.

Section 95. Answering of criminating questions and certificate of indemnity

(1) No witness shall be excused from answering any question as to any matter relevant to a matter in issue in the trial of an election petition upon the ground that the answer to such question may criminate or may lend to criminate him, or that it may expose or may tend to expose him to any penalty or forfeiture:

Provided that-

(a) A witness, who answers truly all questions which he is required to answer shall be entitled to receive a certificate of certificate of indemnity from ¹[the High Court]; and

(b) An answer given by a witness to a question put by or before ¹[the High Court] shall not, except in the case of any criminal proceeding for perjury in respect of the evidence, be admissible in evidence against in any civil or criminal proceeding.

(2) When a certificate of indemnity has been granted to any witness, it may be pleaded by him in any Court and shall be a full and complete defence to or upon any charge under Chapter IXA of the Indian Penal Code (45 of 1860), or Pail VII of this Act arising out of the matter to which such certificate relates, but it shall not be deemed to relieve him front any disqualification in connection with an election imposed by this Act or any other law.

——————-

1. Subs. by Act 47 of’ 1966, sec. 42, for “the Tribunal” (w.e.f 14-12-1966)

Section 96. Expenses or witnesses

The reasonable expenses incurred by any person in attending to give evidence may be allowed by ¹[the High Court to such person and shall, unless ¹[the High Court] otherwise directs, be deemed to be part of the costs.

——————–

1. Subs. by Act 47 of 1966, sec. 42, for “the Tribunal” (w.e.f. 14-12-1966.)

Section 97. Recrimination when seat claimed

(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he hid beer the returned candidate and a petition had been presented calling in question his election:

Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of’ ¹[commencement of the trial], given notice to ²[the High Court] of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively.

(2) Every notice referred to in sub-section (I) shall be accompanied by the statement and ³[***] particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner.

——————–

1. Subs. by Act 27 of 1956, sec. 52, for “the publication of the election petition under section 90”.

2. Subs. by Act 47 of 1966, sea. 42, for “the Tribunal” (w.e.f. 14-12-1966)

3. The words “list of” omitted by Act 27 of 1956, sec. 52.

Section 98. Decision of the High Court

At the conclusion of the trial of the an election petition ¹[the High Court] shall make in order-

(a) Dismissing the election petition; or

(b) Declaring the election of ²[all or any of the returned candidates] to be void; or

(c) Declaring the election of ⁴[all or any of the returned candidates] to be void and the petitioner or any other candidate to have been duly elected ³[***]

——————–

1 Subs by Act 47 of 1966, sec. 42, for “the Tribunal” (w.e.f. 14-12-1966.)

2. Subs. by Act 27 of 1956, sec. 53, for “the returned candidate”.

3. The word “or” and clause (d) omitted by Act 27 of’ 1956, sec. 53.

Section 99. Other orders to he made by the High Court

(1) All the time of making an order under section 98 ¹[the High Court] shall also make an order-

²[(a) Where any charge is made in the petition of any corrupt practice having been Committed at the election, recording-

(i) Finding whether any corrupt practice has or has not been proved to hive been committed ³[***] at election, and the nature of that corrupt practice; and

(ii) The names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and]

(b) Fixing the total amount of cost payable and specifying the persons by and to whom costs shall be paid:

Provided that ⁴[a person who is not a party to the petition shall not be named] in the order under sub-clause (ii) of clause (a) unless-

(a) He has been given notice to appear before ⁵[the High Court] and to show cause why lie should not be so named; and

(b) If he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who his already been examined by ⁶[the High Court] and his given evidence against him, of calling evidence in his defence and of being heard.

⁷[(2) In this section and in section I 00, the expression “agent” has the same meaning as in section 123.]

——————–

1. Subs. by Act 47 of 1966, sec. 42, for “the Tribunal” (w.e.f. 14-15-1966.)

2. Subs. by Act 27 of 1956, sec. 54, for clause (a).

3. Certain words omitted try Act 58, sec. 29.

4. Subs. by Act 27 of 1956, sec. 54, for “no person shall be named”.

5. Subs. by Act 47 of 1966, sec. 42, for “the Tribunal” (w.e.f. 14-12-1966).

6. Subs. by Act 47 of 1966, sea. 42, for “the Tribunal” (w.e.f. 14-12-1966).

7. Subs. by Act 27 of 1956, sec. 54, for subsection (2).

Section 100. Grounds for declaring election to be void

¹[ (1) Subject to the provisions of sub-section (2) if ²[the High court] is of opinion-

(a) That on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act ³[or the Government of Union Territories Act, 1963 (20 of 1963)]; or

(b) That any corrupt practice has been continued by a retuned candidate or his election agent or by other person with the consent of retuned candidate or his election agent; or

(c) That any nomination has been improperly rejected; or

(d) That the result of the election, in so far as it concerns a returned candidate, has been materially affected-

(i) By the improper acceptance or any nomination, or

(ii) By any corrupt practice committed in the interests of the returned candidate ⁴[by an agent other than his election agent], or

(iii) By the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) By any noncompliance with the provisions of the Constitution or of’ this Act or of any rules or orders made under this Act,

⁵[the High Court] shall declare the election of the returned candidate to be void.]

⁶[(2) If in the opinion of 5[the High Court], a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice ⁷[* **] but ⁵[the High Court] is satisfied-

(a) That no such corrupt practice was committed at there election by the candidate or his election agent, and every such corrupt practice was committed contrary to the order, and ⁸[without the consent], of the candidate or his election agent;

⁹[* * *]

(c) That the candidate and his election agent took all reasonable means for preventing the commission of corrupt ¹⁰[***] practices at the election: and

(d) That in all other respects the election was free from any corrupt ¹⁰[* * *], practice on the part of’ the candidate or any of his agents,

Then ⁵[the High Court] may decide fiat the election of the returned candidate is not void.

——————–

1. Subs. by Act 27 of’ 1056, sec. 55, for sub-sections (1) and (2)

2. Subs. by Act 27 of 1966, sea. 42, for “the Tribunal” (w.e.f. 14-12-1966)

3. Ins. by Act 20 of I963, sec. 57 and the Second Schedule, the words “or the Government of Part C States Act, 1951 (49 of 1951)” were omitted by the Adaptation of Laws (No.2) Order, 1956

4. Subs. by Act 58 of 1958, sec. 30, words.

5. Subs. by Act 47 of’ 1966, sec. 42, for “the Tribunal” (w.e.f.14-12-1966)

6. Sub-section (3) renumbered as sub-section (2) by Act 27 of’ 1956, sec. 55

7. The words and figures “specified in section 123” omitted by Act 27 of 1956, sec. 55.

8. Subs. by Act 27 of’ 1956, sec. 55, for “without the sanction or connivance”

9. Clause (1)) omitted by Act 58 or 1958, sec. 30

10. The words “or illegal” omitted by Act 27 of 1956, sec. 55.

Section 101. Grounds for which a candidate other than the returned candidate may be declared to have been elected

If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and ¹[the High Court] is of opinion-

(a) That in fact the petitioner or such other candidate received a majority of the valid votes; or

(b) That but for the votes obtained by the returned candidate by corrupt ²[* * *] practices the petitioner or such other candidate would have obtained a majority of the valid votes,

³[the High Court] shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.

——————–

1. Subs. by Act 47 of’ 1966, sec. 42, for “the Tribunal” (w.e.f.14-12-1966)

2. The words “or illegal” omitted by Act 27 of 1956, sec. 56.

3. Subs. by Act 47 of 1966, sec. 42, for “the tribunal” (w.e.f. 14-12-1966).

Section 102. Procedure in case of an equality of votes

If during the trial of an election petition it appears that there is all equality of votes between any candidates at the election and that the addition of a vote would entitle any of those candidates to be declared elected, then-

(a) Any decision made by the returning officer under the provisions of this act shall, in so far as it determines the question between those candidates, be effective also for the purposes of the petition; and

(b) In so for as that question is not determined by such a decision ¹[the High court] shall decide between them by lot and proceed as if the one on whom the lot then falls had received an additional vote.

——————–

1. Subs. by Act 47 of 1966, sec. 42, for “the tribunal” (w.e.f. 14-12-1966).

Section 103. Communication of orders or the High Court

¹[Communication of orders or the High Court. The High Court shall, as soon as may be after the conclusion of the trial of all election petition, Ultimate the substance of the decision to the Election Commission and the Speaker or Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned and, as soon as may be thereafter, shall send to the Election Commission an authenticated copy of the decision.]

——————–

1. Subs. by Act 47 of 1066, sec. 43, for section 103 (w.e.f. 14-12-1966).

Section 104. Difference of opinion among the members of the Tribunal

Rep. By the Representation of the People (Second Amendment) Act, 1956 (27 of 1956), sec. 57.

Section 105. Orders of the ‘Tribunal to be final and conclusive

Rep. by the Representation of the People (Second Amendment) Act, 1956 (27 of 1956), sec. 58

Section 106. Transmission or order to the appropriate authority, etc., and its publication

As soon as may be after the receipt of any order made by ¹[the High Court] under section 98 or section 99, the Election Commission shall forward copies of the order to the appropriate authority and, in the case where such order relates to an election ²[* * *] to a House of Parliament or to an election to the House or a House of the Legislature of a State, also to the Speaker or Chairman, as the case may be, of the House concerned and ³[shall cause the order to be published-

(a) Where the order relates to an election to a House of Parliament in the Gazette of India as well as in the Official Gazette of the State concerned; and

(b) Where the order relates to an election to the House or a House of the Legislature of the State, in the Official Gazette of the State]

——————–

1. Subs. by Act 47 of 1966, sec. 42, for “the tribunal” (w.e.f. 14-12-1966)

2. The words and brackets “(other than a primary election)” omitted by Act 27 of 1956, sec. 59.

3. Subs. by Act 27 of 1956, sec. 59, for certain words.

Section 107. Effect of order of the High Court

¹[Effect of order of the High Court. ²[(1) Subject to the provisions contained in Chapter IV A relating to the stay of operation of an order of the High Court under section 98 section 99, every such order shall take effect as soon as it is pronounced by the High Court.]

——————–

1. Subs. by Act 27 of 1956, sec. 60, for section 107.

2. Subs. by Act 47 of 1966, sec. 44, for sub-section (1) (w.e.f. 14-12-1966).

Section 108. Withdrawal of petitions before appointment of Tribunal

Rep. by the Representation of the People (Amendment) Act, 1966 (47 of 1966), sec. 45

Section 109. Withdrawal of election petitions

¹[Withdrawal of election petitions. (1) An election petition may be withdrawn only by leave of the High Court.

(2) Where an application for withdrawal is made under subsection (1), notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the Official Gazette.

——————–

1. Subs. by Act 47 of 1966, sec. 46, for section 109 and 110 (w.e.f. 14-12-1966).

Section 110. Procedure for withdrawal of election petitioner

(1) If there are more petitioners than one, no application to withdraw an election petition shall be made except with the consent of all the petitioners.

(2) No application for withdrawal shall be granted if, in the opinion of the High Court, such application has been induced by any bargain or consideration which ought not to be allowed.

(3) If the application is granted-

(a) The petitioner shall be ordered to pay the costs of the respondents there to fore incurred or such portion thereof as the High Court may think fit;

(b) The High Court shall direct that the notice of withdrawal shall be published in the Official Gazette and in such other manner as it may specify and thereupon the notice shall be published accordingly;

(c) A person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in place of the party within, wing, and upon compliance with the condition, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the Court may deem fit.]

Section 111. Report or withdrawal by the High Court to the Election Commission

When an application for withdrawal is granted by ¹[the High Court] and no person has been substituted as petitioner under clause (c) of subsection (3) of section 110, in place of the party withdrawing ¹[the High Court] shall report the fact to the Election Commission ²[and thereupon the Election Commission shall publish the report in the Official Gazette].

——————–

1. Subs. by Act 47 o 1966, sec. 47, for “the Tribunal” (w.e.f’. 14-12- 1966).

2. Ins. by Act 27 of 1956, sec. 61.

Section 112. Abatement of election petitions

¹[Abatement of election petitions. (1) An election petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners.

(2) Where an election petition abates under sub-section (1), the High Court shall cause the fact to be published in such manner as it may deem tit.

(3) Any person who might himself have been a petitioner may within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions if any,, as security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit.]

——————–

1. Subs. by Act 47 of 1966, sec. 48, for sections 112 to 115 (w.e.f. 14-12-1966).

Section 116. Abatement or substitution on death of respondent

If be fore the conclusion of the trial of an election petition, the sole respondent dies or gives notice that he does not intend to oppose the petition or any of the respondents dies or gives such notice and there is no other respondent who is opposing the petition, ¹[the High Court] shall cause notice of such event to be published in the Official Gazette, and thereupon any person who might have been a petitioner may, within fourteen days of such publication, apply to be substituted in place of such respondent to oppose the petition, and shall be entitled to continue the proceedings upon such terms is ¹[the High Court] may think tit.

——————–

1. Subs. by Act 47 of 1966, sec. 49, for “the Tribunal” (w.e.f. 14-12-1966).

Section 116 A. Appeals to Supreme Court

¹[CHAPTER IV A.Appeals

——————–

1. Ins. by Act 27 of 1956, sec. 62.

¹[116A. Appeals to Supreme Court

(1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the Supreme Court on any question (whether of law or fact) from every order made by a High Court under section 98 or section 99

(2) Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the High Court under section 98 or section 99:

Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient, clause for not preferring the appeal within such period.

——————–

1. Subs. by Act 47 of 1966, sec. 50, for section 116A and 116B (w.e.f. 14-12-1966).

Section 116 B. Stay of operation of order of High Court

(1) An application may be made to the High Court for stay of operation of an order made by the High Court under section 98 or sections 99 before the expiration of the time allowed for appealing there form and the High Court may, on sufficient cause being shown and on such terms and conditions a it may think fit, stay the operation of the order; but no application for stay shall be made to the High Court after an appeal has been preferred to the Supreme Court.

(2) Where an appeal has been preferred against all order made under section 98 or section 90, the Supreme Court may, on sufficient cause being shown and on such terms and conditions as it may think fit, stay the operation of the order appealed from.

(3) When the operation of all order is stayed by the High Court or as the else may be, the Supreme Court, the order shall be deemed never to have taken effect Under Sub-section (1) of section 107; and a copy of the stay order shall immediately be sent by the High Court on as file else may be, the Supreme Court, to the Election Commission and the Speaker or Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned.

Section 116 C. Procedure in appeal

(1) Subject to the provisions of this Act and of the Rules, if any, a made the re-under every appeal shall be heard and determined by the Supreme Court as nearly as may be in accordance with the procedure applicable to the hearing and determination of an appeal from any final order passed by a High Court in the exercise of its original civil jurisdiction; and all the provisions of the code of Civil Procedure, 1908 (5of 1908) and the Rules of the Court (including provisions as to the furnishing of security and execution of any order of the Court) shall, so far as may be, apply in relation to such appeal.

(2) As soon as an appeal is decided, the Supreme Court shall intimate the substance of the decision to the Election Commission and the Speaker of Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned and as soon as may be thereafter shall send to the Election Commission all authenticated copy of the decisions and upon its receipts the Election Commission shall–

(a) Forward copies thereof to the authorities to which copies of the order of the High Court were forwarded under section 160; and

(b) Cause the decision to be published in the Gazette or Gazettes in which that order was published under the said section.]

Section 117. Security for costs

¹[Security for costs. (1) At the time of presenting at election petition, the petitioner shall deposit in the High Court in accordance with the Rules of the High Court a suite of two thousand rupees is security for the costs of the petition.

(2) During the course of the tribal of an election petition, the High Court rally, at anytime call upon the petitioner to give such further security for costs as it may direct.

——————–

1. Subs. by Act 47 of’ 1966, sec. 51, for sections 117, 118, 119, 119A and 120 (w.e.f’. 14-12-1966)

Section 118. Security for costs from a respondent

No person shall be entitled to be joined as a respondent under sub-section (4) of section 86 unless he has given such security for costs as the High Court may direct.

Section 119. Costs

Costs shall be in the discretion of the High Court

Provided that where a petition is dismissed under clause (a) of section 98, the returned candidate shall be entitled to the costs incurred by him in contesting the petition and accordingly the High Court shall make an order for costs in favour of the returned candidate.]

Section 121. Payment of costs out of security deposits and return of such deposits

(1) If in any order as to costs under the provisions of this Part there is a direction for payment of costs by any party to any person, such costs shall, if they have not been already paid, be paid in full, or so far as possible out of the security deposit and the further security deposit, if any, made by such party under this part on an application made in writing in that behalf ¹[within a period of one year, from the date of such order] to ²[the High Court] by the person in whose favour the costs have been awarded.

(2) If there is any balance left of any of the said security deposits after payment under subsection (1) of the costs referred to in that subsection, such balance, or where no costs have been awarded or no application is aforesaid has been made within the said period of ³[one year] the whole of the said security deposits may, on an application made in that behalf in Writing to ²[the High Court] by the person by whom the deposits have been made or if such person dies after making such deposits by legal representative of such person, be returned to the said person or to his legal representative, as the case may be.

——————–

1. Subs. by Act 58 of’ 1958, sec. 34, for certain words

2. Subs. by Act 47 of 1966, sec. 52, for ‘the Election Commission” (w.e.f. 14-12-1966).

3. Subs. by Act 58 of 1958, sec. 34, for “six months”.

Section 122. Execution of orders as to costs

Any order as to costs under the provisions of this part may be produced before the principal civil court of original jurisdiction within the local limits of whose jurisdiction any person directed by such order to pay any sum, of money has a place of residence of business, o where such place is within a presidency town, before the court of small causes having jurisdiction there, and such court shall execute the order or cause the same to be executed in the same manner, and by the same procedure as if it were a decree for the payment of money made by itself in a suit:

Provided that where any such costs or any apportion thereof may be recovered by an application made under subsection (1) of section 121, no application shall lie under this section ¹[within a period of one year from the date of such order] unless it is for recovery of the balance of any costs which has been left un realised after an application has been made under that subsection owing to the insufficiency of the amount of the security deposits referred to in that sub-section.

——————–

1. Subs. by Act 58 of 1958, sec. 35, for certain words.

Section 123. Corrupt practices

PART VII

¹[CORRUPT PRACTICES AND ELECTORAL OFFENCES]

²[CHAPTER I. Corrupt Practices

——————–

1. Subs. by Act 27 of 1956, sec. 65, for the heading “CORRUPT AND ILLEGAL PRACTICES AND ELECTORAL OFFENCES”.

2. Subs. by Act 27 of 1956, sec. 66, for Chapters 1 and 11 (sections 123 to 125).

Section 123. Corrupt practices.

The following shall be deemed to be corrupt practices for the purposes of this Act: -

¹[(1) “Bribery” that is to say-

(A) Any gift offer or promise by a candidate of his agent or by any other person with the consent of a candidate or his election agent of any gratification to any person whomsoever, with the objects, directly or indirectly of inducing-

(a) A person to stand or not to stand as, or ²[to withdraw or not to withdraw] from being a candidate at an election, or

(b) An elector to vote or refrain from voting at an election, or as a reward to-

(i) A person for having so stood or not stood, or for ³[having withdrawn or not having withdrawn] his candidature; or

(ii) An elector for having voted or refrained from voting;

(B)The receipt of, or agreement to receive, any gratification, whether as a motive or a reward

(a) By a person for standing or not standing as, or for ⁴[withdrawing or not withdrawing] from being, a candidate; or

(b) By any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate ²[to withdraw or not to withdraw] his candidature.

Explanation

For the purposes of this clause the term “gratification” is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.]

(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person ⁵[with the consent of the candidate or his election agent], with the free exercise of any electoral right:

Provided that-

(a) Without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-

(i) Thereaters any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) Kinduces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered and object of divine displeasure or spiritual censure,

Shall be deemed of interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

(b) A declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent of interference within the meaning of this clause.

⁶[(3) The appeal by a candidate or his agent or by any other person with the consent of a candidates or his election agent to vote or refrain from voting for any person on the ground of his religion, race caste community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbol such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate of for prejudicially affecting the election of bay candidate;

⁷[Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.]

(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on ground of religion race caste community or language, by a candidate or his agent or any other person with the consent of candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.]

⁸[(3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

Explanation- For the purposes of this clause, “sati” and “glorification” in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987].

(4) The publication by a candidate or his agent or by any other person ⁹[with the consent of the candidate or his election agent], of any statement of fact which is false3, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct or any candidate in relation to the candidature, or withdrawal, ¹⁰[* * *] of a try candidate, being a statement reasonably calculated to prejudice the prospects of that candidate’s election.

(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person ¹¹[with the consent of a candidate or his election agent for the use of such vehicle or vessel for the free conveyance] of any elector (other than the candidate himself the members of his family or his agent) to or from any polling station provided under section 25 or place fixed under subsection (I ) of section 29 for the poll:

Provided that the hiring of vehicle or vessel by a it elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shill not be deemed to be in corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power:

Provided further that the use of any public transport vehicle or vessel orally tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.

Explanation.In this clause, the expression “vehicle” means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for driving other vehicles or otherwise.

(6) The incurring or authorizing of expenditure lit contravention of section 77.

(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person ¹²[With the consent of the candidate or his election agent], any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate’s election ¹⁹[from any person whether or not in the service of the Government] and belonging to any of the following classes, namely–

(a) Gazetted officer, -

(b) Stipendiary judges and magistrates;

(c) Members of the armed forces of the Union;

(d) Members of the police forces;

(e) Excise officers;

¹³[(f) Revenue officers other than village revenue officers known is lambardars malguzars, patels, deshmukhs or by any other name whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge ally police functions; and)

(g) Such other class of’ persons in the service of the Government as may be Prescribed:

²⁰[(h) class of persons in the service of a local authority, university, government company or institution or concern or undertaking appointed or deputed by the Election Commission in connection with the conduct of elections.]

¹⁴[Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangement, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate’s election.]

¹⁵[(8) Booth capturing by a candidate or his agent or other person]

Explanation

(1) In this section the expression “agent” includes an election agent a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.

(2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate’s election as an election agent ¹⁶[* * *] of that candidate.]

¹⁷[(3) For the proposes of clause (7), not withstanding any thing contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (inclaling a person serving in connection with the administration of a Union territory) or of a State Government shall he conclusive proof-

(i) Of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and

(ii) Where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal from service such person ceased to be in such service with effect from the said date.]

¹⁸[(4) For the purposes of clause (8), “booth capturing” shall have the same meaning as in section 135A.]

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1. Subs. by Act 58 of 1958, sec. 36, for clause (1).

2. Subs. by Act 47 of 1966, sec. 53, for “to withdraw” (w.e.f.14-12-1966).

3. Subs. by Act 47 of 1966, sec. 53, for “having withdrawn” (w.e.f. 14-12-1966).

4. Subs. by Act 47 of 1966, sec. 53 for “withdrawing” (w.e.f. 14-12-1966).

5. Ins. by Act 58 of 1958, sec. 36.

6. Subs. by Act 40 of’ 1961, sec. 23, for clause (3) (w.e.f. 20-9-1961)

7. Ins. by Act 40 of 197.5, sec. 8 (retrospectively)

8. Ins. by Act 3 of 1988, sec. 19 (w.e.f. 21-3-1088)

9. Ins by Act 58 of 1058, sec. 36.

10. The words “or retirement from contest” omitted by Act 58 of 1958, sec. 36.

11. Ins. by Act 58 of 1958, sec. 36.

12. Subs. by Act 47 of 1966 sec. 53, “for the conveyance”(w.e.f. 14-12-1966).

13. Subs. by Act 58 of 1958, sec. 36, for sub-clause (f).

14. Ins. by Act 40 of 1975, sec. 8 (retrospectively)

15. Ins. by Act 1 of 1989, sec. 13 (w.e.f. 15-3-1989)

16. The words “or a polling agent or a counting agent” omitted by Act 47 of 1966, sec. 53 (w.e.f. 1412-1966).

17. Added by Act 40 of 1975, sec. 8 (retrospectively)

18. Ins. by Act I of 1989, sec. 13 (w.e.f. 15-3-1989)

19. Subs. by Act No. 41 of 2009 w.e.f. 22.12.2009.

20. Ins. by Act No. 41 of 2009 w.e.f. 22.12.2009.

Section 125. Promoting enmity between classes in connection with election

¹[Promoting enmity between classes in connection with election. Any person who in connection with an election underlies Act promotes or attempts to promote on grounds of religion, rice, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

——————–

1. Ins. by Act 40 of 1961, sec. 24 (w.e.f. 20-9-1961)

Section 126. Prohibition of public meetings during period of forty-eight hours ending with hour ending for conclusion of poll

¹[Prohibition of public meetings during period of forty-eight hours ending with hour ending for conclusion of poll. (1) No person shall-

(a) Convene, hold, attend, or address any public meeting or procession in connection with an election; or

(b) Display to the public any election matter by means of cinematograph, television or other similar apparatus-, or

(c) Propagate any election matter to the public by holding or by arranging the holding of, any musical concert or any theatrical performance or any other entertainment or amusement with a view to attracting the members of the public thereto, in any polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in that polling area.

(2) Any, person who contravenes the provision of sub-section (l) shall be punishable with imprisonment for a term which may extend to two years or with fine or with both.

(3) In this section, the expression “election matter” means any matter intended or calculated to influence or affect the result of an election.]

——————–

1. Subs. by Act 21 of 1996, sec. 10 (w.e.f. 1-8-1996).

Section 126 A. Restriction on publication and dissemination of result of exit polls, etc

¹[Restriction on publication and dissemination of result of exit polls, etc. (1) No person shall conduct any exit poll and publish or publicise by means of the print or electronic media or disseminate in any other manner, whatsoever, the result of any exit poll during such period, as may be notified by the Election Commission in this regard.

(2) For the purposes of sub-section (1), the Election Commission shall, by a general order, notify the date and time having due regard to the following, namely—

(a) in case of a general election, the period may commence from the beginning of the hours fixed for poll on the first day of poll and continue till half an hour after closing of the poll in all the States and Union territories;

(b) in case of a bye-election or a number of bye-elections held together, the period may commence from the beginning of the hours fixed for poll on and from the first day of poll and continue till half an hour after closing of the poll:

Provided that in case of a number of bye-elections held together on different days, the period may commence from the beginning of the hours fixed for poll on the first day of poll and continue till half an hour after closing of the last poll.

(3) Any person who contravenes the provisions of this section shall be punishable with imprisonment for a term which may extend to two years or with fine or with both.

Explanation.—For the purposes of this section,—

(a) “exit-poll” means an opinion survey respecting how electors have voted at an election or respecting how all the electors have performed with regard to the identification of a political party or candidate in an election;

(b) “electronic media” includes internet, radio and television including Internet Protocol Television, satellite, terrestrial or cable channels, mobile and such other media either owned by the Government or private person or by both;

(c) “print media” includes any newspaper, magazine or periodical, poster, placard, handbill or any other document;

(d) “dissemination” includes publication in any “print media” or broadcast or display on any electronic media.]

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1. Inserted by Act No. 41 of 2009 w.e.f. 22.12.2009

Section 126 B. Offences by companies

¹[Offences by companies. (1) Where an offence under sub-section (2) of Section 126-A has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.—For the purpose of this section,—

(a) “Company” means any body corporate, and includes a firm or other association of individuals; and

(b) “Director”, in relation to a firm, means a partner in the firm.’]

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1. Inserted by Act No. 41 of 2009 w.e.f. 22.12.2009

Section 127. Disturbances at election meetings

(1) Any person who at a public meeting to which this section applies acts, or incites others to act, in a disorderly manner for the purpose of preventing, the transaction of the business for which the meeting was called together, ¹[shall be punishable with imprisonment for a term which may extend to ²[six months or with fine which may extend to two thousand rupees], or with both.]

³[(1A) An offence punishable under subsection (1) shall be cognizable.]

(2) This section applies to any public meeting of a political character held in any constituency between the dates of the issue of a notification under this Act calling upon the constituency to elect a member or members and the date on which such election is held.

(3) If any police officer reasonably suspects any person of committing any offence under sub-section (l), he may requested so to do by the chairman of the meeting, require that person to declare to him immediately his name and address and. if that person refuses or fails so to declare his name and address or if the police officer reasonably suspects him of giving a false name or address, the police officer may arrest him without warrant.

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1. Subs. by Act I of 1989, sec. 14, words (w.e.f. 15-3-1989).

2. Subs. by Act 21 of 1996, sec. 11 (w.e.f. 1-8-1996).

3. Ins. By Act 21 of 1996, sec. 11 (w.e.f. 1-8-1996)

Section 127 A. Restrictions on the printing of pamphlets, posters, etc

¹[Restrictions on the printing of pamphlets, posters, etc. (1) No person shall print or publish or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof

(2) No person shall print or cause to be printed any election pamphlet or poster-

(a) Unless a declaration as to the identity, of the publisher thereof, signed by him, and attested by two persons to whom he is personally known, is delivered by, him to the printer ‘in duplicate; and

(b) Unless, within a reasonable time after the printing of the document, one copy of’ the declaration is sent by, the printer, together with one copy of the document.

(i) Where it is printed in the capital of the State. to the Chief Electoral Officer, and

(ii) In any other case, to the district magistrate of the district in which it is printed.

(3) For the purposes of this section, -

(a) Any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be, printing and the expression “printer” shall be construed accordingly; and

(b) “Election pamphlet or poster” means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates orally placard or poster having reference to all election, but does not include any handbill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instructions to election agents or workers.

(4) Any person who contravenes any of the provisions of sub-section (1) or subsection (2) shall be punishable with imprisonment for a term which may extend lo six months, or with fine which may extend to two thousand rupees, or with both.]

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1. Ins. By Act 40 of 1961, sec. 26 (w.e.f. 20-9-1961)

Section 128. Maintenance of secrecy of voting

(1) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law) communicate to ally person any information calculated to violate such secrecy.

(2) Any person who contravenes the provisions of subsection (1) shall be punishable with imprisonment for a term, which may extend to three months or with fine or with both.

Section 129. Officers, etc., at elections not to act for candidates or to influence voting

(1) No person who is ¹[a district election officer or a returning officer], or an assistant returning officer, or a presiding or polling officer at all election, or all officer or clerk appointed by the returning officer for the presiding officer to perform any duty in connection with all election shall in the conduct or the management of the election do any act (other than the giving of vote) for the furtherance of the prospects of the election of a candidate.

(2) No such person as aforesaid, and no member of a police force, shall endeavour-

(a) To persuide any person to give his vote it all election, or

(b) To dissuade any person from giving his vote it all election, or

(c) To influence the voting of any person at all election in any manner.

(3) Any person who contravenes the provisions of subsection (1) or subsection (2) shall be punishable with imprisonment, which may extend to six months or with title or with both.

²[(4) An offence punishable under subsection (3) shall be cognizable.]

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1. Subs. by Act 47 or 1966, sec. 55, for “a returning officer” (w.e.f. 14-12-1966).

2. Ins. by Act 47 of 1966 sec. S5 (w.c.1’. 14-12-1966).

Section 130. Prohibition of canvassing in or near polling stations

(1) No person shall, on the date or dates on which a poll is taken at any polling station, commit any of the following acts within the polling station or it in any public or private place within a distance of ¹[one hundred metres] of the polling station, namely: -

(a) Canvassing for votes; or

(b) Soliciting the vote of any elector; or

(c) Persuading any elector not to vote for any particular candidate; or

(d) Persuading any elector not to vote at the election; or

(e) Exhibiting any notice or sign (other than an official notice) relating to the election.

(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with fine, which may extend to two hundred and fifty rupees.

(3) An offence punishable under this section shall be cognizable.

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1. Subs. by Act 47 of 1966 sec. 56, for “one hundred yards” (w.e.f. 14-12-1966).

Section 131. Penalty for disorderly conduct in or near polling stations

(I) No person shall, on the date or dates on which a poll is taken at any polling station, -

(a) Use or operate within or at the entrance of the polling station, or in any public or private place in the neighborhood thereof, any apparatus for amplifying or reproducing the human voice, such as a megaphone or a loudspeaker, or

(b) Shout, or otherwise act in a disorderly manner, within or at the entrance of the polling station or in any public or private place in the neighborhood thereof,

So as to cause annoyance to any person visiting the polling station for the poll, or so as to interfere with the work of the officers and other persons on duty at the polling station.

(2) Any person who contravenes, or wilfully aids or abets the contravention of, the provisions of subsection (1) shall be punishable with imprisonment, which may extend to three months or with fine or with both.

(3) If the presiding officer of a polling station has reason to believe that any person is committing or has committed an offence punishable under this section, he may direct any police officer to arrest such parson, and thereupon the police officer shall arrest him.

(4) Any police officer may take such steps, and use such force, as may be reasonably necessary for preventing any contravention of the provisions of subsection (1), and may seize any apparatus used for such contravention.

Section 132. Penalty for misconduct at the polling station

(1) Any person who during the hour, fixed for the poll at any polling station misconducts himself or fails to obey the lawful directions of the presiding officer may be removed from the polling station by the presiding officer or by any police officer on duty or by any person authorized in this behalf by such presiding officer.

(2) The powers conferred by subsection (1) shall not be exercised so as to prevent any elector who is otherwise entitled to vote at a polling station from having an opportunity of voting at that station.

(3) If any person who has been so removed from a polling station re-enters the polling station without the permission of the presiding officer, he shall be punishable with imprisonment for a term, which may extend to three months, or with fine, or with both.

(4) An offence punishable under sub-section (3) shall be cognizable.

Section 132 A. Penalty for failure to observe procedure for voting

¹[Penalty for failure to observe procedure for voting. If any elector, to whom a ballot paper has been issued, refuses to observe the procedure prescribed for voting the ballot paper issued to him shall be liable for cancellation.]

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1. Ins. by Act 4 of 1996, sec. 2 and Sch. (w.e.f 15-5-1986).

Section 133. Penalty for illegal hiring or procuring of conveyance at elections

¹[Penalty for illegal hiring or procuring of conveyance at elections. If any person is guilty of any such corrupt practice as is specified in clause (5) of section 123 at or in connection with an election, he shall be punishable with imprisonment, which may extend to three months and with fine.]

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1. Subs. by Act 21 of 1996, sec. 12 (w.e.f 1-8-1996).

Section 134. Breaches of official duty in connection with elections

(1) If any person to whom this section applies is without reasonable cause guilty of any act or omission in breach of his official duty, he shall be punishable with fine, which may extend to five hundred rupees.

¹[(IA) An offence punishable under sub-section (1) shall be cognizable.]

(2) No suit or other legal proceedings shall lie against any such person for damages in respect of any such act or omission as aforesaid.

(3) The persons to whom this section applies are the ²[***] ³[district election officers, returning officers], assistant returning officers, presiding officers, polling officers and any other person appointed to perform any duty in connection with ⁴[***] the receipt of nominations of with drawl of candidatures, or the recording or counting of votes at an election- and the expression “official duty” shall for the purposes of this section be construed accordingly, but shall not include duties imposed otherwise than by or under this Act ²[***].

——————–

1. Ins. by Act 47 of 1966, sec. 58, (w.e.f. 14-12-1966).

2. Certain words omitted by Act 58 of 1958, sec. 37.

3. Subs. by Act 47 of 1966, sec. 58, for “returning officers” (w.e.f. 14-12-1966).

4. The words ‘the preparation of an electoral roll” omitted by Act 59 of 1958, sec. 37.

Section 134 A. Penalty for Government servants for acting as election agent, polling agent or counting agent

¹[Penalty for Government servants for acting as election agent, polling agent or counting agent. If any person in the service of the Government acts as an election agent or a polling agent or a counting agent of a candidate at an election, he shall be punishable with imprisonment for a term which may extend to three months, or with fine, or with both.]

——————–

1. Ins. by Act 47 of 1966, sec. 59 (w.e.f 14-12-1966).

Section 134 B. Prohibition of going armed to or near polling station

¹[Prohibition of going armed to or near polling station. (1) No person, other than the returning officer the presiding officer, any police officer and any other person appointed to maintain peace and order at a polling station who is on duty at the polling station., shall, on a polling day, go armed with anus, as defined in the Arms Act, 1959, of any kind within the neighbourhood of a polling station.

(2) If any person contravenes the provisions of sub-section (1), he shall be punishable with imprisonment for a term, which may extend to two years or with fine, or with both.

(3) Notwithstanding any thing contained in the Arms Act, 1959 (54 of 1959), where a person is convicted of an offence under this section, the arms as defined in the said Act found in his possession shall be liable to confiscation and the licence granted in relation to such an-ns shall be deemed to have been revoked under section 17 of that Act.

(4) An offence punishable under subsection (2) shall be cognizable.]

——————–

1. Ins. by Act 21 of 1996, sec. 13 (w.e.f. 1-9-1996).

Section 135. Removal of ballot papers from polling station to be an offence

(1) Any person who at any election ¹[unauthorisedly] takes, or attempts to take, a ballot paper out ,of a polling station, or willfully aids or abets the doing of any such act, shall be punishable with imprisonment for a term which may extend to one year or with fine, which may extend to five hundred rupees or with both.

(2) If the presiding officer of a polling station has reason to believe that any person is committing or has committed an offence punishable under subsection (1), such officer may, before such person leaves the polling station, arrest or direct a police officer to arrest such person and may search such person or cause him to be searched by a police officer:

Provided that when it is in necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency.

(3) Any ballot paper found upon the person arrested on search shall be made over for safe custody to a police officer by the presiding officer, or when the search is made by a police officer, shall be kept by such officer in safe custody

(4) All offence punishable under sub-section (1) shall be cognizable.

——————–

1. Subs. by Act 21 of 1996, sec. 14 (w.e.f. 1-8-1996).

Section 135 A. Offence of booth capturing

¹[Offence of booth capturing. ²[(1)] Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which 3[shall not be less than one year but which may extend to three years and with fine, and where such offence is committed by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine.]

Explanation. For the purposes of ³[this sub-section and section 20 B] “booth capturing” includes, among other things all or any of the following activities, namely: -

(a) Seizure of a polling station or a place fixed for the poll is an person or persons making polling authorities surrender the ballot papers or voting machines and doing of any other Act, which affects the orderly, conduct of elections:

(b) Taking possession of a polling station or a place fixed for poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and ²[prevent others from free exercise of their right to vote;

(c) ³[Coercing or intimidating or threatening directly or indirectly,] any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote,

(d) Seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes,

(e) Doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate.]

⁴[(2) An offence punishable under subsection (1) shall be cognizable.]

——————–

1. Ins. by Act I of 1989, sec. 15 (w.e.f. 15-3-1989).

2. Section 135A renumbered as sub-section (1) there of by Act 2l of 1996, sec. 15 (w.e.f. 1-8-1996).

3. Subs. by Act 21 of 1996, sec. 15 (w.e.f. 1-8-1996).

4. Ins. by Act 21 of’ 1996, sec. 15 (w.e.f 1-8-1996)

Section 135 B. Grant of paid holiday to employees on the day of poll

¹[Grant of paid holiday to employees on the day of poll. (1) Every person employed in any business, trade, industrial undertaking or any other establishment and entitled to vote at an election to the House of the People or the Legislative Assembly of a State shall on the day of poll, be granted a holiday.

(2) No deduction or abatement of the wages of any such person shall be made on account of a holiday having, been granted in accordance with sub-section (1) and if such person is employed on the basis that he would not ordinarily receive wages for such a day he shall nonetheless be paid for such day the wages be would have drawn had not a holiday been granted to him on that day.

(3) If an employer contravenes the provisions of subsection (1) or sub-section (2), then such employer shall be punishable with fine, which may extend to five hundred rupees.

(4) This section shall not apply to any elector whose absence may cause danger or substantial loss in respect of the employment in which he is engaged.

——————–

1. Ins. by Act 21 of 1996, sec. 16 (w.e.f 1-8-1 996).

Section 135 C. Liquor not to be sold, given or distributed on polling day

(1) No spirituous, fermented or intoxicating liquors or other substances of a like nature shall be sold, given or distributed at a hotel, eating house, tavern, shop or any other place, public or private within a polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for aii3, election in that polling area.

(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term, which may extend to six months or with fine, which may extend to two thousand rupees, or with both.

(3) Where a person is convicted of an offence under this section, the spirituous, fermented or intoxicating liquors or other substances of a like nature found in his possession shall be liable to confiscation and the same shall be disposed of in such manner is may be prescribed.]

Section 136. Other offences and penalties therefor

(1) A person shall be guilty of an electoral offence if at any election he-

(a) Fraudulently defaces or fraudulently destroys any nomination paper; or

(b) Fraudulently defaces destroys or removes any list, notice or other document affixed by or under the authority of returning officer; or

(c) Fraudulently defaces or fraudulently destroys any ballot paper or the official mark on any ballot paper or any declaration of identity or official envelope used in connection with voting by postal ballot; or

(d) Without due author supplies any ballot paper to any person ¹[or receives any, ballot paper from any person or in possession of any ballot paper] or

(e) Fraudulently puts into any ballot box anything other than the ballot paper which he is authorised by law to put in; or

(f) Without due authority destroys, takes, opens or otherwise interferes with any ballot box or ballot papers than in use for the purposes of the election; or Fraudulently or without due authority, as the case may be, attempts to do any of the foregoing acts or wilfully aids or abets the doing of any such acts.

(2) Any person guilty of an electoral offence under this section shall, -

(a) If he is returning officer or an assistant returning officer or a presiding officer at a polling station or any other officer or clerk employed on official duty in connection with the election be punishable with imprisonment for a term, which may extend to two years or with fine or with both;

(b) If he is any other person, be punishable with imprisonment for a term, which may extend to six months or with fine or with both.

(3) For the purposes of this section, a person shall be deemed to be on official duty if his duty is to take part in the conduct of an election or part of an election including the counting of votes or to be responsible after ail election for the used ballot papers and other documents in connection with such election but the expression “official duty” shall not include any duty imposed otherwise than by or under this Act ²[* * *]

³[(4) An offence punishable under subsection (2) shall be cognizable.]

——————–

1. Ins. by Act 27 of 1956, sec. 70.

2. Certain words omitted by Act 58 of 1958, sec. 39.

3. Subs. by Act 47 of’ 1966, sec. 60, for subsection (4) (w.e.f 14-12-1966)

Section 137. Prosecution regarding certain offences

Rep. by the Representation of the People (Amendment) Act, 1966(47 of 1966), sec. 61

Section 138. Amendment of Act 5 of 1898

Rep. by the Repealing and Amending Act, 1957 (36 o 1957), sec. 2 and the First,Such.

Section 139-145. Sections

Rep. by the Representation o the People (Amendment) Act, 1966 (47 of 1966), sec.- 62.

Section 146. Powers of Election Commission

¹[Chapter IV.Powers of Election Commission in connection with Inquiries as to Disqualifications of member

——————–

1. Ins. by Act 17 of 1965, sec.2.

146. Powers of Election Commission.

(1) Where in connection with the tendering of any opinion to the President under article 103 or, as the case may be, under subsection (4) of section 14 of the Government of Union Territories Act, 1963 (20 of 1963), or to the Governor under article 192, the Election Commission considers it necessary or proper to make an inquiry, and the Commission is satisfied that on the basis of the affidavits filed and the documents produced in such inquiry by the parties concerned of their own accord. it cannot come to a decisive opinion on the matter which is being inquired into, the Commission shall have, for the purposes of such inquiry, the powers of a civil court, while trying a suit under the Code of Civil Procedure. 1909 (5 of 1908), in respect of the following matters, namely: -

(a) Summoning and enforcing the attendance of any person and examining him on oath;

(b) Requiring the discovery and production of any document or other material object producible as evidence;

(c) Receiving evidence on affidavits;

(d) Requisitioning, any public record or a copy thereof from any Court or officer

(e) Issuing commissions for the examination of witnesses or documents.

(2) The Commission shall also have the power to require any person, subject to any privilege which may be claimed be that person under any law for the time being in force., to furnish information on such points or matters as in the opinion of the Commission may be useful for or relevant to, the subject-matter of the inquiry.

(3) The Commission shall be deemed to be a civil court and when any such offence, as is described in section 175, section 178, section 179, section 190 or section 229 of the Indian Penal Code (45 of 1860) is committed in the view or presence of the Commission, the Commission may after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1899 (5 of 1998) 1[to forward the case to a magistrate having jurisdiction to try the same and the magistrate to whom an), such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under section 482 of the Code of Criminal Procedure, 1999 (5 of 1898)¹.

(4) Any proceeding before the Commission shall be deemed a Judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).

——————–

1. See now the corresponding provisions of the Code of Criminal Procedure, 1973 (Act 2 of 1974).

Section 146 A. Statements made by person to the Election Commission

No statement made by a person in the course of giving evidence before the Election Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a Prosecution for giving false evidence by such statement:

Provided that the statement-

(a) Is made in reply to a question which he is required by the Commission to answer, or

(b) Is relevant to the subject matter of the inquiry.

Section 146 B. Procedure to be allowed by the Election Commission

The Election Commission shall have the power to regulate its own procedure (including the fixing of places and times of its sittings and deciding whether to sit in public or in private.)

Section 146 C. Protection of action taken in good faith

No suit, prosecution or other legal proceeding shall lie against, the Commission or any person acting under the direction of the Commission in respect of, anything which is in good faith done or intended to be done in pursuance of the foregoing provisions of this Chapter or of any order made there under respect of the tendering of any opinion by the Commission to the President or, as the case may be, to the Governor or in respect of the publication, by or under the authority of the Commission of any such opinion paper or proceedings.

Section 147. Casual vacancies in the Council or States

¹[(1)] When before the expiration of the term of office of a member elected to the Council of States, his seat becomes vacant or is declared vacant or his election to the Council of States is declared void, the Election Commission shall by in notification in the Gazette of India call upon the elected members of the Legislative Assembly or the members of the electoral college concerned ²[* * *], as the case may be, to elect a person or the purpose of filling the vacancy so caused before Such date is may be specified in the notification and provisions of this Act and of the rules and orders made herein under shall apply, is far as may be, in mention to the election of a member to fill such vacancy.

³[(2) As soon as may be after the date of commencement of Constitution (seventh Amendment) Act, 1956, bye-election shall be field to fill the vacancies existing on trial date in the seats allotted to the States of’ Assam, Orissa and Uttar Pradesh and the Union territories of Delhi, Himachal Pradesh* and Manipur^*.]

——————–

1. Section 147 renumbered as sub-section (1) of that section by the adaptation of laws (No. 2) Order, 1956.

2. Certain words omitted by Act 49 of 1951, sec. 44 and the Fifth Sch.

3. Ins. by the Adaptation of laws (No. 2) Order, 1956.

* Now it has become State.

Section 148. Casual vacancies in the electoral colleges for certain Union territories

Rep. by the Territorial Council Act, 1950 (103 of 1956), sec. 66

Section 149. Casual vacancies in the House of the people

(1) When the seat of a member elected to the House of the People becomes vacant or is declared vacant or his election to the House of the People is declared void, the Election Commission shall, subject to the provisions of sub-section (2) by a notification in the Gazette of India, call upon the Parliamentary constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notifications and the provisions of this Act and of the rules and orders made thereunder shall apply, as for as may be, in rotation to the election of a member to fill such vacancy.

(2) If the vacancy so caused be a vacancy in a seat reserved in any such constituency for the Scheduled Castes or for any Scheduled Tribes, the notification issued under subsection (1) shall specify that the person to fill that seat shall belong to the Scheduled Castes or to such Scheduled Tribes, as the case may be.

Section 150. Casual vacancies in the State Legislative Assemblies

(1) Which the scat of a member elected to the Legislative Assembly of a State becomes vacant or is declared vacant or his election to the Legislative Assembly is declared told, the Election Commission shall, subject to the provisions of sub-section (2). by a notification in the Official Gazette, call upon the Assembly constituency concerned to elect a person for the purpose of filling the vacant,” so caused before such date as may be specified in the

(2) If the vacancy so caused be a vacancy in a seat reserved in any such constituency for the Scheduled Caste or for any Scheduled Tribes the notification issued under sub-section (1) shall specify that the person to fill that seat shall belong to the Scheduled Castes or to such Scheduled Tribes as the case not may be. Scheduled Tribes, as the case may be

Section 151. Casual vacancies in the State Legislative Councils

When before the expiration of the term of office of a member elected to the Legislative Council of a State, his scat becomes vacant or is declared vacant or his election to the Legislative Council is declared void, the Election Commission shall- by a notification in the Official Gazette, Call upon the Council constituency concerned or the members of the Legislative Assembly of the State, as the case may be, to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the miles and orders made there under shall apply as far as may be, in relation to the election of a member to fill such vacancy.

Section 151 A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151

¹[Time limit for filling vacancies referred to in sections 147, 149, 150 and 151. Notwithstanding anything contained in section 147, section 149, section 150 and section 151 a bye-election for filling any vacancy referred to in any of’ the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:

Provided that nothing contained in this section shall apply if-

(a) The remainder of the term of a member in relation to a vacancy is less than one year, or

(b) The Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period.]

——————–

1. Ins. By Act 21 of 1996, sec. 17 (w.e.f. 1-8-1996)

Section 152. List of members of the State Legislative Assemblies and electoral colleges to be maintained by returning officers concerned

(1) The returning officer for an election by the elected members of the Legislative Assembly of a State to fill a seats in the Council of States or for an election, by the members of the Legislative Assembly of a State to Fill a seat or seats in the Legislative Council of the shall, for the purposes of such election maintain is his office in the prescribed manner and form a list of elected members or a list of members, as the case may be of that Legislative Assembly.

(2) The returning officer for an election b- the members of the electoral college for a ¹[Union territory] ²[* * ] to fill a seat or seats in the Council of States shall for the purposes of such selection, maintain in his office in the prescribed manner and form a list of members of that electoral college ³[ * * *]

(3) Copies of the lists referred to in sub-section (1) and (2) shall be made available for sale.

——————–

1. Subs. by the Adaptation of Laws (N0. 2) Order 1956, for “Part C State”..

2. The words or group of such States omitted by Act 27 of 1956, sec. 77.

3. Certain words omitted by Act 49 of 1951, sec 44 and the Fifth Sch.

Section 153. Extension of time for completion of election

¹[Extension of time for completion of election. It shall be competent for the Election Commission for reasons which it consider, sufficient, to extend the time for the completion of any election by making necessary amendments in the notification issued by it under section 30 or subsection (1) of section 39.]

——————–

1. Subs. by Act 27 of 1956, sec. 78 for section 153.

Section 154. Term of office of members of the Council of States

¹[(1) Subject to the Provisions of subsections (2) and (2A), the term of office of a member of Council of States, other that member chosen to fill a casual vacancy, shall be six years.]

(2) ²[* * *] Upon the first constitution of the Council of states the President shall, after constitution with the Election Commission, make by order such provision as he thinks fit for curtailing the term of office of some of the members then chosen in order that, as nearly as may be, one-third of the members holding seats of each class shall retire in every second year thereafter.

³[(2A) In order that, as nearly as may be, one-third of the members may retire on the second day of April, 1958, and on the expiration of every second year thereafter , the President shall, as soon as may be after the commencement of the Constitution (seventh Amendment) Act, 1956 after consultation with the Election Commission make by order such provisions as he thinks fit in regard to the terms of office of the members elected under sub-section (2) of section 147.]

(3) A members chosen to fill a casual vacancy shall be chosen to serve for the remainder of his predecessor’s term of office.

——————–

1. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for sub-section (1).

2. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.

3. Ins. by the Adaptation of’ Laws (No. 2) Order, 1956

Section 155. Commencement or the term of office or members of the Council of States

(1) The term of the a member of the Council of’ States whose name is required to be notified iii the Official Gazette under section 71 shall begin on the date of such notification.

(2) The term of office of a member of the Council of States whose finite is not required to be notified under section 71 shall begin on the date of publication of the Official Gazette of the declaration containing the name of such Person is elected under section 67 or of the notification issued tender sub-Clause (i) of clause (1) of article 80 or under any other provision announcing the nomination of such person to the Council of ‘States, is the case may be.

Section 156. Term of office or members or state Legislative Councils

(1) The term of office of a member of the Legislative Council of a State, other than a member chosen to fill a casual vacancy, shall be six years, but upon the first constitution of the Council the Governor ¹[***] shall, after consultation with the Election Commission make by order such provision as he thinks lit for curtaining the term of office of some of the members then chosen in order that, as nearly as may be, one-third of the members holding seats of each class shall retire in every second year thereafter..

(2) A member chosen to fill a casual vacancy shall be chosen to serve for the remainder of his predecessor’s term of office.

——————–

1. The words “or the Rajpramukh, as the case may be” omitted by the Adaptation of Laws (No. 2) Order, 1056.

Section 157. Commencement of the term of office of members of the Legislative Councils

(1) The term of office of a member of the Legislative Council of a State whose name is required to notified in the Official Gazette under ¹[section 74] shall begin on the date of such notification.

(2) The term of office of a member of the Legislative Council of a State whose name is not required to be notified under ¹[section 74] shall begin on the date of publication in the official Gazette of the declaration containing the name of such person as elected under section 67 or of the notification issued under sub-clause (e) of clause (3) of article 171, announcing the nomination of such person to the Council, as the case may be.

——————–

1. Subs. by Act 27 of 1956, sec, 70, for “section 75”.

Section 158. Return or forfeiture or candidate’s deposit

¹[Return or forfeiture or candidate’s deposit. (1) The deposit made under section 34 or under that section read with subsection (2) of section 39 shall either be returned to the person talking it or his legal representative or be forfeited to the appropriate authority in accordance’s with the provisions of this section.

(2) Except in cases hereafter mentioned in this section, the deposit shall be returned as soon as practicable after the result of the election is declared.

(3) If the candidate is not shown in the list of contesting candidates, or if lie dies before the Commencement of the poll, the deposit shall be returned as soon as practicable after the publication of the list or a their his death, is the case may be.

(4) Subject to the provisions of subsection (3), the deposit shall be forfeited if at all election where a poll has in taken, the candidate is not elected and the number of valid votes polled by him does not exceed one-sixth of the total number of valid votes polled by all the candidates or in the case of election of more than one member at the election, one-sixth of the total number of valid votes so polled divided by the members of members to be elected:

Provided that where at in election held in accordance with the system of proportional representation by means of the single transferable vote, a candidate is not elected, the deposit made by him shall be forfeited if he does not get more than one-sixth of the number of votes prescribed in this behalf as sufficient to secure the return of a candidate.

(5) Notwithstanding anything in subsection (2), (3) and (4), -

(a) If at a general election, the candidate is a contesting candidate in more than one Parliamentary constituency or in more their one assembly constituency, not more than one of the deposits shall be returned, and the other shall be forfeited.

(b) If the candidate is a contesting candidate at all election in more than one council constituency or it all election in a Council constituency and at an election by the members of the State Legislative Assembly to fill seats in file Legislative Council, not more than one of the deposits shall be returned, and the others shall be forfeited.]

——————–

1. Subs. by Act 58 of 1958, sec. 39, for section 158.

Section 159. Staff of certain authorities to be made available for election work

¹[Staff of certain authorities to be made available for election work. (1) The authorities specified in subsection (2) shall, when so requested by a Regional Commissioner appointed under clause (4) of article 324 or the Chief Electoral Officer of the State, make available to any returning officer Such staff as may be necessary for the performance of any duties in connection with air election.

(2) The following shall be the authorities for the purposes of sub-section (1), namely:

(i) Every local authority;

(ii) Every university established or incorporated by or under a Central, Provincial or State Act;

(iii) A Government company as defined in section 617 of the Companies Act, 1956 (I of 1956);

(iv) Any other institution, concern or undertakings which is established by or under a Central, Provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government.]

——————–

l. Subs. by Act 12 of 1998, sec. 2 (w.e.f. 23-12-1997).

Section 160. Requisitioning of Premises, vehicles, etc., for election purposes

(1) If it appears to the State Government that in connection with an election held within the State–

(a) Any premises are needed or are likely to be needed for the purpose of being used as a poling station or for the storage of ballot boxes after a poll has been taken, or

(b) Any vehicle, vessel or animal is needed or is likely to be needed for the purpose of transport of ballot boxes to or from any polling station, or transport of members of the police force for maintaining order during in the conduct of such election, or transport of any officer or other person for performance of any duties in connection with such election,

The Government may by order in writing requisition such premises, or such vehicle, vessel or animal, as the case may be, and may make such further orders as may appear to it to be necessary or expedient in connection with the requisitioning:

Provided that no vehicle, vessel of animal which is being lawfully used by a candidate or his agent for any purpose connected with the election of such candidate shall be requisitioned under this subsection until the completion of the poll at Such election.

(2) The requisition shall be effected by an order in writing addressed to the person deemed by the State Government to be the owner or person in possession of the property, and such order shall be served in the prescribed manner on the person to whom it is addressed.

(3) Whenever any property is requisitioned under sub-section (1), the period of such requisition shall not extend beyond the period for which such property is required for any of the purposes mentioned in that sub-section.

(4) In the section–

(a) “Premises” means any land, building, or part of a building and includes a hut, shed or other structure or any part thereof-,

(b) “Vehicle” means any vehicle used or capable of being used for the ‘purpose of road transport, whether propelled by mechanical power of otherwise.

Section 161. Payment of compensation

(1) Whenever in pursuance of section 160 the State Government requisitions any premises, there shall be paid to the persons interested compensation the amount of which shall be determined by taking into consideration the following, namely: -

(i) The rent payable in respect of the premises or if no rent is so payable, the rent payable for similar premises in the locality;

(ii) If in consequence of the requisition of the premises the person interested is compelled to chance his residence or place of business, the reasonable expenses (if any) incidental to such change:

Provided that where any person interested being a aggrieved by the amount of compensation so determined makes all application within the prescribed time to the State Government for refer in a the matter to all arbitrator, the amount of compensation to be paid shall be Such as the arbitrator appointed in this behalf by the State Government may determine:

Provided further that where there is any dispute as to the title to receive the compensation or as to the apportionment of the amount of compensation, the State Government to shall refer it all arbitrators appointed in this behalf by the Government for determination and shall be determined in accordance with the decision of such arbitrator.

Explanation.In this subsection, the expression “person interested” means the person who was in actual possession of the premises requisitioned under section 160 immediately before the requisition, or where no person was in such actual possession, the owner of such premises.

(2) Whenever in Pursuance of section 160 the State Government requisitions any vehicle, vessel or animal, there shall be paid to the owner thereof compensation the amount of which shall be determined by the State Government on the basis of fares or rates prevailing in the locality for the hire Of Such vehicle, vessel or animal:

Provided that where the owner Of Such vehicle, vessel or animal being aggrieved by the amount of compensation so determined makes an application wit in the prescribed time to the State Government for referring the matter to an arbitrator, the amount of compensation to be paid shall be such as the arbitrator appointed in this behalf by the State Government may determine:

Provided further that where immediately before the requisitioning the vehicle or vessel was by virtue of the purchase agreement in the possession of a person other than the owner, the amount determined under this sub-section as the total compensation payable in respect of the requisition shall be apportioned between that person and the owner in such manner as they may agree upon, and in default of agreement, in such manner as all arbitrator appointed by the State Government in this behalf may decide.

Section 162. Power to obtain information

The State Government may with a view to requisition , any property under section 160 or determined the compensation payable under section 161, by order, require any person to furnish to Such authority as relay he specified in the order such information in his possession relating to Such property as may be so specified.

Section 163. Powers of entry into and inspection of premises, etc

(1) Any person authorized in this behalf by the State Government may enter into any premises and inspect such premises and any vehicle, vessel or airline therein for the Purpose of determining) whether, and if so in what manner, all order under section 160 Should be made in relation to Such premises, vehicle, vessel or annual, or with a view to securing,, compliance with any order made under, that section.

(2) In this section the expressions “premises” and “vehicle” have the same meanings as in section 160.

Section 164. Eviction from requisitioned premises

(1) Any person remaining in possession of any requisitioned premises in contravention of any order made under section 160 may be summarily evicted from file premises by any officer empowered by the State Government in this behalf.

(2) Any officer so empowered may, after giving to any woman not appearing in public reasonable warning and facility to withdraw, remove or opera ally lock or bolt, break open any door of any building, or do any other act necessary for effecting such eviction.

Section 165. Release or premises from requisition

(1) When any premises requisitioned under section 160 are to be released from requisitioning the possession thereof shall be delivered to the person from whom possession was taken at the time when the premises were requisitioned, or if there were no such person, to the person declared by the State Government to be the owner of such premises, and such delivery of possession shall he a full discharge of the State Government from all liabilities in respect of such delivery, but shall not prejudice any rights in respect of the premises which any other person may be entitled by due process of law to enforce against the person to whom possession of the premises is do delivered.

(2) Where the person to whom possession of any premises requisitioned under section 160 is to be given under sub-section (1) cannot be found or is not readily ascertainable or has no agent or any other person empowered to accept delivery on his behalf, the State Government shall cause a notice declaring that such premises are released 1roin requisition to be affixed on some conspicuous part of such premises and publish the notice in the Official Gazetted.

(3) When a notice referred to in subsection (2) is published in the Official Gazette, the premises specified in Such notice shall cease to be subject to requisition on and from the date of such publication and be declared to have been delivered to the person entitled to possession thereof, and the State Government shall not be liable for any compensation or other claim in respect of such premises for any period after the said date.

Section 166. Delegation or Functions of the State Government with regard to requisitioning

The State Government may, by notification in the Official Gazette, direct that any powers conferred or any duty imposed on that Government by any of the provisions of sections 160 to 165 shall, under such conditions, if any, as may he specified in the direction, be exercised or discharged by such officer or class of officers, as may be so specified.

Section 167. Penalty for contravention or any order regarding requisitioning

If any person contravenes any order made under section 160 or section 162, lie shall be punishable with imprisonment for a term, which may extend to one year or with fine or with both.

Section 168. Special provisions with respect to Rulers or former Indian States

Rep. by the Rulers of Indian States (Abolition of Privileges) Act, 1972 (.54 of 1972), sec. 4 (w.e.f 9-9-1972).

Section 169. Power to make rules

(1) The Central Government may, after consulting the Election Commission, by notification in the Official Gazette, make rules¹ for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters, namely–

(a) The duties of presiding officers and polling officer at polling stations;

(b) The checking of voters by reference to the electoral roll;

(c) The manner in which votes are to be given both generally and in the case of illiterate voters or voters under physical or other disability;

(d) The manner in which votes are to he given by in presiding officer, polling officer, polling agent or any other person, who being an elector for a constituency is authorised or appointed for duty it polling station at which he is not entitled to vote;

(e) The procedure to be followed in respect of the tender of vote by a person representing himself to be in elector after another person has voted is such elector;

²[(ee) The manner of giving and recording of votes by means of voting machines and the procedure as to voting to be followed at polling stations where such machines ire used;]

(f) The procedure as to voting to be followed at elections held in accordance with the system of proportional representation by means of the single transferable vote;

(g) The scrutiny and counting of votes including cases in which a recount of the votes may be made before the declaration of the result of the election;

²[(gg) The procedure is to counting of votes recorded by means of voting machines;]

(h) The safe custody of ³[ballot boxes, voting machines], ballot papers and other election papers, the period for which such papers shall be preserved and the inspection and production of such papers;

(i) Any other matter required to be prescribed by this Act.

⁴[(3) Every rule made under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or ⁵[in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made], the rule shall thereafter have effect only in such modified form or be of in effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to validity of anything previously done under the rule.]

——————–

1. See, the Conduct of’ Infections Rules, 1961

2. Ins. by Act I of 1999, sec. 16 (w.e.f. 15-3-1089).

3. Subs. by Act I of 1989, sec. 16, for “ballot boxes” (w.e.f. 15-3-1989).

4. Subs. by Act 40 of 1961, sec. 29, for subsection (3) (w.e.f. 20-9-196l), which was ins. by Act 27 of 1956, sec. 82,

5. Subs. by Act 4 of 1986, sec. 2 and Sch. (w.e.f. 15-5-1986).

Section 170. Jurisdiction of civil courts barred

No civil court shall have jurisdiction to question the legality of any action taken or of any decision given by the returning officer or by any other person appointed under this Act in connection with an election.

Section 171. Repeal of Act 39 of 1920

Rep. by the repealing and Amending Act, 1957 (36 of 1957) sec. 2 and Sch. II

Right To Education Act

November 30, 2014

Chapter 1: Prelimnary

No. 35 of 2009

[26th August, 2009]

An Act to provide for free and compulsory education to all children of the age of six to fourteen years.

Be it enactment by Parliament in the Sixtieth Year of the Republic of India as follows:–

Section 1. Short Title Extent and commencement

(1) This Act may be called the Right of Children to Free and Compulsory Education Act, 2009.

(2) It shall extend to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as he Central Government may, by notification in the Official Gazette, appoint.

Section 2. Definitions

In this Act, unless the context otherwise requires,–

(a)”appropriate Government” means—

(i) in relation to a school established, owned or controlled by the Central Government, or the administrator of the Union territory, having no legislature, the Central Government;

(ii) in relation to a school, other than the school referred to in sub-clause (i), established within the territory of —-

(A) a State, the State Government;

(B) a Union territory having legislature, the Government of that Union territory;

(b)”capitation fee” means any kind of donation or contribution or payment other than the fee notified by the school;

(c)”child” means a male or female child of the age of six to fourteen years;

(d)”child belonging to disadvantaged group” means a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification;

(e)”child belonging to weaker section” means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification;

(f)”elementary education” means the education from first class to eighth class:

(g)”guardian”, in relation to a child, means a person having the care and custody of that child and includes a natural guardian or guardian appointed or declared by a court or a statute;

(h)”local authority” means a Municipal Corporation or Municipal Council or Zila Parishad or Nagar Panchyat or Panchyat, by whatever name called, and includes such other authority or body having administrative control over the school or empowered or under any law for the being in force to function as a local authority in any city, town or village:

(i)”National Commission for Protection of Child Rights” means the National Commission for Protection of Child Rights constituted under section 3 of the Commissions for Protection of Child Rights Act, 2005; (4 of 2006)

(j)”notification” menas a notification published in the Official Gazette;

(k)”parent” means either the natural or step or adoptive father or mother of a child;

(l)”Schedule” means any recognised school imparting elementary education and includes—

(i) a school established, owned or controlled by the appropriate Government or a local authority;

(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;

(iii) a scholl belonging to specified category; and

(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority;

(o)”screening procedure” means the method of selection for admission of a child, in preference over another, other than a random method;

(p)”specified category”, in relation to a school, means a school known as Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik School or any other school having a distinct character which may be specified, by notification, by the appropriate Government;

(g)”State Commission for Protection of Child Rights” means the State Commissions for Protection of Child Rights Act. 2005 (4 of 2006)

Chapter II – Right To Free And Compulsory Education

Section 3. Right of child to free and compulsory education

(1) Every child of the age of six to fourteen years shall have a right to free and compulsory education in a neighborhood school till completion of elementary education.

(2) For the purpose of sub-section (1), no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education:

Provided that a child suffering from disability, as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1996 shall have the right to pursure free and compulsory elementary education in accordance with the provisions of Chapter V of the said Act. (1 of 1996)

Section 4. Special provisions for children not admitted to, or who have not completed elementary education

Where a child above six years of age has not been admitted in any school or though admitted, could not complete his or her elementary education, then, he or she shall be admitted in a class appropriate to his or her age;

Provided that where a child is directly admitted in a class appropriated to his or her age, then, he or she shall, in order to be at par with others, have a right to receive special training, in such manner, and within such time-limits, as may be prescribed:

Provided further that a child so admitted to elementary education shall be entitled to free education till completion of elementary education even after fourteen years.

Section 5. Right of transfer to other school

(1) Where in a school, there is no provision for completion of elementary education, a child shall have a right to seek transfer to any other school, excluding the school specified sub-clauses (iii) and (iv) of clause (n) of section 2, for completing his or her elementary education.

(2) Where a child is required to move from one school to another, either within a State or outside, for any reason whatsoever, such child shall have a right to seek transfer to any other school, excluding the school specified in sub-clauses (iii) and (iv) of clause (n) of section 2, for completing his or her elementary education.

(3) For seeking admission in such other school, he Head-teacher or in-charge of the school where such child was last admitted, shall immediately issue the transfer certificate.

Provided that delay in producing transfer certificate shall not be a ground for either delaying or denying admission in such other school:

Provided further that the Head – teacher or in-charge of the school delaying issuance of transfer certificate shall be liable for disciplinary action under the service rules applicable to him or her.

Chapter III –  Duties of Appropriate Government, Local Authority And Parents

Section 6. Duty of appropriate Government and local authority to establish school

For carrying out the provisions of this Act, the appropriate Government and the local authority shall establish, within such area is limits of neighborhood, as may be prescribed, a school, where it is not so established, within a period of three years from the commencement of this Act.

Section 7. Sharing of financial and other responsibilites

(1) The Central Government and the State Governments shall have concurrent responsibility for providing funds for carrying out the provisions of this Act.

(2) The Central Government shall prepare the estimates of capital and recurring expenditure for the implementation of the provisions of the Act.

(3) The Central Government shall provide to the State Government, as grants-in-aid of revenues, such percentage of expenditure referred to in sub-section (2) as it may determine, from time to time, in consultation with the State Government.

(4) The Central Government may make a request to the President to make a reference to the Finance Commission under sub-clause (d) of clause (3) of article 280 to examine the need for additional resources to the provided to any State Government so that the said State Government may provide its share of funds for carrying out the provisions of the Act.

(5) Notwithstanding anything contained in sub-section (4), the State Government shall, taking into consideration the sums provided by the Central Government to State Government under sub-section (3), and its other resources, be responsible to provide funds for implementation of the provisions of the Act,.

(6) The Central Government shall —

(a) develop a framework of national curriculum with the help of academic authority specified under section 29;

(b) develop and enforce standards for training of teachers;

(c) provide technical support and resources to the State Government for promoting innovations, researches, planning and capacity building.

Section 8. Duties of appropriate Government

The appropriate Government shall—

(a) provide free and compulsory elementary education to every child:

Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school.

Explanation – The term “compulsory education” means obligation of the appropriate Government to—

(i) provide free elementary education to every child of the age of six to fourteen years; and

(ii) ensure compulsory admission, attendance and completion of elementary education by every child of the age of six to fourteen years;

(b) ensure availbility of a neighborhood school as specified in section 6;

(c) ensure that the child belonging to weaker section and the child belonging to disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds;

(d) provide infrastructure including school building, teaching staff and learning equipment;

(e) provide special training facility specified in section 4;

(f) ensure and monitor admission, attendance and completion of elementary education by every child;

(g) ensure good quality elementary education conforming to the standards and norms specified in the Schedule;

(h) ensure timely prescribing of curriculum and courses of study for elementary education; and

(i) provide training facility for teachers.

Section 9. Duties of local authority

Every local authority shall—

(a) provide free and compulsory elementary education to every child:

Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school;

(b) ensure availability of a neighborhood school as specified in section 6;

(c) ensure that the child belonging to weaker section and the child belonging to disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds;

(d) maintain records of children up to the age of fourteen years residing within its jurisdiction, in such manner as may be prescribed;

(e) ensure and monitor admission, attendance and completion of elementary education by every child residing within its jurisdiction;

(f) provided infrastructure including school building, teaching staff and learning material;

(g) provide special training facility specified in section 4;

(h) ensure good quality elementary education conforming to the standards and norms specified in the Schedule;

(i) ensure timely prescribing of curriculum and courses of study for elementary education;

(j) provide training facility for teachers;

(k) ensure admission of children of migrant families;

(l) monitor functioning of schools within its jurisdiction; and

(m) decide the academic calendar.

Section 10. Duty of parents and guardian

It shall be the duty of every parent or guardian to admit or cause to be admitted his or her child or ward, as the case may be, to an elementary education in the neighbourhood school.

Section 11. Appropriate Government to provide for pre-school education

With a view to prepare children above the age of three years for elementary education and to provide early childhood care and education for all children until they complete the age of six years, the appropriate Government may make necessary arrangement for providing free pre-school education for such children.

Chapter  IV – Responsibilities Of Schools And Teachers

Section 12. Extent of school’s responsibility for free and compulsory education

(1) For the purposes of this Act, a school,–

(a) specified in sub-clause (i) of clause (n) of section 2 shall provide free and compulsory elementary education to all children admitted therein;

(b) specified in sub-clause (ii) of clause (n) of section 2 shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants to received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent;

(c) specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall admit in class I, to the extent of at least twenty-five per cent, of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion:

Provided further that where a school specified in clause (n) of section 2 imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education.

(2) The school specified in sub-clause (iv) of clause (n) of section 2 providing free and compulsory elementary education as specified in clause (c) of sub – section (i) shall be reimbursed expenditure so incurred by it to the extention of per-child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed:

Provided that such reimbursement shall not exceed pre-child-expenditure incurred by a school specified in sub-clause (i) of clause (n) of section 2:

Provided further that where such school is already under obligation to provide free education to a specified number of children on account of it having received any land, building, equipment or other facilities, either free of cost or at a concessional rate such school shall not be entitled for reimbursement to the extent of such obligation.

(3) Every school shall provide such information as may be required by the appropriate Government or the local authority, as the case may be.

Section 13. No capitation fee and screening procedure for admission

(1) No school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure.

(2) Any school or person, if in contravention of the provisions of sub-section (1),–

(a) receives capitation fee, shall be punishable with fine which may extend to ten times the capitation fee charged;

(b) subjects a child to screening procedure, shall be punishable with fine which may extend to twenty-five thousand rupees for the first contravention and fifty thousand rupees for each subsequent contraventions.

Section 14. Proof of age for admission

(1) For the purposes of administration to elementary education, the age of a child shall be determined on the basis of the birth certificate issued in accordance with the provisions of the Births, Deaths and Marriages Registration Act, 1886 or on the basis of such other document, as may be prescribed.

(2) No child shall be denied admission in a school for lack of age proof.

15. No denial of admission

A child shall be admitted in a school at the commencement of the academic year or within such extended period as may be prescribed:

Provided that no child shall be denied admission if such admission is sought subsequent to the extended period:

Provided further that any child admitted after the extended period shall complete his studies in such manner as may be prescribed by the appropriate Government.

Section 16. Prohibition of holding back and expulsion

No child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education

Section 17. Prohibition of physical punishment and mental harassment to child

(1) No child shall be subjected to physical punishment or mental harassment.

(2) Whoever contravenes the provisions of sub-section (1) shall be liable to disciplinary action under the service rules applicable to such person

Section 18. No School to be established without obtaining certificate of recognition

(1) No school, other than a school established, owned or controlled by the appropriate Government or the local authority, shall, after the commencement of this Act, be established or function, without obtaining a certificate of recognition from such authority, by making an application in such form and manner, as may be prescribed.

(2) The authority prescribed under sub – section (1) shall issue the certificate of recognition in such form, within such period, in such manner, and subject to such conditions, as may be prescribed:

Provided that no such recognition shall be granted to a school unless it fulfils norms and standards specified under section 19.

(3) On the contravention of the conditions of recognition, the prescribed authority shall, by an order in writing, withdraw recognition:

Provided that such order shall contain a direction as to which of the neighborhood school, the children studying in the derecognised school, shall be admitted:

Provided further that no recognition shall be so withdrawn without giving an opportunity of being heard to such school, in such manner, as may be prescribed.

(4) With effect from the date of withdrawal of the recognition under sub-section (3), no such school shall continue to function.

(5) Any person who established or runs a school without obtaining certificate of recognition, or continues to run a school after withdrawal of recognition, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.

Section 19. Norms standards school

(1) No school shall be established, or recognised, under section 18, unless it fulfils the norms and standards specified in the Schedule.

(2) Where a school established before the commencement of this Act does not fulfil the norms and standards specified in the Schedule, it shall take steps to fulfil such norms and standards at its own expenses, within a period of three years from the date of such commencement.

(3) Where a school fails to fulfil the norms and standards within the period specified under sub-section (2), the authority prescribed under sub-section (1) of section 18 shall withdraw recognition granted to such school in the manner specified under sub-section (3) thereof.

(4) With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function.

(5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.

Section 20. Power to amend Schedule

The Central Government may, by notification, amend the Schedule by adding to, or omitting therefrom, any norms and standards.

Section 21. School Management Committee

(1) A schoo, other than a school specified in sub-clause (iv) of clause (n) of section 2, shall consitute a School Management Committee consisting of the elected representatives of the local authority, parents or guardians of children admitted in such school and teachers:

Provided that atleast three – fourth of members of such Committee shall be parents or guardians:

Provided further that proportionate representation shall be given to the parents or guardians of children belonging to disadvantaged group and weaker section:

Provided also that fifty per cent. of Members of such Committee shall be women.

(2) The School Management Committee shall perform the following functions, namely:–

(a) monitor the working of the school;

(b) prepare and recommend school development plan;

(c) monitor such other functions as may be prescribed.

Section 22. School Development Plan

(1) Every School Management Committee, constituted under sub-section (1) of section 21, shall prepare a School Development Plan, in such manner as may be prescribed.

(2) The School Development Plan so prepared under sub-section (1) shall be the basis for the plans and grants to be made by the appropriate Government or local authority, as the case may be.

Section 23. Qualifications for appointment and terms and conditions of service of teachers

(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher.

(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:

Provided that a teacher who, at the commencement of this Act, does not possess minimum qualification as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years.

(3) The salary and allowances payable, to, and the terms and conditions of service of, teachers shall be such as may be prescribed.

Section 24. Duties of teachers and redressal of grievances

(1) A teacher appointed under sub-section (1) of section 23 shall perform the following duties, namely:–

(a) maintain regularity and punctuality in attending school;

(b) conduct and complete the curriculum in accordance with the provisions of sub-section (2) of section 29;

(c) complete entire curriculum within the specified time;

(d) assess the learning ability of each child and accordingly supplement additional instructions, if any, as required;

(e) hold regular meetings with parents and guardians and apprise them about the regularity in attendance, ability to learn, progress made in learning and any other relevant information about the child; and

(f) perform such other duties as may be prescribed.

(2) A teacher committing default in performance of duties specified in sub-section (1) , shall be liable to disciplinary action under the service rules applicable to him or her;

Provided that before – taking such disciplinary action, reasonable, opportunity of being heard shall be afforded to such teacher.

(3) The greivances, if any, of the teacher shall be redressed in such manner as may be prescribed.

Section 25. Pupil-Teacher Ration

(1) Within six months from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that the Pupil-Teacher Ratio, as specified in this Schedule, is maintained in each school.

(2) For the purpose of maintaining the Pupil-Teacher Ration under sub-section (1), no teacher posted in a school shall be made to serve in any other school or office or deployed for any non-educational purpose, other than those specified in section 27.

Section 26. Filling up vacancies of teachers

The appointing authority, in relation to a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or by a local authority, shall ensure that vacancy of teacher in a school under its control shall not exceed ten per cent, of the total sanctioned strength.

Section 27. Prohibition of deployment of teacher for non-educational purposes

No teacher shall be deployed for any non-educational purposes other than the decennial population cencus, disaster relief duties or duties relating to elections to the local authority or the State Legislatures or Parliament, as the case may be.

28. Prohibition of private tution by teacher

No teacher shall engage himself or herself in private tution or private teaching activity.

Chapter V – Curriculum And Completion Of Elementary Education

Section 29. Curriculum and evaluation procedure

(1) The curriculum and the evaluation procedure for elementary education shall be laid down by an academic authority to be specified by the appropriate Government, by notification.

(2) The academic authority, while lying down the curriculum and the evaluation procedure under sub-section (1), shall take into consideration the following, namely:–

(a) conformity with the values enshrined in the Constitution;

(b) all round development of the child;

(c) building up child’s knowledge, potentiality and talent;

(d) development of physical and mental abilities to the fullest extent;

(e) learning through activities, discovery and exploration in a child friendly and child-centered manner;

(f) medium of instructions shall, as far as practicable, be in child’s mother tongue;

(g) making the child free of fear, trauma and anxiety and helping the child to express views freely;

(h) comprehensive and continuous evaluation of child’s understanding of knowledge and his or her ability to apply the same

Section 30. Examination and completion certificate

(1) No child shall be required to pass any Board examination till completion of elementary education.

(2) Every child completing his elementary education shall be awarded a certificate, in such form and in such manner, as may be prescribed.

Chapter VI – Protection of Right of Children

Section 31. Monitoring of child’s right to education

(1) The National Commission for Protection of Child Rights constituted under section 3, or as the case may be, the State Commission for Protection of Child Rights constituted under section 17, of the Commissions for Protection of Child Rights Act, 2005, shall, in addition to the functions assigned to them under that Act, also perform the following functions, namely:–

(a) examine and review the safeguards for rights provided by or under this Act and recommend measures for their effective implementation;

(b) inquire into complaints relating to child’s right to free and compulsory education: and

(c) take necessary steps as provided under sections 15 and 24 of the said Commissions for Protection of Child Rights Act.

(2) The said Commissions shall, while inquiring into any matters relating to child’s right to free and compulsory education under clause (c) of sub-section (1), have the same powers as assigned to them respectively under sections 14 and 24 of the said Commissions for Protection of Child Rights Act.

(3) Where the State Commission for Protection of Child Rights has not been constituted in a State, the appropriate Government may, for the purpose of performing the functions specified in clauses (a) to (c) of sub-section (1), constitute such authority, in such manner and subject to such terms and conditions, as may be prescribed.

Section 32. Redressal of grievances

(1) Notwithstanding anything contained in section 31, any person having any grievance relating to the right of a child under this act may make a written complaint to the local authority having jurisdiction.

(2) After receiving the complaint under sub-section (1), the local authority shall decided the matter within a period of three months after affording a reasonable opportunity of being heard to the parties concerned.

(3) Any person aggrieved by the decision of the local authority may prefer an appeal to the State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be.

(4) The appeal preferred under sub-section (3) shall be decided by State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be, as provided under clause (c) of sub-section (1) of section 31.

Section 33. Constitution of National Advisory Council

(1) The Central Government shall constitute, by notification, a National Advisory Council, consisting of such number of Members, not exceeding fifteen, as the Central Government may deem necessary, to be appointed from amongst persons having knowledge and practical experience in the field of elementary education and child development.

(2) The functions of the National Advisory Council shall be to advice the Central Government on implementation of the provisions of the Act in an effective manner.

(3) The allowances and other terms and conditions of the appointment of Members of the National Advisory Council shall be such as may be prescribed.

Section 34. Constitution of State Advisory Council

(1) The State Government shall constitute, by notification, a State Advisory Council consisting of such number of Members, not exceeding fifteen, as the State Government may deem necessary, to be appointed from amongst persons having knowledge and practical experience in the field of elementary education and child development.

(2) The functions of the State Advisory council shall be to advise the State Government on implementation of the provisions of the Act in an effective manner.

(3) The allowances and other terms and conditions of appointment of Members of the State Advisory Council shall be such as may be prescribed.

Chapter VII – Miscellaneous

Section 35. Power to issue directions

(1) The Central Government may issue such guidelines to the appropriate Government or, as the case may be, the local authority, as it deems fit for the purposes of implementation of the provisions of this Act.

(2) The appropriate Government may issue guidelines and give such directions, as it deems fit, to the local authority or the School Management Committee regarding implementation of the provisions of this Act.

(3) The Local authority may issue guidelines and give such directions, as it deems fit, to the School Management Committee regarding implementation of the provisions of this Act.

Section 36. Previous sanction for presecution

No persecution for offence punishable under sub-section (2) of section 13, sub-section (5) of section 18 and sub-section (5) of section 19 shall be instituted except with the previous sanction of an officer authorised in this behalf, by the appropriate Government, by notification.

Section 37. Protection of action taken in good faith

No suit or other legal proceeding shall lie against the Central Government, the State Government, the National Commission for Protection of Child Rights, the State Commission for Protection of Child Rights, the local authority, the School Management Committee or any person, in respect of anything which is in good faith done or intended to be done, in pursuance of this Act, or any rules or order made there under.

Section 38. Power of appropriate Government to make rules

(1) The appropriate Government may, by notification, make rules, for carrying out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:–

(a) the manner of giving special training and the time-limit thereof, under first proviso to section 4;

(b) the area or limits for establishment of a neighborhood school, under section 6;

(c) the manner of maintenance of records of children up to the age of fourteen years, under clause (d) of section 9;

(d) the manner and extent of reimbursement of expenditure, under sub-section (2) of section 12;

(e) any other document for determining the age of child under sub-section (1) of section 14;

(f) the extended period for admission and the manner of completing study of admitted after the extended period, under section 15;

(g) the authority, the form and manner of making application for certificate of recognition, under sub-section (1) of section 18;

(h) the form, the period, the manner and the conditions for issuing certificate of recognition, under sub-section (2) of section 18;

(i) the manner of giving opportunity of hearing under second proviso to sub-section (3) of section 18;

(j) the other functions to be performed by School Management Committee under clause (d) of sub-section (2) of section 21;

(k) the manner of preparing School Development Plan under sub-section (1) of section 22;

(l) the salary and allowances payable to, and the terms and conditions of service of, teacher, under sub-section (3) of section 23;

(m) the duties to be performed by the teacher under clause (f) of sub-section (1) of section 24;

(n) the manner of redressing grievances of teachers under sub-section (3) of section 24;

(o) the form and manner of awarding certificate for completion of elementary education under sub-section (2) of section 30;

(p) the authority, the manner of its consititution and the terms and conditions therefor, under sub-section (3) of section 31;

(q) tha allowances and other terms and conditions of appointment of Members of the National Advisory Council under sub-section (3) of section 33;

(r) the allowances and other terms and conditions of appointment of Members of the State Advisory Council under sub-section (3) of section 34;

(3) Every rule made under this Act and every notification issued under sections 20 and 23 by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may, be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made, the rule or notification shall thereafter have effect only in such modified form or of no effect, as the case may be; so, however, that any such modification or ammulment shalll be without prejudice to the validity of anything previously done under that rule or notification.

(4) Every rule or notification made by the State Government under this Act shall be laid, as soon as may be after it is made; before the State Legislatures.

The Schedule

(See Sections 19 and 25)

Norms And Standards For A School

______________________________________________________

Sl No.        Item                                  Norms and Standards

______________________________________________________

Special Marriage Act

November 30, 2014

Section 1. Short title, extent and commencement

[Act No. 43 of 1954]¹

[9th October, 1954]

An Act to provide a special form marriage in certain cases, for the registration of such and certain other marriages and for divorce.

Be it enacted by Parliament in the Fifth Year of the Republic of India as follows:-

——————–

1. The Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963 and Pondicherry by Reg. 7 of 1963.

(1) This Act may be called the Special Marriage Act, 1954.

(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to citizens of India domiciled in the territories to which this Act extends who are ¹[in the State’s, of Jammu and Kashmir].

(3) It shall come into force on such ²date, as the Central Government may, by notification in the Official Gazette, appoint.

——————–

1. Subs. For word “outside the said territories” by Act No. 33 of 1969, w.e.f. 31-8-1969.

2. Became enforceable on 1-1-1955, vide S.R.O. 3606, dated 17th December, 1954.

Section 2. Definitions

In this Act, unless the context otherwise requires,-

¹[* * *]

(b) “Degrees of prohibited relationship”-a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship;

Explanation I. -Relationship includes, -

(a) Relationship by half or uterine blood as well as by full blood;

(b) Illegitimate blood relationship as well as legitimate;

(c) Relationship by adoption as well as by blood; and all terms of relationship in this Act shall be construed accordingly.

Explanation II. –”Full blood” and “half blood”-two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives.

Explanation III.-”Uterine blood” two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.

Explanation IV.-In explanations II and III, “ancestor” includes the father and ancestress” the mother;

²[(c) [* * *]

(d) “District” in relation to a Marriage Officer, means the area for which he is appointed as such under sub-section (1) or sub-section (2) of Section 3;

³[(e) “District court” means, in any area for which there is a city civil court, that court, and in any other area, the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government by notification in the Official Gazette as having jurisdiction in respect of the matters dealt with in this Act;]

(f) “Prescribed” means prescribed by rules made under this Act;

⁴[(g) “State Government”, in relation to a Union territory, means the administrator thereof.]

——————–

1. Cl. (a) omitted by Act No. 33 of 1969, w.e.f. 31-8-1969.

2. Cl. (c) omitted by Act No. 33 of 1969, w.e.f. 31-8-1969.

3. Substituted by Act 68 of 1976, w.e.f. 27-5-1976.

4. Substituted by the Adaption of Laws (No.3) Order, 1956.

Section 3. Marriage Officers

(1) For the purposes of this Act, the State Government may, by notification in the Official Gazette, appoint one or more Marriage Officers for the whole or any part of the State.

¹[(2) For the purposes of this Act, in its application to citizens of India domiciled in the territories to which this Act extends who are in the State of Jammu and Kashmir, the Central Government may, by notification in the Official Gazette, specify such officers of the Central Government as it may think fit to be the Marriage Officers for the State or any part thereof.]

——————–

1. Subs. by Act No. 33 of 1969, w.e.f. 31-8-1969.

Chapter II Solemnization of Special Marriages

Section 4. Conditions relating to solemnization of special marriages

Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:

(a) Neither party has a spouse living;

¹[(b) Neither party-

(i) Is incapable of giving a valid consent to it in consequence of unsoundness mind; or

(ii) Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(iii) has been subject to recurrent attacks of insanity ²[* * *]

(c) The male has completed the age of twenty-one years and the female the age of eighteen years;

³[(d) The parties are not within the degrees of prohibited relationship;

Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, not withstanding that they are within the degrees of prohibited relationship; and ]

⁴[(e) Where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.]

⁵[Explanation. -In this section, “customs”, in relation to a person belonging to any tribe, community, group or family, means any rule which the State Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe, community, group or family;

Provided that no such notification shall be issued in relation to the members of any tribe, community, group of family,-unless the State Government is satisfied-

(i) That such rule has been continuously and uniformly observed for a long time among those members;

(ii) That such rule is certain and not unreasonable or opposed to public policy; and

(iii) That such rule, if applicable only to a family. has not been discontinued by the family.]

——————–

1. Subs. by Act No. 68 of 1976, w.e.f. 27-5-1976.

2. The words “or epilepsy” omitted by Act 39 of 1999, w.e.f. 29-12-1999.

3. Subs. by Act No. 32 of 1963, w.e.f. 22-9-1963.

4. Subs. by Act No. 33 of 1969, w.e.f. 31-9-1963.

5. Ins. by Act No. 32 of 1963, w.e.f. 22-9-1963.

Section 5. Notice of intended marriage

When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least on of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.

Section 6. Marriage Notice Book and publication

(1) The marriage Officer shall keep all notices given under Section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and such book shall be open for inspection at al reasonable times, without fee, by any person desirous of inspecting the same.

(2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.

(3) Where either of the parties to an intended marriage is not permanently residing within the local limits of the district of the Marriage Officer to whom the notice has been given under section 5, transmitted to the Marriage Officer of the district within whose limits such party is permanently residing, and that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in his office.

Section 7. Objection to marriage

(1) Any person may, before the expiration of thirty days from the date on which any such notice has been published under sub-section (2) of section 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in section 4.

(2) After the expiration of thirty days from the date on which notice of an intended marriage has been published under sub-section (2) of section 6, the marriage may be solemnized, unless it has been previously objected to under sub-section (1).

(3) The nature of the objection shall be recorded in writing by the Marriage Officer in the Marriage Notice Book, be ready over and explained, if necessary, to the person making the objection and shall be signed by him or on his behalf.

Section 8. Procedure on receipt of objection

(1) If an objection is made under section 7 to an intended marriage, the Marriage Officer shall not solemnize the marriage until he has inquired into the matter of the objection and is satisfied that it ought not to prevent the solemnization of the marriage or the objection is withdrawn by the person making it; but the Marriage Officer shall not take more than thirty days from the date of the objection for the purpose of inquiring into the matter of the objection and arriving at a decision.

(2) If the Marriage Officer upholds the objection and refuses to solemnize the marriage, either party to the intended marriage may, within a period of thirty days from the date of such refusal, prefer an appeal to the district court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district court on such appeal shall be final, and the Marriage Officer shall act in conformity with the decision of the court.

Section 9. Powers of Marriage Officers in respect of inquiries

(1) For the purpose of any inquiry under section 8, the Marriage Officer shall have all the powers vested in a civil court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of witnesses and examining them on oath;

(b) discovery and inspection;

(c) compelling the production of documents;

(d) reception of evidence on affidavits; and

(e) issuing commissions for the examination of witnesses; and any proceeding before the Marriage Officer shall be deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code (Act XLV of 1860).

Explanation. – For the purpose of enforcing the attendance of any person to give evidence, the local limits of the jurisdiction of the Marriage Officer shall be the local limits of his district.

(2) If it appears to the Marriage Officer that the objection made to an intended marriage is not reasonable and has not been made in good faith he may impose on the person objecting costs by way of compensation not exceeding one thousand rupees and award the whole or any part thereof to the parties to the intended marriage, and any order for costs so made may be executed in the same manner as a decree passed by the district court within the local limits of whose jurisdiction the Marriage Officer has his office.

Section 10. Procedure on receipt of objection by Marriage Officer abroad

Where an objection is made under Section 7 to a Marriage Officer ¹[in the State of Jammu and Kashmir in respect of an intended marriage in the State], and the Marriage Officer, after making such inquiry into the matter as he thinks fit, entertains a doubt in respect thereof, he shall not solemnize the marriage but shall transmit the record with such statement respecting the matter as he thinks fit to the Central Government, and the Central Government, after making such inquiry into the matter and after obtaining such advice as it thinks fit, shall give its decision thereon in writing to the Marriage Officer who shall act in conformity with the decision of the Central Government.

——————–

1. Subs. by Act No. 33 of 1969, w.e.f. 31-8-1969.

Section 11. Declaration by parties and witnesses

Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer.

Section 12. Place and form of solemnization

(1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed.

(2) The marriage may be solemnized in any form which the parties may choose to adopt:

Provided that it shall not be complete and binding on the parties, unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,- “I, (A), take thee (B), to be my lawful wife (or husband).

Section 13. Certificate of marriage

(1) When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.

(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.

Section 14. New notice when marriage not solemnized within three months

Whenever a marriage is not solemnized within three calendar months from the date on which notice thereof has been given to the Marriage Officer as required by section 5, or where an appeal has been filed under sub-section (2) of section 8, within three months from the date of the decision of the district court on such appeal or, where the record of a case has been transmitted to the Central Government under section 10, within three months from the date of decision of the Central Government, the notice and all other proceedings arising therefrom shall be deemed to have lapsed, and no Marriage Officer shall solemnize the marriage until a new notice has been given in the manner laid down in this Act.

Chapter III Registration of Marriages celebrated in other forms

Section 15. Registration of marriages celebrated in other forms

Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the ¹Special Marriage Act, 1872, (III of 1872) or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:

(a) A ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;

(b) Neither party has at the time of registration more than one spouse living;

(c) Neither party is an idiot or a lunatic at the time of registration;

(d) The parties have completed the age of twenty-one years at the time of registration;

(e) The parties are not within the degrees of prohibited relationship;

Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and

(f) The parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.

——————–

1. Rep. by this Act.

Section 16. Procedure for registration

Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this Chapter, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objections and after hearing any objection received within the period, shall, if satisfied that all the conditions mentioned is section 15 are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the form specified in the Fifth Schedule, and such certificate shall be signed by the parties to the marriage and by three witnesses.

Section 17. Appeals from orders under section 16

Any person aggrieved by any order of a Marriage Officer refusing to register a marriage under this Chapter may, within thirty days from the date of the order, appeal against that order to the district court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the district court on such appeal shall be final, and the Marriage Officer to whom the application was made shall act in conformity with such decision.

Section 18. Effect of registration of marriage under this Chapter

Subject to the provisions contained in sub-section (2) of section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under the Chapter, the marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (Whose names shall also be entered n the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents:

Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents.

Chapter IV Consequences of Marriage under this Act

Section 19. Effect of marriage on member of undivided family

The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from such family.

Section 20. Rights and disabilities not affected by Act

Subject to the provisions of section 19, any person whose marriage is solemnized under this Act, shall have the same rights and shall be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850 (XXI of 1850) applies.

Section 21. Succession to property of parties married under Act

Not-withstanding any restrictions contained in the Indian Succession Act, 1925 (XXXIX of 1925), with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this section that Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestates) had been omitted therefrom.

Section 21 A. Special provision in certain cases

¹Special provision in certain cases. Where the marriage is solemnized under this Act of any person who professes the Hindu Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, Section 19 and Section 21 shall not apply and so much of Section 20 as creates a disability shall also not apply.]

——————–

1. Ins. by Act No 68 of 1976, w.e.f. 27-5-1976.

Chapter V Restitution of Conjugal rights and judicial separation

Section 22. Restitution of conjugal rights

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

¹[Explanation. -Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]

——————–

1. Ins. by Act No 68 of 1976, w.e.f. 27-5-1976.

Section 23. Judicial separation

(1) A petition for judicial separation may be presented to the district court either by the husband or the wife, -

(a) On any of the grounds specified ¹[in sub-section (1)] ²[and sub-section (IA) of Section 27] on which a petition for divorce might have been presented; or

(b) On the ground of failure to comply with a decree for restitution of conjugal rights;

and the court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, and decree judicial separation accordingly.

(2) Where the court grants a decree for judicial separation, it shall be no longer obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

——————–

1. Subs. by Act No. 29 of 1970, w.e.f. 12-6-1970.

2. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

Chapter VI Nullity of marriage and divorce

Section 24. Void marriages

(1) Any marriage solemnized under this Act shall be null and void ¹[and may, on a petition presented by either party thereto against the other party, be so declared] by a decree of nullity if-

(i) Any of the conditions specified in clauses (a), (b), (c) and (d) of Section 4 has not been fulfilled; or

(ii) The respondent was impotent at the time of the marriage and at the time of the institution of the suit.

(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of Section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of Section 15:

Provided that no such declaration shall be made in any case where an appeal has been preferred under Section 17 and the decision of the district court has become filial.

——————–

1. Substituted for words “and may be so declared” by Act No. 68 of 1876, w.e.f. 27-5-1976.

Section 25. Voidable marriage

Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if -

(i) the marriage has not been consummated owning to the willful refusal of the respondent to consummate the marriage; or

(ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or

(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the India Contract Act, 1872 (IX of 1872):

Provided that, in the case specified in clause (ii), the court shall not grant a decree unless it is satisfied,-

(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(b) that proceedings were instituted within a year from the date of the marriage; and

(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree:

Provided further that in the case specified in clause (iii), the court shall not grant a decree if,-

(a) proceedings have not been instituted within one year after the coercion have ceased or, as the case may be fraud had been discovered; or

(b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.

Section 26. Legitimacy of children of void and voidable marriages

¹Legitimacy of children of void and voidable marriages. (1) Notwithstanding that a marriage is null and void under Section 24, and child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 25, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it has been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 25, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents].

——————–

1. Substituted by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 27. Divorce

²[(1)] Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband, or the wife on the ground that the respondent-

¹[(a) Has, after the solemnization of the marriage. had voluntary sexual intercourse with any person other than his or her spouse-, or

(b) Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(c) If undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code;

³[* * *]

(d) Has since the solemnization of the marriage treated the petitioner with cruelty; or

¹[(e) Has been incurably of unsound mind, or hits been suffering continuously or intermittently from mental disorder of such a kind and to such all extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation. -In this clause, -

(i) The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(ii) The expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or

(f) Has been suffering from venereal disease in a communicable form; or]

(g) Has ⁵[* * *] been suffering from leprosy, the disease not having been contracted from the petitioner; or,

(h) Has not been heard of as being alive for period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; ⁶[* * *]

⁷[Explanation.- In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate expressions shall be construed accordingly.]

⁵[* * * * *]

⁸[* * * * *]

⁷[(lA) A wife may also present a petition for divorce to the district court on the ground, -

(i) That her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii) That in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding Section 488 of the Code of Criminal Procedure, 1898 [5 of 1898]), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards]

⁹[(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground-

(i) That there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or up wards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) That there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties]

——————–

1. Subs. by Act No. 68 of 1976, w.e.f. 27-5-1976.

2. Section 27 renumbered as sub-section (1) by Act 29 of 1970, w.e.f. 12-8-1970.

3. Proviso omitted by Act No. 68 of 1976, w.e.f. 27-5-1976.

4. Certain words omitted by Act No. 68 of 1976, w.e.f. 27-5-1976.

5. Word “or” omitted by Act 29 of 1970, w.e.f. 12-8-1970.

6. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

7. Clause (i) and (i) omitted by Act No. 29 of 1970, w.e.f. 12-8-1970.

8. Ins. by Act No. 29 of 1970, w.e.f. 12-8-1970.

Section 27 A. Alternate relief in divorce proceedings

¹Alternate relief in divorce proceedings. In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the ground mentioned in clause (h) of sub-section (1) of Section 27, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

——————–

1. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 28. Divorce by mutual consent

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be present to the district court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) ¹[On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen months] after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

——————–

1. Subs, by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 29. Restriction on petitions for divorce during first three years after marriage

(1) No petition for divorce shall be presented to the district court ¹[unless at the date of the presentation of the petition one year has passed] since the date of entering the certificate of marriage in the Marriage Certificate Book:

Provided that the district court may, upon application being made to it, allow a petition to be presented ¹[before one year has passed] on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the district court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the district court may, if it pronounces a 2 decree, do so subject to the condition that the decree shall not have effect until after the ²[expiry of one year] from the date of the marriage or may dismiss the petition, without prejudice to any petition, which may be brought after the ³[expiration of the said one year] upon the same, or substantially the same, facts as those proved in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the ⁴[expiration of one year] from the date of the marriage, the district court shall have regard to the interests of any children of the marriage, and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the ²[said one year].

——————–

1. Substituted for word “before three years have passed” by Act 68 of 1976, w.e.f. 27-5-1976.

2. Substituted for word “expiry of three years” by Act 68 of 1976, w.e.f. 27-5-1976.

3. Substituted for word “expiration of the said three years” by Act 68 of 1976, w.e.f. 27-5-1976.

4. Substituted for word “expiration of three years” by Act 68 of 1976, w.e.f. 27-5-1976.

5. Substituted for word “said three years” by Act 68 of 1976, w.e.f. 27-5-1976.

Section 30. Remarriage of divorced persons

Where a marriage has been dissolved by the decree of divorce, and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, ¹[* * *] either party to the marriage may marry again.

——————–

1. Omitted words “and one year has elapsed thereafter but not sooner” by Act 68 of 1976, w.e.f. 27-5-1976.

Chapter VII Jurisdiction and Procedure

Section 31. Court to which petition should be made

¹[(1) Every petition under Chapter V or Chapter VI shall be presented to the district court within the local limits of whose original civil jurisdiction-

(i) The marriage was solemnized; or

(ii) The respondent, at the time of the presentation of the petition resides; or

(iii) The parties to the marriage last resided together; or

²[(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or]

(iv) The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years by those who would naturally have heard to him if he were alive.]

(2) Without prejudice to any jurisdiction exercisable by the court under sub-section (1), the district court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories.

——————–

1. Substituted by Act 68 of 1976, w.e.f. 27-5-1976.

2. Inserted vide Marriage Laws (Amdt.) Act, 2003.

Section 32. Contents and verification of petitions

(1) Every petition under Chapter V or Chapter VI shall state, as distinctly as the nature of the case permits, the facts on which the claim to relief is founded, and shall also state that there is no collusion between the petitioner and the other party to the marriage.

(2) The statements contained in every such petition shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.

Section 33. Proceedings to be in camera and may not be printed or published

¹[Proceedings to be in camera and may not be printed or published. (1) Every proceeding under this Act shall be conducted in (camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.

(2) If any person prints on publishes any matter in contravention of the provisions contained in sub-section (1) he shall be punishable with fine which may extend to one thousand rupees.]

——————–

1. Substituted by Act 68 of 1976, w.e.f. 27-5-1976.

Section 34. Duty of court in passing decrees

(1) In any proceeding under Chapter V or Chapter VI, whether defended or not, if the court is satisfied that, -

(a) Any of the grounds for granting relief exists; and

(b) ¹[Where the petition is founded on the ground specified in clauses (a) of subsection (1) of Section 27, the petitioner has not in any manner been accessory to or connived at or condoned the act of sexual intercourse referred to therein,] or, where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty; and

(c) When divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and

(d) The petition is not presented or prosecuted in collusion with the respondent; and

(e) There has not been any unnecessary or improper delay in instituting the proceedings; and

(f) There is no other legal ground why the relief-should not be granted; then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties;

²[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (c), clause (e), clause (f), clause (g) and clause (h) of sub-section (1) of section 27.]

²[(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceeding for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been effected and the court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]

——————–

1. Subs, by Act 68 of 1976, w.e.f. 27-5-1976.

2. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 35. Relief for respondent in divorce and other proceedings

¹[Relief for respondent in divorce and other proceedings. In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground, if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he, or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]

——————–

1. Subs, by Act 68 of 1976, w.e.f. 27-5-1976.

Section 36. Alimony pendente lite

Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as, having regard to the husband’s income, it may seem to the court to be reasonable.

¹[Provided that the application for the payment of the expenses of the proceeding and such weekly or monthly sum during the proceeding under Ch. V or Ch. VI, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the husband.]

——————–

1. Inserted vide The Marriage Laws (Amdt.) Act, 2001 (Act No. 49 of 2001), dt. 24-9-2001.

Section 37. Permanent alimony and maintenance

(1) Any court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at ail-y, time subsequent to the decree, on application made to it for the purpose, order that the husband shall secure to the wife for her maintenance and support, if necessary, by a charge on the husband’s property, such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as, having regard to her own property, if any, her husband’s property and ability ¹[the conduct of the parties and other circumstances of the case], it may seem to the court to be just.

(2) If the district court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under subsection (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as it ,ay seem to the court to be just.

(3) If the district court is satisfied that the wife is whose favour an order likes been made under this section has re-married or is not leading a chaste life, ²[it may, at the instance of the husband vary, modify or rescind any such order and in such manner as the court may deem just.]

——————–

1. Substituted for words “and the conduct of the parties” by Act No. 68 of 1976, w.e.f. 27-5-1976.

2. Substituted for words “it shall rescind the order” by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 38. Custody of Children

In any proceeding under Chapter V or Chapter VI the district court may, from time to time, pass such ;Interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time to time, all of such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending.

¹[Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Ch. V or Ch. VI, shall, as far as possible be disposed of within sixty days form the date of service of notice on the respomdent.]

——————–

1. Inserted vide The Marriage Laws (Amdt.) Act, 2001 (Act No. 49 of 2001), dt. 24-9-2001.

Section 39. Appeals from decrees and orders

(1) All decrees made by the court in any proceeding under Chapter V or Chapter VI shall, subject to the provisions of subsection (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction and such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act, under Section 37 or Section 38 shall, subject to any provisions of subsection (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of ¹[ninety] days from the date of the decree or order.

——————–

1. Substituted for “thirty” vide the Marriage Laws (Amdt.) Act, 2003.

Section 39 A. Enforcement of decrees and orders

¹[Enforcement of decrees and orders. All decrees and orders made by the court in any proceeding under Chapter V or Chapter VI shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced.]

——————–

1. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 40. Application of Act V of 1908

Subject to the other provisions contained in this Act, and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (Act V of 1908).

Section 40 A. Power to transfer petitions in certain cases

¹[Power to transfer petitions in certain cases. (1) Where-

(a) A petition under this Act has been presented to the district court having party to the marriage praying for a decree for judicial separation jurisdiction by a under Section 23 or for a decree of divorce under Section 27, and

(b) Another petition under this Act has been presented thereafter by the other party to the marriage praying for decree for judicial separation under Section 23, or for decree of divorce under Section 27 on any ground whether in the same district court or in a different district court, in the same State or in a different State, the petition shall be dealt with as specified in sub-section (2).

(2) In a case where sub-section (1) applies,-

(a) If the petitions are presented to the same district court, both the petitions shall be tried and heard together by the district court;

(b) If the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent, under the Code of Civil Procedure, 1908 (5 of 1909) to transfer any suit or proceeding from the district court in which the later petition has been, presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.

——————–

1. Ins. by Act No. 68 of 1976, w.e.f. 27-5-1976.

Section 40 B. Special provision relating to trial and disposal of petition under the Act

(1) The trial of a petition under this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusions, unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(2) Every petition under this Act shall be tried as expeditiously as possible, and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.

(3) Every appeal under this Act shall be heard as expeditiously as possible and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.

Section 40 C. Documentary evidence

Notwithstanding anything contained in any attachment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.

Section 41. Power of High Court to make rules regulating procedure

(1) The High Court shall, by notification in the Official Gazette, make such rules consistent with the provisions contained in this Act and the Code of Civil Procedure, 1908 (Act V of 1908), as it may consider expedient for the purpose of carrying into effect the provisions of Chapter V,VI and VII.

(2) In particular, and without prejudice to the generality of the foregoing provision, such rules shall provide for,-

(a) the imp leading by the petitioner of the adulterer as a co-respondent on a petition for divorce on the ground of adultery, and the circumstances in which the petitioner may be excused from doing so;

(b) the awarding of damages against any such co-respondent;

(c) the intervention in any proceeding under Chapter V or Chapter VI by any person not already a party thereto;

(d) the form and contents of petitions for nullity of marriage or for divorce and the payment of costs incurred by parties to such petitions; and

(e) any other matter for which no provision or no sufficient provision is made in this Act, and for which provision is made in the Indian Divorce Act, 1869 (IV of 1869).

Chapter VIII Miscellaneous

Section 42. Saving

Nothing contained in this Act shall effect the validity of any marriage not solemnized under its provisions; nor shall this Act be deemed directly or indirectly to affect the validity of any mode of contracting marriage.

Section 43. Penalty on married person marrying again under this Act

Save as otherwise provided in Chapter III, every person who, being at the time married, procures a marriage of himself to others to be solemnized under this Act shall be deemed to have committed an offence under section 494 or section 495 of the Indian Penal Code (Act XLV of 1860), as the case may be, and the marriage so solemnized shall be void.

Section 44. Punishment of bigamy

Every person whose marriage is solemnized under this Act and who, during the life time of his or her wife or husband contracts any other marriage shall be subjected to the penalties provided in section 494 and section 495 of the Indian Penal Code (Act XLV of 1860), for the offence of marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be void.

Section 45. Penalty for signing false declaration or certificate

Every person making, signing or attesting any declaration or certificate required by or under this Act containing a statement which is false and which he either knows or believes to be false or does not believe to be true shall be guilty of the offence described in section 199 of the Indian Penal Code (Act XLV of 1860).

Section 46. Penalty for wrongful action of Marriage Officer

Any Marriage Officer who knowingly and willfully solemnizes a marriage under this Act -

(1) without publishing a notice regarding such marriage as required by section 5, or

(2) within thirty days of the publication of the notice of such marriage, or

(3) in contravention of any other provision contained in this Act, shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both.

Section 47. Marriage Certificate Book to be open to inspection

(1) The Marriage Certificate Book kept under this Act shall at all reasonable times be open for inspection and shall be admissible as evidence of the statements therein contained.

(2) Certified extracts from the Marriage Certificate Book shall, on application, be given by the Marriage Officer to the applicant on payment by him of the prescribed fee.

Section 48. Transmission of copies of entries in marriage records

Every Marriage Officer in a State shall send to the Registrar-General of Births, Deaths and Marriages of that State at such intervals and in such form as may be prescribed, a true copy of all entries made by him in the Marriage Certificate Book since the last of such intervals, and, in the case of Marriage Officers outside the territories to which this Act extends, the true copy shall be sent to such authority as the Central Government may specify in this behalf.

Section 49. Correction of errors

(1) Any marriage Officer who discovers any error in the form of substance of any entry in the Marriage Certificate Book may, within one month next after the discovery of such error, in the presence of the persons married or, in case of their death or absence, n the presence of two other credible witnesses, correct the error by entry in the margin without any alternative of the original entry and shall sign the marginal entry and add thereto the date of such correction and the Marriage Officer shall make the like marginal entry in the certificate thereof.

(2) Every correction made under this section shall be attested by the witnesses in whose presence it was made.

(3) Where a copy of any entry has already been sent under section 48 to the Registrar-General or other authority the Marriage Officer shall make and send in like manner a separate certificate of the original erroneous entry and of the marginal correction therein made.

Section 50. Power to make rules

(1) The Central Government, in the case of ¹[* * *] officers of the Central Government, and the State Government, in all other cases, may, by notification in the Official Gazette, makes rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matter’s, namely:

(a) The duties and powers of Marriage Officers and the areas in which they may exercise jurisdiction:

(b) The manner in which a Marriage Officer may hold inquiries under this Act and the procedure therefor;

(c) The form and manner in which any books required by or under this Act shall be maintained;

(d) The fees that may be levied for the performance of any duty imposed upon a Marriage Officer under this Act;

(e) The manner in which public notice shall be given under Section 16;

(f) The form in which, and the intervals within which, copies of entries in the Marriage Certificate Book shall be sent in pursuance of Section 48;

(g) Any other matter which may be or requires to be prescribed.

²[(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making ally modification in the rule or both Houses agree that the rule should not be made, the rules shall thereafter have effect only in such modified form or be of no effect, as the else may be; so, however, that any such modification or annulment shall be without prejudice to the validity or anything previously done under that, rule.

(4) Every rule made by the State Government under this Act shall be laid as soon as it is made, before the State Legislature.]

——————–

1. Omitted words “diplomatic and consular and other” by Act 33 of 1969, w.e.f. 31-8-1969.

2. Inserted by Act No. 20 of 1983, w.e.f. 15-3-1984.

Section 51. Repeals and savings

(1) The Special Marriage Act 1872 (III of 1872), and any law corresponding to the Special Marriage Act, 1872, in force in an Part B State immediately before the commencement of this Act are hereby repealed.

(2) Notwithstanding such repeal,-

(a) all marriages duly solemnized under the Special Marriage Act, 1872 (III of 1872), or any such corresponding law shall be deemed to have been solemnized under this Act;

(b) all suits and proceedings in causes and matters matrimonial which, when this Act comes into operation, are pending in any court, shall be dealt with the decided by such court, so far as may be, as if they had been originally instituted therein under this Act.

(3) The provisions of sub-section (2) shall be without prejudice to the provisions contained in section 6 of the General Clauses Act.1897 (X of 1897), which shall also apply to the repeal of the corresponding law as if such corresponding law had been an enactment.

THE FIRST SCHEDULE

See section 2 (b)

“Degrees of Prohibited relationship”

PART I

1. Mother

2. Father’s widow (step-mother)

3. Mother’s mother

4. Mother’s father’s widow (step grand-mother)

5. Mother’s mother’s mother

6. Mother’s mother’s father’s widow (step great grand-mother)

7. Mother’s father’s mother

8. Mother’s father’s father’s widow (step great grand-mother)

9. Father’s mother

10. Father’s father’s widow (step grand-mother)

11. Father’s mother’s mother

12. Father’s mother’s father’s widow (step great grand-mother)

13. Father’s father’s mother

14. Father’s father’s father’s widow (step great grand mother)

15. Daughter

16. Son’s widow

17. Daughter’s daughter

18. Daughter’s son’s widow

19. Son’s daughter

20. Son’s son’s widow

21. Daughter’s daughter’s daughter

22. Daughter’s daughter’s son’s widow

23. Daughter’s son’s daughter

24. Daughter’s son’s son’s widow

25. Son’s daughter’s daughter

26. Son’s daughter’s son’s widow

27. Son’s son’s daughter

28. Son’s son’s son’s widow

29. Sister

30. Sister’sdaughter

31. Brother’s daughter

32. Mother’s sister

33. Father’s sister

34. Father’s brother’s daughter

35. Father’s sister’s daughter

36. Mother’s sister’s daughter

37. Mother’s brother’s daughter

Explanation.—For the Purposes of this Part, the expression “widow” includes a divorced wife.

PART II

1. Father

2. Mother’s husband (step-father)

3. Father’s fathter

4. Father’s mother’s husband (step grand-father)

5. Father’s father’s father

6. Father’s father’s mother’s husband (step great grand-father)

7. Father’s mother’s father

8. Father’s mother’s mother’s husband (Step great grand-father)

9. Mother’s father

10. Mother’s mother’s husband (step grand-father)

11. Mother’s father’s father

12. Mother’s father’s mother’s husband (step great grand-father)

13. Mother’s mother’s father

14. Mother’s mother’s mother’s husband (step great grand-father)

15. Son

16. Daughter’s husband

17. Son’s son

18. Son’s daughter’s husband

19. Daughter’s son

20. Daughter’s daughter’s husband

21. Son’s son’s son

22. Son’s son’s daughter’s husband

23. Son’s daughter’s son

24. Son’s daughter’s daughter’s husband

25. Daughter’s son’s son

26. Daughter’s son’s daughter’s husband

27. Daughter’s daughter’s son

28. Daughter’s daughter’s daughter’s husband

29. Brother

30. Brother’s son

31. Sister’s son

32. Mother’s brother

33. Father’s brother

34. Father’s brother’s son

35. Father’s sister’s son.

36. Mother’s sister’s son

37. Mother’s brother’s son

Explanation.—For the purpose of this Part, the expression “husband” includes a divorced husband.

THE SECOND SCHEDULE

(See section 5)

NOTICE OF INTENDED MARRIAGE

To

Marriage Officer for the ………………….District.

We hereby give you notice that a marriage under Special Marriage Act, 1954, is intended to be solemnized between us within three calendar months from the date hereof.

Witness our hands this…………………….. day of ………………… 19……..

(Sd.) A.B

(Sd.) C.D.

THE THIRD SCHEDULE

(See section 11)

DECLARATION TO BE MADE BY THE BRIDEGROOM

I, A.B., hereby declare as follows:-

1.I am at the present time unmarried (or a widower or a divorcee, as the case may be).

2.I have completed…………………years of age.

3.I am not related to C.D. (the bride) within the degrees of prohibited relationship.

4.I am aware that, if any statement in this declaration is false, and if in making such statement, I either know or believe it to be false or do not believe it to true.I am liable to imprisonment and also to fine.

(S.d), A.B. (the Bridegroom)

DECLARATION TO BE MADE BY HE BRIDE

I, C.D., hereby declare as follows;-

1.I am at the present time unmarried (or a widow or a divorcee, as the case may be).

2.I have completed……………………………………..years of age.

3.I am not related to A.B. (the Bridegroom) within the degrees of prohibited relationship.

4.I am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to be true, I am liable to imprisonment and also to fine.

(S.d) C.D. (the Bride)

Signed in our presence by the above-named A.B. and C.D. so far as we are aware there is no lawful impediment to the marriage.

Countersigned E.F., Marriage Officer.,

Dated the……………………..day of………………….19……………….

THE FOURTH SCHEDULE

(See Section 13)

CERTIFICATE OF MARRIAGE

I, E.F.hereby certify that on the day of 19 A.B.and C.D.* { * Herein give particulars of the parties} before me and that each of them, in my presence and in the presence of three witnesses who have signed hereunder, made the declarations of required by section 11 and that a marriage under this Act was the solemnized between them in my presence

(Sd.) E.F.,

Marriage officer ,for

(Sd.) A.B.,

Bridegroom

(Sd.) C.D.,

Bride

THE FIFTH SCHEDULE

(See section 16)

CERTIFICATE OF MARRIAGE CELEBRATED IN OTHER FORMS

I. E.F., hereby certify that A.B. and C.D. * appeared before me this……………….day of…….19……….and that each of them, in my presence and in the presence of three witnesses who have signed hereunder, made the declared that a ceremony of marriage has been performed between them and [hat they have been living together as husband and wife since the time of their marriage, and that in accordance with their desire to have their marriage registered under this Act, the said ‘ marriage has, this day……………….day of………….19 …………….been registered under this Act, having effect as from.

(Sd.) E.F.,

Marriage officer ,for

(Sd.) A.B.,

Bridegroom

(Sd.) C.D.,

Bride

Dated the………………………day of……….19…………………………..

* Herein give particulars of the parties.

Public Liability Insurance Act

November 30, 2014

Preamble

[Act No. 6 of 1991]

[22nd January 1991]

An Act to provide for public liability insurance for the purpose of providing immediate relief to persons affected by accident occurring while handling any hazardous substance and for matters connected therewith or incidental thereto.

Be it enacted by Parliament in the Forty-first Year of the Republic of India as follows: -

Section 1. Short title and commencement

(1) This Act may be called the Public Liability Insurance Act, 1991.

(2) It shall come into force on such date as the Central Government may by notification, appoint.

Section 2. Definitions

In this Act, unless the context otherwise requires,-

¹[(a) “Accident” means an accident involving a fortuitous or sudden or unintended occurrence while handling any hazardous substance resulting in Continuous or intermittent or repeated exposure to death of, or injury to, any person or damaged to any property but does not include an accident by reason only of war or radio-activity;]

(b) “Collector” means the Collector having jurisdiction over the area in which the accident occurs;

(c) “Handling”, in relation to any hazardous substance, means the manufacture, processing, treatment, package, storage, transportation by vehicle, use collection, destruction, conversion, offering for sale, transfer or the like of such hazardous substance;

(d) “Hazardous substance” means any substance or preparation which is defined as hazardous substance under the Environment (Protection) Act, 1986 (29 of 1986), and exceeding such quantity as may be specified, by notification, by the Central Government;

(e) “Insurance” means insurance against liability under sub-section (1) of Section 3;

(f) “Notification” means a notification published in the Official Gazette;

²(g) “Owner means a person who owns, or has control over handling, any hazardous substance at the time of accident and includes. -

(i) In the case of a firm, any of its partners; (ii) In the case of an association, any of its members; and

(iii) In the case of a company, any of its directors, managers, secretaries or other officers who is directly in charge of, and is responsible to, the company for the conduct of the business of the company;]

(h) “Prescribed” means prescribed by rules made under this Act; ³[(ha) “Relief Fund” means the Environmental Relief Fund established under Section 7A;]

(i) “Rules” means rules made under this Act;

(j) “Vehicle” means any mode of surface transport other than railways.

——————–

1. Subs. by Act No.11 of 1992.

2. Subs. by Act No. 11 of 1992.

3. Ins. by Act No. 11 of 1992.

Section 3. Liability to give relief in certain cases on principle of no fault

(1) Where death or injury to any person (other than a workman) or damage to any property has resulted from an accident, the owner shall be liable to give such relief as is specified in the Schedule for such death, injury or damage.

(2) In any claim for relief under sub-section (1) (hereinafter referred in to this Act as claim for relief), the claimant shall not be required to plead and establish that the death, injury or damage in respect of which the claim has been made was due to any wrongful act, neglect or default of any person. Explanation. -For the purpose of this section, -

(i) “Workman” has the meaning assigned to it in the Workmen’s Compensation Act, 1923 (8 of 1923);

(ii) “Injury” includes permanent total or permanent partial disability or sickness resulting out of an accident.

Section 4. Duty of owner to take out insurance policies

(1) Every owner shall take out, before he starts handling any hazardous substance, one or more insurance policies providing for contracts of insurance whereby he is insured against liability to give relief under sub-section (1) of Section 3: Provided that any owner handling any hazardous substance immediately before the commencement of this Act shall take out such insurance policy or policies as soon as may be and in any case within a period of one year from such commencement. (2) Every owner shall get the insurance policy, referred to in subsection (1), renewed from time to time before the expiry of the period of validity thereof so that the insurance policies may remain in force throughout the period during which such handling is continued.

¹(2A) No insurance policy taken out or renewed by an owner shall be for an amount less than the amount of the paid-up capital of the undertaking handling any hazardous substance and owned or controlled by that owner, and more than the amount, not exceeding fifty crore rupees, as may be prescribed. Explanation-For the purposes of this sub-section, “paid-up capital” means, in the case of an owner not being a company, the market value of all assets and stocks of the undertaking on the date of contract of insurance.

(2B) The liability of the insurer under one insurance policy shall not exceed the amount specified in the terms of the contract of insurance in that insurance policy.

(2C) Every owner shall also, together with the amount of premium, pay to the insurer, for being credited to the Relief Fund established under Section 7A, such further amount, not exceeding the sum equivalent to the amount of premium, as may be prescribed. (2D) The insurer shall remit to the authority specified in sub-section (3) of Section 7A the amount received from the owner under subsection (2C) for being credited to the Relief Fund in such manner and within such period as may be prescribed and where the insurer fails to so remit that amount, it shall be recoverable from the insurer as arrears of land revenue or of public demand.]

(3) The Central Government may, by notification, exempt from the operation of sub-section (1) any owner, namely:-

(a) The Central Government; (b) Any State Government; (c) Any corporation owned or controlled by the Central Government or a State Government; or (d) Any local authority:

Provided that no such order shall be made in relation to such owner unless a fund has been established and is maintained by that owner in accordance with the rules made in this behalf for meeting any liability under sub-section (1) of Section 3.

——————–

1. Ins. by Act No. 11 of 1992.

Section 5. Verification and publication of accident by Collector

Whenever it comes to the notice of the Collector that an accident has occurred at any place within his jurisdiction, he shall verify the occurrence of such accident and cause publicity to be given in such manner as he deems fit for inviting applications under sub-section (1) of Section 6.

Section 6. Application for claim for relief

(1) An application for claim for relief may be made.-

(a) By the person who has sustained the injury;

(b) By the owner of the property to which the damage has been caused;

(c) Where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) By any agent duly authorised by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for relief, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application.

(2) Every application under sub-section (1) shall be made to the Collector and shall be in such form, contain such particulars and shall be accompanied by such documents as may be prescribed

(3) No application for relief shall be entertained unless it is made within five years of the occurrence of the accident.

Section 7. Award of relief

(1) On receipt of an ‘application under sub-section (1) of Section 6, the Collector shall, after giving notice of the application to the owner and after giving the parties an opportunity of being heard, hold an inquiry into the claim or, each of the claims, and may make an award determining the amount of relief which appears to him to be just and specifying the person or persons to whom such amount of relief shall be paid.

(2) The Collector shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.

(3) When an award is made under this section.-

(a) The insurer, who is required to pay any amount in terms of such award and to the extent specified in sub-section (2B) of Section 4, shall, within a period of thirty days of the date of announcement of the award, deposit that amount in such manner as the Collector may direct; (b) The Collector shall arrange to pay front the Relief Fund, in terms of such award and in accordance with the scheme under Section 7A, to the person or persons referred to in subsection (1) such amount as may be specified in that scheme;

(c) The owner shall, within such period, deposit such amount in such manner as the Collector may direct.]

(4) In holding any inquiry under sub-section (1), the Collector may, subject to any rules made in this behalf, follow such summary procedure as he thinks fit.

(5) The Collector shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Collector shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) Where the insurer or the owner against whom the award is made under sub-section (1) fails to deposit the amount of such award within the period specified under subsection (3), such amount shall be recoverable form the owner, or as the case may be, the insurer as arrears of land revenue or of public demand.

(7) A claim for relief in respect of death of, or injury to, any person or damage to any property shall be disposed of as expeditiously as possible and every endeavor shall be made to dispose of such claim within three months of the receipt of the application for relief under sub-section (1) of Section 6.

²[(8) Where an owner is likely to remove or dispose of his property with the object of evading payment by him of any amount of the award, the Collector may, in accordance with the provisions of rules I to 4 of Order XXXIX of the First Schedule to the Code of Civil Procedure, 1908 (5 of 19O8), grant a temporary injunction to restrain such act.]

——————–

1. Subs. By Act No. 11 of 1992.

2. Ins. by Act No. 11 of 1992.

Section 7 A. Establishment of Environmental Relief Fund

¹[Establishment of Environmental Relief Fund. (1) The Central Govern- ment may, by notification, establish a fund to be known as the Environmental Relief Fund.

(2) The Relief Fund shall be utilised for paying, in accordance with the provisions of this Act and the scheme made under sub-section (3), relief under the award made by the Collector under Section 7 (3) The Central Government may, by notification, make a scheme specifying the authority in which the Relief Fund shall vest, the manner in which the Relief Fund shall be administered, the form and the manner in which money shall be drawn from the Relief Fund and for all other matters connected with or incidental to the administration of the Relief Fund and the payment of relief therefrom.]

——————–

1. Ins. by Act No. 11 of 1992.

Section 8. Provisions as to other right to claim compensation for death, etc

(1) The right to claim relief under sub-section (1) of Section 3 in respect of death of, or injury to, any person or damage to any property shall be in additional to any other right to claim compensation in respect thereof under any other law for the time being in force.

(2) Notwithstanding anything contained in subsection (1), where in respect of death of, or injury to, any person or damage to any property, the owner, liable to give claim for relief, is also liable to pay compensation under any other law, the amount of such compensation shall be reduced by the amount of relief paid under this Act.

Section 9. Power to call for information

Any person authorised by the Central Government may, for the purposes of ascertaining whether any requirements of this Act or of any rule or of any direction given under this Act have been complied with, require any owner to submit to that person such information as that person may reasonably think necessary.

Section 10. Power of entry and inspection

Any person, authorised by the Central Government in this behalf, shall have a right to enter, at all reasonable times with such assistance as he considers necessary, any place, premises or vehicle, where hazardous substance is handled for the purpose of determining whether any provisions of this Act or of any rule or of any direction given under this Act is being or has been complied with and such owner is bound to tender all assistance to such person.

Section 11. Power of search and seizure

(1) If a person, authorised by the Central Government in this behalf, has reason to believe that handling of any hazardous substance is taking peace in any place, premises or vehicle, in contravention of sub-section (1) of Section 4, he may enter into and search such place, premises or vehicle of such handling of hazardous substance.

(2) Where, as a result of any search under sub-section (1) any handling of hazardous substance has been found in relation to which contravention of sub-section (I) of Section 4 has taken place, he may seize such hazardous substance and other things, which, in his opinion, will be useful for, or relevant to, any proceeding under this Act:

Provided that where it is not practicable to seize any such substance or thing, he may serve on the owner an order that the owner shall not remove, part with or otherwise deal with, the hazardous substance mid such other things except with the previous permission of that person.

(3) He may, if he has reason to believe that it is expedient to do to prevent an accident dispose of the hazardous substance seized under sub-section (2) immediately in such manner as he may deem fit.

(4) All expenses incurred by him in the disposal of hazardous substances under sub-section (3) shall be recoverable form the owner as arrears of land revenue or of public demand.

Section 12. Power to give direction

Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may in exercise of its powers and performance of its functions under this Act, issue such directions in writing as it may deem fit for the purposes of this Act to any owner or ally person, officer, authority or agency and such owner, person, officer, authority or agency shall be bound to comply with such directions.

Explanation. – For the removal of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct-

(a) Prohibition or regulation of the handling of any hazardous substance; or

(b) Stoppage or regulation of the supply of electricity, water or any other service.

Section 13. Power to make application to Courts for restraining owner from handling hazardous substances

(1) If the Central Government or any person authorised by that Government in this behalf has reason to believe that any owner has been handling any hazardous substance in contravention of any of the provisions of this Act, that Government or, as the case may be, that person may make an application to a Court not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of first class for restraining such owner from such handling.

(2) On receipt of the application under sub-section (1), the Court may make such order as it deems fit.

(3) Where under sub-section (2), the Court makes an order restraining any owner from handling hazardous substance, it may, in that order. -

(a) Direct such owner to desist from such handling;

(b) Authorise the Central Government or, as the case may be, the person referred to in sub-section (1), if the direction under clause (a) is not complied with by the owner to whom such direction is issued, to implement the direction in such manner as may be specified by the Court.

(4) All expenses incurred by the Central Government, or as the case may be, the person in implementing the directions of Court under clause (b) of subsection (3), shall be recoverable form the owner as arrears of land revenue or of public demand.

Section 14. Penalty for contravention of sub-section (1) or sub-section (2) of Section 4 or failure to comply with directions under Section 12

(1) Whoever contravenes any of the provisions of ¹[sub-section (1) or subsection (2) or subsection (2A) or sub-section (2C)] of Section 4 or fails to comply with any direction issued under Section12, he shall be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years, or with fine which shall not be less than one lakh rupees, or with both.

(2) Whoever, having already been convicted or ail offence under subsection (1), is convicted for the second offence or any offence subsequent to the second offence, he shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine which shall not be less than one lakh rupees.

(3) Nothing contained in Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), or in the Probation of Offenders Act, 1958 (20 of 1958), shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age.

——————–

1. Subs. by Act No. 11of 1992 for “sub-section (1) or (2).

Section 15. Penalty for failure to comply with direction under Section 9 or order under Section 11 or obstructing any person in discharge of his functions under Section 10 or 11

If any owner fails to comply with direction issued under Section 9 or fails to comply with order issued under sub-section (2) of Section11, or obstructs any person in discharge of his functions under Section 10 or sub-section (1) or subsection (3) of Section11, he shall be punishable with imprisonment which may extend to three months, or with fine which may extend to ten thousand rupees, or with both.

Section 16. Offences by companies

(1) Where any offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to; the company for the conduct of’ the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this subsection shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in subsection (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the Consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.-For the purposes of this section,-

(a) “Company” means any body corporate and includes a firm or other association of individuals;

(b) “Director”, in relation ‘to a firm, means a partner in the firm.

Section 17. Offences by Government Departments

Where an offence under this Act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this section shall render such Head of the Department liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

Section 18. Cognizance of offences

No court shall take cognizance of any offence under this Act except on a complaint made by-

(a) The Central Government or any authority or officer authorised in this behalf by that Government; or

(b) Any person who has given notice of not less than sixty days in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid.

Section 19. Power to delegate

The Central Government may, by notification, delegate, subject to such conditions and limitations as may he specified in the notification, such of its powers and functions under this Act (except the power under Section 23) as it may deem necessary or expedient to any person (including any officer, authority or other agency.)

Section 20. Protection of action taken in good faith

No suit, prosecution or other legal proceeding shall lie against the Government or the person, officer, authority or other agency in respect of anything which is done or intended to be done in good faith in pursuance of this Act or the rules made or orders or directions issued thereunder.

Section 21. Advisory Committee

(1) The Central Government may, from time to time, constitute an Advisory Committee on the matters relating to the insurance policy under this Act.

(2) The Advisory Committee shall consist of-

(a) Three officers representing the Central Government;

(b) Two persons representing the insurers;

(c) Two persons representing the owners; and

(d) Two persons from amongst the experts of insurance or hazardous substances to be appointed by the Central Government.

Section 22. Effect of other laws

The provisions of this Act and any rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law.

Section 23. Power to make rules

(1) The Central Government may, by notification, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters namely:-

¹[(a) The maximum amount for which an insurance policy may be taken out by an owner under sub-section (2A) of Section 4;

(aa) The amount required to be paid by every owner for being credited, to the Relief Fund under sub-section (2C) of Section 4;

(ab) The manner in which and the period within which the amount received from the owner is required to be remitted by the insurer under sub-section (2D) of Section 4;]

²[(ac) Establishment and maintenance of fund under sub-section (3) of Section 4;]

(b) The form of application and the particulars to be given therein and the documents to accompany such application under sub-section (2) of Section 6;

(c) The procedure for holding an inquiry under subsection (4) of Section 7;

(d) The purposes for which the Collector shall have powers of a Civil Court under sub-section (5) of Section 7;

(e) The manner in which notice of the offence and of the intention to make a complaint to the Central Government shall be given under clause (b) of Section 18;

(f) Any other matter which is required to be, or may be, prescribed.

(3) Every ³[rule or scheme] made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the ³ [rule or scheme] or both Houses agree that the ³[rule or scheme] should not be made, the ³[rule or scheme] shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any Such modification or annulment shall be without prejudice to the validity of anything previously done that rule.

———————

1. Ins. by Act No. 11of 1992.

2. Original Cl. (a) re-lettered as clause (ac) by Act No. 11of 1992.

3. Subs. by Act No. 11of 1992, for “rule”.

Schedule

THE SCHEDULE

[See Section 3 (1)]

(i) Reimbursement of medical expenses incurred up to a maximum of Rs. 12,500 in each case.

(ii) For fatal accidents the relief will be Rs. 25,000 per person in addition to reimbursement of medical expenses, if any, incurred on the victim up to a maximum of Rs.12,5000.

(iii) For permanent total or permanent partial disability or other injury or sickness, the relief will be (a) reimbursement of medical expenses incurred, if any, up to a maximum of Rs. 12,500 in each case and (b) cash relief on the basis of percentage of disablement as certified by an authorised physician. The relief for total permanent disability will be Rs.25,000.

(iv) For loss of wages due to temporary partial disability which reduces the earning capacity of the victim, there will be a fixed monthly relief not exceeding Rs.1,000 per month up to a maximum of 3 months: provided the victim has been hospitalized for a period exceeding 3 days and is above 16 years of age.

(v) Up to Rs. 6,000 depending on the actual damage, for any damage to private property.

The Prevention of Food Adulteration Act

November 30, 2014

Section 1. Short title, extent and commencement

(1) This Act may be called the Prevention of Food Adulteration Act, 1954.

(2) It extends to the whole of India ¹[* * *]

(3) It shall come into force on such date² as the Central Government may, by notification in the official Gazette, appoint.

——————–

1. The words “except the State of Jammu and Kashmir” omitted by the Act 41 of 197 1. Sec. 2 (w.e.f. 26tb January, 1972).

2. lst June, 1955; see notification No. S.R.O. 1085, dated 9th May 1955, Gazette of India, Pt. 11 Sec. 3, P. 874. The Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, Sec. 2 and Sch.1, to Pondicherry by Reg, 7 of 1963, Sec. 3 and Sch. 1, to Goa, Daman and Diu by Reg. 11 of 1963, Sec, 3 and Schedule and to Kohima and Mokokchung district in Nagaland by Act 24 of 1972, Sec. 2 (w.e. f. 1st April. 1973).

Section 2. Definitions

In this Act unless the context otherwise requires, –

¹[(i) “adulterant” means any material which is or could be employed for the purpose of adulteration;]

² [(i-a)] “adulterated”—an article of food shall be deemed to be adulterated-

(a) If the article sold by a vendor is not of the nature, substance or quality, demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality, which it purports or is, represented to be;

(b) If the article contains any other substance which affect, or if the article is so processed as to affect injuriously the nature, substance or quality thereof;

(c) If any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature substance or quality thereof;

(d) If any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof.

(e) If the article has been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;

(f) If the article consists wholly or in part of any filthy, putrid, ³[* * *], rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption;

(g) If the article is obtained from a diseased animal;

(h) If the article contains any poisonous or other ingredient which renders it injurious to health:

(i) If the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its (contents injurious to health;

⁴[(j) If any colouring matter, other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;]

(k) If the article contains any prohibited preservative or permitted preservative in excess of’ the prescribed limits;

⁵[(l) If’ the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability but which renders it injurious to health;]

(m) If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:

Provided that, where the quality or purity of the article, being a primary food has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.

Explanation. – Where two or more articles of primary food are mixed together and the resultant article of food-

(a) Is stored, sold or distributed under a name which denotes the ingredients thereof; and

(b) Is not injurious to health,

Then, such resultant article shall not be deemed to be adulterated within the meaning of this clause;

(ii) “Central Food Laboratory” means any laboratory or institute established or specified under Sec. 4;

(iii) “Committee” means the Central Committee for Food Standards constituted under Sec. 3;

(iv) “Director of the Central Food Laboratory” means the person appointed by the Central Government by notification in the Official Gazette as the Director of the Central Food Laboratory and includes any person appointed by the Central Government in like manner to perform all or any of the functions of the Director under this Act:

⁶[Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be appointed to be a Director under this clause;]

⁷[(v) “Food” means any article used as food or drink for human consumption other than drugs and water and includes,

(a) Any article, which ordinarily enters into, or is used in the composition or preparation of, human food,

(b) Any flavouring matter or condiments, and

(c) Any other article which the Central Government may, having regard to its use, nature, substance or quality declare, bv notification in the official Gazette, as food for the purposes of this Act;]

⁷[(vi) “Food (Health) Authority” means the Director of Medical and Health Services or the Chief Officer in-charge of health administration in a State, by whatever designation he is known, and includes any officer empowered by the Central Government or the State Government, by notification in the Official Gazette, to exercise the powers and perform the duties of the Food (Health) Authority under this Act with respect to such local area as may be specified in the notification;]

(vii) “Local area” means any area, whether urban or rural, declared by ⁸[the Central Government or the State Government] by notification the Official Gazette, to be a local area for the purposes of this Act;

(viii) “Local authority” means in the case of:

(1) A local area which is-

(a) A municipality, the municipal board or municipal corporation;

(b) A cantonment, the cantonment authority;

(c) A notified area, the notified committee;

(2) Any other area, such authority as may be prescribed by ⁹[the Central Government or the State Government] under this Act;

¹⁰[(viii-a) “Local (Health) Authority”, in relation to a local area, means the officer appointed bv the Central Government or the State Government by notification in the Official Gazette, to be in-charge of’ health administration in such area with such designation as may be specified therein;

(Viii-b) “Manufacture” includes any process incidental or ancillary to the manufacture of an article of food;]

(ix) “Misbranded”-an article of food shall be deemed to be, misbranded-

(a) If it is an imitation of, is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character;

(b) If it is falsely stated to be the product of any place or country

(c) If’ it is sold by a name which belongs to another article of food;

(d) If’ it is so coloured, flavored or coated, powered or polished that the fact that the article damaged is concealed or if the article is made to appear better or of greater value than it really is;

(e) If false claims are made for it upon the label or otherwise;

(f) If, when sold in packages which have been sealed or prepared by or at the instance of the manufacturer or producer and which bear his name and address, the contents of each package are not conspicuously and correctly stated on the outside there of within the limits of variability prescribed under this Act:

(g) If the package containing it, or the label on the package bears any statement, design of device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular, or if the package is otherwise deceptive with respect to its contents;

(h) If the package containing it or the label on the package bears the name of a fictitious individual or company as the manufacturer or producer of the article;

(i) If it purports to be, or is represented as being, for special dietarty uses, unless its label bears such information as may be prescribed concerning its vitamin, mineral, or other dietary properties in order sufficiently to inform its purchaser as to its value for such uses:

(j) If it contains any artificial flavouring, artificial colouring or chemical preservative, without a declaratory label stating that fact, or in contravention of the requirements of this Act or rules made thereunder;

(k) If it is not labelled in accordance with the requirements of this Act or rules made thereunder:

(x) “Package” means a box, bottle, gasket, tin, barrel, case, receptacle, sack, bag, wrapper or other thing in which an article of food is placed or packed;

(xi) “Premises” include any shop, stall or place where any article of food is sold or manufactured or stored for sale:

(xii) “Prescribed” means prescribed by rules made under this Act;

¹¹[xii-a) “Primary food” means any article of food, being a produce of agriculture or horticulture in its natural form;]

(xiii) “Sale” with its grammatical and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article:

(xiv) “Sample” means a sample of any article of food taken under the provisions of this Act or any rules made thereunder:

(xv) The words “unwholesome” and “noxious” when used in relation to an article of food mean respectively that the article is harmful to health or repugnant to human use.

STATE AMENDMENT

Maharashtra. – In Sec. 2 of the Prevention of’ Food Adulteration Act. 1954 (37of] 1954) to Cl. (VI) the following proviso shall be added

“Provided that the Commissioner of Food and Drugs Administration Maharashtra State, appointed as such by the State Government shall on the commencement of the Prevention of Food Adulteration Maharashtra (Amendment) Act, 1969 (.XIII of 1970), be the Food (Health) Authority in the State of Maharashtra.” ¹²

In Cl. (viii). After sub-clause (2), the following proviso shall be added, namely:

“Provided that ‘local authority’ in the case of a local area in the State of Maharashtra, means such authority or officer of the State Government as the State Government may, by notification in the Official Gazette, appoint for the local area specified in the notification.”

——————–

1. Ins. by Act 34 of 1976, Sec. 2 (w.e.f. Ist. April, 1976).

2. Clause (f) renumbered as Cl. (i-a) by Sec. 2 ibid.

3. The word “disgusting” omitted by Sec. 2 ibid.

4. Subs. by Sec. 2 ibid, for the sub-clause (f) (w.e.f. Ist. April, 1976).

5. Subs. by ibid, for the sub-clause (i) (w.e.f. Ist. April, 1976).

6. Ins. by Act 34 of l976, Sec.2 (w.e.f. Ist April, 1976)

7. Subs. by ibid.

8. Subs. by Act 49 of 1964. Sec. 2 for “the State Government” (w.e.f. Ist. March, 1965).

9. Ins. by Act 34 of 1976 Sec. 2 (w.e.f. Ist. April, 1976).

10. Subs. by Act 49 of 1964. Sec. 2 for “the State Government” (w.e.f. Ist. March 1965.

11. Ins. by Act 34 of 1976. Sec. 2 (w.e.f. Ist. April, 1976).

12. Vide the Maharashtra Act, 1970 (XIII of 1970), published in the Maharashtra Government Gazette. Extraordinary, Pt. IV. No. 16 dated 12the. March, 1970).

Section 3. The Central Committee for Food Standards

(1) The Central Government shall, as soon as may be after the commencement of this Act, constitute a Committee called the Central Committee for Food Standards to advise the Central Government and the State Governments on matters arising out of the administration of this Act and to carry out the other functions assigned to it under this Act.

(2) The Committee shall consist of the following members, namely:

(a) The Director-General, Health Services, ex offlcio, who shall be the Chairman:

¹[(b) The Director of’ the Central Food Laboratory or, in a case where more than one Central Food Laboratory is established, the Directors of such Laboratories, ex officio;]

(c) Two experts nominated by the Central Government;

²[(d) One representative each of the Departments of Food and Agriculture in the Central Ministry of Food and Agriculture and one representative each of the Central Ministries of Commerce, Defence, Industry and Supply and Railways, nominated by the Central Government;]

(e) One representative each nominated by the Government of each ³[* * *] State;

(f) Two representatives nominated by the Central Government, to represent the, ⁴[Union territories];

⁴[(g) One representative each, nominated by the Central Government, to represent the agricultural, commercial and industrial interests;

(gg) Five representatives nominated by the Central Government to represent the consumer’s interests, one of whom shall be from the hotel industry;]

(h) One representative of the medical profession nominated by the Indian Council of Medical Research;

⁵[(i) One representative nominated by the Indian Standards Institution referred to in Cl. (e) of Sec. 2 of the Indian Standards Institution (Certification Marks) Act, 1952 (36 of 1952)].

(3) The members of the Committee referred to in Cls. (c), (d), (e), ⁶[ ⁷[(q), (gg),] (h), and (i)] of sub- section (2) shall, unless their seats become vacant earlier by resignation, death or otherwise, be entitled to hold office for three years and shall be eligible for re-nomination.

(4) The functions of the Committee may be exercised notwithstanding any vacancy therein.

(5) The Committee may appoint such and so many sub-committees as it deems fit and may appoint to them persons who are not members of the Committee to exercise such powers and perform such duties as may, subject to such conditions, if any, as the Committee may impose, be delegated to them by the Committee.

(6) The Committee, may, subject to the previous approval of the Central Government, make byelaws for the purpose of regulating its own procedure and the transaction of its business.

——————–

1. Subs. by Act 34 of- 1976. Sec.3 (w.e.f. Ist. April, 1976).

2. Subs. by Act 49 of- 1964. Sec. 3 (w.e.f. Ist. March. 1965).

3. The words and letters “Part A State and Part B” omitted by the Adaptation of Laws (No.3) Order. 1956.

4. Subs. by ibid, for “Part C States”.

5. Ins. by Act 49 of 1964. Sec. 3 (w.e. f. Ist March. 1965).

6. Subs. by Act 34 of 1976, Sec. 3, for Cl. (g) (w.e.f. Ist April, 1976).

7. Subs. by Act 49 of 1964 Sec. 3 for “(g) and (h)” (w.e.f. Ist March. 1965).

Section 3 A. Appointment of Secretary and other staff

¹[Appointment of Secretary and other staff. (1) The Central Government shall appoint a Secretary to the Committee who shall, under the control and direction of the Committee, exercise such powers and perform such duties as may be prescribed or as may be delegated to him by the Committee.

(2) The Central Government shall provide the Committee with such clerical and other staff as that Government considers necessary.]

——————–

1. Ins. by Act 34 of 1976, Sec. 4 (w.e.f. 1st April, 1976).

Section 4. Central Food Laboratory

¹[(1) The Central Government shall, by notification in the Official Gazette, establish one or more Central Food Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or any rules made under this Act:

Provided that the Central Government may, by notification in the Official Gazette, also specify any laboratory or institute as a Central Food Laboratory for the purposes of this Act.]

(2) The Central Government may, after consultation with the Committee, make rules prescribing-

²[(a) The functions of Central Food Laboratory and the local area or areas within which such functions may be carried out;]

(b) The procedure for the submission to the said Laboratory of samples of articles of food for analysis or tests, the forms of the Laboratory’s reports thereon and. the fees payable in respect of such reports;

(c) Such other matters as may be necessary or expedient to enable the said Laboratory to carry out its functions.

STATE AMENDMENT

West Bengal. -To sub-section (1) of Sec. 4. The following proviso shall be added, namely:

“Provided that the State Government may with the prior approval of the Central Government, direct that the functions of the Central Food Laboratory and the Director may be carried out in West Bengal by such authority and such officer respectively, as may be specified the State Government by notification in the Official Gazette and any reference in this Act to the Central Food Laboratory or the Director shall then be construed to mean such authority or officer, as the case may be”, ³

——————–

1. Subs. by Sec. 5. Ibid. For sub-section (1) (w.e.f. I st April 1976).

2. Subs by Act 34 of 1976. Sec. 5, for, Cl. (a).

3. Vide West Bengal Act. 42 of 1973. Published in the Calcutta Gazette, Pt. III. No. 264. dated 29th April, 1974 (w.e.f. 29th April, 1974).

Section 5. Prohibition of import of certain articles of food

No person shall import, into India—

(i) Any adulterated food:

(ii) Any misbranded food:

(iii) Any article of food for the import of’ which a licence is prescribed, except in accordance with the conditions of the licence: and

(iv) Any article of food in contravention of any other provision of this Act or of any rule made thereunder.

Section 6. Application of law relating to sea customs and powers of Customs Officers

(1) The law for the time being in force relating to sea customs and to goods, the import of which is prohibited by See. 18 of the Sea Customs Act, 1878 (8 of 1878)¹ shall, subject to the provisions of Sec. 16 of this Act, apply, in respect of articles of food, the import of which is prohibited under Sec. 5 of this Act, and officers of Customs and officers empowered under that Act to perform the duties imposed thereby on a ²[Commissioner of Customs] and other officers of Customs shall have the same powers in respect of such articles of food as they have for the time being in respect of such goods as aforesaid.

(2) Without prejudice to the provisions of sub-section (1) the ³[Commissioner of Customs], or any officer of the Government authorised by the Central Government in this behalf, may detain any imported package which he suspects to contain any article of food the import of’ which is prohibited under Sec. 5 of this Act, and shall forthwith report such detention to the Director of the Central Food Laboratory and, if required by him, forward the package or send samples of any suspected articles of food found therein to the said Laboratory.

——————–

1. The said Act has been repealed by the Customs Act, 1962 {52 of 1962}, Sec. 160 and Schedule.

2. Subs. by Act 22 of 1995. Sec. 87.

3. The words “or” omitted by Act 34 of 1976, Sec. 6 {w.e.f. 1st April, 1976).

Section 7. Prohibitions of manufacture, sale, etc. of certain articles of food

No person shall himself or by any person on his behalf’ manufacture for sale, or store, sell or distribute-

(i) Any adulterated food:

(ii) Any misbranded food.

(iii) Any article of food for the sale of which a licence is prescribed, except in accordance with the conditions or the licence;

(iv) Any article of food the sale of which is for the time being prohibited by the Food (Health) Authority ¹[in the interest of public health;] ²[* * *]

(v) Any article of food in contravention of any other provision of’ this Act or of any rule made thereunder, ³[or]

¹[(vi) Any adulterant.

Explanation–For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of’ food referred to in Cl. (iii) of- Cl. (iu) it he stores such food for the manufacture there from of any article of food for sale.]

——————–

1. Subs. by Act 49 of 1964. Sec. 4 for certain words {w.e.f. 1st March 1965).

2. The words “or” omitted by Act 34 of 1976, Sec. 6 {w.e.f. 1st April, 1976).

3. Subs. by Act 49 of 1964.Sec. 5, for Secs. 8 and 9 (w.e. f. Ist March, 1965).

Section 8. Public Analysts

¹[Public Analysts. The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be public analysts for such local area as may be assigned to them by the Central Government or the State Government as the case may be

Provided that no person who has any financial interest in the manufacture import or sale of any article of food shall be appointed to be a Public Analyst under this section:

¹[Provided further that different public Analysts may be appointed for different articles of food].

——————–

1. Subs. by Act 49 of 1964.Sec. 5, for Secs. 8 and 9 (w.e. f. Ist March, 1965).

Section 9. Food Inspectors

(1) The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, leaving the prescribed qualifications to be Food Inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be:

Provided that no person who has any financial interest in the manufacture import or sale of any article of food shall be appointed to be a Food Inspector under this section.

(2) Every Food Inspector shall be deemed to be a public servant within the meaning of Sec. 21 of the Indian Penal Code (45 of 1860), and shall be officially subordinate to such authority as the Government appointing him, may specify in this behalf.

Section 10. Powers of Food Inspectors

(1) A Food Inspector shall have power-

(a) To take samples of any article of food from-

(i) Any person selling such article

(ii) Any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee:

(iii) A consignee after delivery of any such article to him and

(b) To send such sample for analysis to the Public Analyst for the local area within which such sample has been taken;

²[(c) With the previous approval of the Local (Health) Authority having jurisdiction in the local area, concerned, or with the previous approval of the Food (Health) Authority, to prohibit the sale of- any article of food in the interest of public health.]

³[Explanation-For the purposes of sub-clause (iii) of’ Cl. (a), consignee” does not include a person who purchases or receives any article of food for his own consumption.]

¹[(2) Any Food Inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis:

Provided that no sample of any article of food, being primary food, shall be taken under this sub-section if ‘it is intended for sale as such food].

(3) Where any sample is taken under Cl. (a) of sub-section (1) or sub-section (2), its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken.

(4) If any article intended for food appears to any Food Inspector to be adulterated or misbranded, he may seize and carry away or keep in the safe custody of the vendor such article in order that it may be dealt with as hereinafter provided; 2[and he shall, in either case, take a sample of’ such article and submit the same for analysis to a public analyst):

⁴[Provided that where the Food Inspector keeps such article in the safe custody of the vendor he may require the vendor to execute a bond for a sum of money equal to the value of such article with one or more securities as the Food Inspector deems fit and the vendor shall execute the bond accordingly.]

²[(4-A) Where any article of food seized under sub-section (4) is of a perishable nature and the local (Health) Authority is satisfied that such article of food is so deteriorated that it is unfit for human consumption, the said Authority may, after giving notice in writing to the vendor, cause the same to the destroyed.]

(5) The power conferred bv this section includes power to break open any package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale

⁵[Provided that the power to break open the package or door shall be exercised only after the owner or any other person in charge of the package or, as the ease may be, in Occupation of premises, if he is present therein, refuse,, to open the package or door on being called upon to do so, and in either case after recording the reasons for doing so :]

Provided further that the Food Inspector shall, in exercising the powers of entry upon, arid inspection of any place under this section, follow, as far as may be the provisions of the ⁶[Code of Criminal Procedure, 1973 (2 of 1974)], relating to the search or inspection of a place by a police officer executing a search-warrant issued under that Code.

(6) ⁷[Any adulterant found in the possession of a manufacturer or distributor of, or dealer in any article of food or in any of the premises occupied by him as such] and for the possession of which he is unable to account to the satisfaction of the Food Inspector and any books of account or other documents found in his possession or control and which would be useful for, or relevant to any investigation of proceeding under this Act, may be seized by the Food Inspector and a sample of such adulterant submitted for analysis to a public analyst :

⁸[Provided that no such books of account or other documents shall be seized by the Food Inspector except with the previous approval of the authority to which he is officially subordinated (7) Where the Food Inspector takes any action under Cl. (a) of subsection (1), sub-section (2), sub-section (4) or sub-section (6), he shall ⁹[call one or more persons to be present at the time when such action is taken and take his or their signatures].

¹⁰[(7-A) Where any books of account or other documents are seized under subsection (6), the Food Inspector shall within a period not exceeding thirty days from the date of seizure, return the same to the person from whom they were seized after copies thereof or extracts therefrom as certified by that person in such manner as may be prescribed have been taken:

Provided that where such person refuses to so certify, and a prosecution has been instituted against him under this Act, such books of account or other documents shall be returned to him only after copies thereof or extracts therefrom as certified by the Court have been taken.

(7-B) When any adulterant is seized under sub-section (6), the burden of proving that such adulterant is not meant for purposes of adulteration shall be on the person from whose possession such adulterant was seized.]

(8) Any Food Inspector i-nay exercise the powers of a police officer ¹¹[under Sec. 42 of the Code of Criminal Procedure, 1973 (2 of 1974)] for the purpose of ascertaining the true name and residence of the person from whom a sample is taken or an article of food is seized.

(9) Any Food Inspector exercising powers under this Act or under the rules made thereunder who-

(a) Vexatiously and without any reasonable grounds of suspicion seizes any article of food ¹¹[or adulterant]: or

(b) Commits any other act, to the injury of any person without having reason to believe that such act is necessary for the execution of his duty; Shall be guilty of an offence under this Act and shall be punishable for such offence ¹¹[with fine which shall not be less than five hundred rupees but which may extend to one thousand rupees].

——————–

1. Vinod Kumar v. State of Punjab, 1983 Cr. L.J.177 at p. 178 (P. & H.) I see also Hariram v. State of M.P., 1992 Cr.L.J.2135 at p. 3138 (M.P.) 1993 (1) E.F.R 160 at p. 168 (M.P); State of U.P. v Hanif. 1992 Cr.L.J. 1429 at {. 1431 (S.C.).

2. Subs. by Act 34 of 1976, Sec. 8 (w.e.f. I st April, 1976)

3. Ins. by Act 34 of 1976, Sec. 8 (w.e.f. I st April, 1976).

4. Ins. by Act 49 of 1964, Sec. 6 (w.e.f. Ist March. 1965).

5. Subs. by Act 34 of 1976. Sec. 8, for the first proviso (w.e.f. Ist April 1976).

6. Subs by ibid. for “the code of Criminal Procedure. 1898” (w.e.f. Ist April 1976).

7. Subs. by 34 of 1976. Sec. 8, for certain words (w.e.f. Ist April, 1976).

8. Subs. by ibid, for the former proviso (w.e.f. 1st April, 1976).

9. Subs. by Act of 1964, Sec. 6. For certain words (w.e.f. 1st March, 1965)

10. Ins. by Act 34 of 1976, Sec. 8 (w.e.f. 1st April, 1976).

11. Sadhram v. State of M.P.1995 (1) E.F.R. 638 at p. 639 (M.P.).

Section 11. Procedure to be followed by Food Inspectors

(1) When a Food Inspector takes a sample of food for analysis, he shall-

(a) Give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any whose name, address and other particulars have been disclosed Sec. 14-A:

(b) Except in special cases provided by rules under this Act, divide the sample then and there into three part and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as maybe prescribed:

Provided that where such person refuses to sign or put his thumb impression the Food Inspector shall call upon one or more witnesses and take his or their signature or thumb impressions, as the case may be, in lieu of the signature or thumb impression of such person;

(C) (i) Send one of the parts for analysis to the public analyst under Intimation to the Local (Health) Authority: and

(ii) Send the remaining two parts to the Local (Health) Authority for the purposes of sub-section (2) of this section of sub-Sections (2-A) and (2-F,) of Sec.13.

(2) Where the part of the sample sent to the public analyst under sub- clause (i) of Cl. (c) of’ sub-section (1) is lost or damaged, the Local (Health) Authority shall, on a requisition made to it by the public analyst or the Food Inspector despatch one of the parts of the sample sent to it under sub- clause (ii) of the said C1. (C) To the public analyst for analysis.]

(3) When a sample of any article of food ¹[or adulterant] is taken under sub- section (1) or sub-section (2) of Sec. 10. ²[the Food Inspector shall, by the immediately succeeding working day, send a sample of the article of food or adulterant or both, as the may be,] in accordance with the rules prescrilbed for shambling to the public analyst for the local area concerned.

³[(4) An article of food seized under- sub-section (4) of See, 10,’Unless destroyed under sub-section (4-A) of that section, and any adulterant seized under sub-sections (6) of’ the section, shall be produced before a Magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the public analyst].

Provided ⁴[* * *] that if an application is made to the Magistrate in this behalf by the person from whom any article of food has been seized, the Magistrate shall , by order in writing direct the Food Inspector to produce such article before him within such time as may be specified in

⁵[(5) If it appears to the Magistrate on taking such evidence as he may deem necessary-

(a) That the article of food produced before him under sub- section (4) is adulterated or misbranded he may order it-

(i) To be forfeited to’ the Central Government, the State Government or the local authority, as the case may be , or

(ii) To be destroyed at the cost of the owner or the person from whom it was seized so as to prevent its being used as human food; or

(iii) To be so disposed of’ as to prevent its being again exposed for sale or used for food under its deceptive name; or

(iv) To be returned to the owner, on his executing a bond with or without sureties, for being sold under its appropriate name or, where the Magistrate is satisfied that the article of food is capable of being made to conform to prescribed standards for human consumption after reprocessing, for being sold after reprocessing under the supervision of such officer as may be specified in the order;

(b) That the adulterant seized under sub-section (6) of Sec. 10 and produced before him is apparently of a kind which may be employed for purposes of adulteration and for the possession of which the manufacturer, distributor or dealer, as the case may be, is unable to account satisfactorily, he may order it to be forfeited to the Central Government, the State Government or the local authority, as the case may be.]

(6) ⁶[If it appears Io the Magistrate that- any such-

(a) Article of food is not adulterated: or

(b) Adulterant which is purported to be an adulterant is not an adulterant,

The person from whose possession the article of food or adulterant was taken] shall be entitled to have it restored to him and it shall be in the discretion of the Magistrate to award such person from such fund as the State Government may direct in this behalf, such compensation not exceeding the actual loss which he has sustained as the Magistrate may think proper.

STATE AMENDMENT

Maharashtra. – In Sec.11 of the principal Act in sub-section (5), in Cl. (a) for the words “local authority”. the words “State Government” shall be substituted. ⁷

——————–

1. Ins. by Act 34 of 1976, Sec.9 (w.e.f. Ist April 1976).

2. Subs. by ibid., (w.e.f.) Ist April, 1976) .

3. Subs. by ibid., Sec. 9 (w.e.f. Ist April. 1976), for sub –section (4)and first proviso.

4. The word “further’’ omitted by ibid., Act 34 of 1976. Sec 9 (w.e.f. Ist April , 1976).

5. Subs. by ibid., for the sub- section (5).

6. Subs. by Act 34 of 1976. Sec. 9. for certain words.

7. Vide Maharashtra Act, 1975 (L of 1975) ‘ published in the Maharashtra Government Gazette. Pt. IV, dated 16th’October. 1975 (‘W.e.f. 11th April, 1977).

Section 12. Purchaser may have food analysed

Nothing contained in this Act shall be held to prevent a purchaser of any article of food other than a Food Inspector ¹[or a recognised consumer association, whether the purchaser is a member of that association or not,] from having such article analysed by the public analyst on payment of such fees as may be prescribed and from receiving from the public analyst a report of’ his analysis:

Provided that ²[such purchaser or recognised consumer association shall inform the vendor at the time of purchase of his or its intention] to have such article so analysed provided further that the provisions of sub-sections (1), (2) and (3) of Sec. 11 shall, as far as may be, apply to a ³[purchaser of article of food or recognised consumer association who or which intends] to have such articles so analysed, as they apply to a Food Inspector who takes sample of food for analysis:

Provided also that if the report of the public analyst shows that the article of food is adulterated, the ⁴[purchaser or recognised consumer association shall be entitled to get refund of the fees paid by him or it] under this section.

⁵[Explanation. -For the purposes of this section and Sec. 20 recognised consumer association” means a voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or under any other law for the time being in force].

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1. Ins. by Act 70 of 1986, Sec,. 2 (w.e.f. I st May, 11)87).

2. Subs. by Act 70 of 1986. Sec. 2, for words “such purchaser shall inform the vendor at the time of purchase of his intention.”

3. Subs. by Sec. 2, ibid. For the words purchaser of article. Of food who intends”.

4. Subs. by Sec. 2, ibid. for the words “purchaser shall be entitled to get refund of the fees paid by him”.

5. Ins. by Sec. 2. Ibid.

Section 13. Report of public analyst

¹[(1) The public analyst shall deliver, in such from as may be prescribed. a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.

(2) On receipt of the report of the result of the analysis under subsection (1) to the effect that the article of food is adulterated the Local (Health) Authority shall, after the institution of prosecution against persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Sec. 14-A forward, in Such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of ‘receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

²(2-A) When an application is made to the Court under sub-section (2), the Court shall require the Local (Health) Authority to forward the parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the Court within a period of five days from the date o receipt of such requisition.

(2-B) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2-A), the Court shall first ascertain that the mark and sea] or fastening as provided in Cl. (b) of sub-section (1) of Sec. 11 are intact and the signature or thumb impression, as the ease may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.

(2-C) Where two parts of ‘the sample have been sent to the Court and only one part of- the sample has been sent by the Court to the Director of the Central Food Laboratory under subsection (2-B), the Court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the Court:

Provided that where the part of the sample sent by the Court to Director of the Central Food Laboratory is lost or damaged, the Court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the Court and on receipt thereof the Court shall proceed in the manner provided in sub-section (2-B).

(2-D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the Court shall not continue with the proceedings pending before it in relation to the prosecution.

(2-E) It, after considering the report, if any, of the Food Inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of sub-sections(2) to (2-D)) shall, so far as may be, apply.]

(3) The certificate issued by the Director of the Central Food Laboratory under sub-section (2-B) shall supersede the report given by the public analyst under subsection (1).

(4) Where a certificate obtained from the Director of the Central Food Laboratory ²[under sub- section (2-B)] is produced in any proceeding under this Act or under Sees. 272 to 276 of the Indian Penal Code (45 of 1860), it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis.

(5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sees. 272 to 276 of the Indian Penal Code:

³[Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory [not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub- section (I -A) of Sec. 161 shall be final and conclusive evidence of the facts stated therein.]

⁴[Explanation-In this section, and in Cl. (9 of sub-section (1) of Sec. 16, “Director of the Central Food Laboratory” shall include the officer I or the time being in charge of any Food Laboratory (by whatever designation he is known) recognised by the Central Government for the purposes of this section.

——————–

1. Subs. by Act 34 61’1 976. Sec. I 0. for sub-section (1) and (2) (w.e.f. I st April 1976).

2. Subs. by Act 34 of 1976. Sec.10 for under sub-section(2)” (w.e.f. I st April 1976).

3. Subs. by Act 34 of 1976. Sec. 10 for proviso (w .e . f. I st April 1976).

4. Ins. Ibid. (W.e.f. Ist April. 1976).

Section 14. Manufacturers, distributors, and dealers to give warranty

¹[Manufacturers, distributors, and dealers to give warranty. No ²[manufacturer or distributor of, or dealer in] any article of food shall sell such article to any vendor unless lie also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor :

³[Provided that a bill, cash memorandum or invoice in respect of the sale of’ any article of food given by a manufacturer or distributor of, or dealer in such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section]

Explanation-In this section, in sub-section (2) of Sec. 19 and in Sec. 20-A, the expression “distributor” shall include a commission agent.

——————–

1. Subs. by Act 49 of 1964. Sec. 14 (w.e.f. Ist March 1965).

2. Subs. by Act 34 of 1976, Sec, 7 for Sec. (w.e.f. Ist April, 1976).

3. Ins, by ibid. For the proviso (w.e.f. . I st April 1976).

Section 14 A. Vendor to disclose the name, etc. of the person from whom the article of food was purchased

Every vendor of an article of food shall, if so required, disclose to the Food Inspector the name, address and other particular of the persons from whom he purchased the article of food.

Section 15. Notification of food poisoning

¹[The Central Government or the State Government] may, by notification in the Official Gazette, require medical practitioners carrying on their profession in any local area specified in the, notification to report all occurrences of food poisoning coming within their cognizance to such officer as may be specified in the notification.

——————–

1. Municipal Corporation of Delhi v. Ram Chand. (1985) I-F A.C 79 at P. 84 (Delhi).

Section 16. Penalties

¹[(1) Subject to the provisions of subsection (I -A) it any person, -

(a) Whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food—

(i) Which is adulterated within the meaning of sub-clause (m) Of Cl. (i-a) of Sec. 2 or misbranded within the meaning of Cl. (ix) Of that section or the sale of’ which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;

(ii) Other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder ; or

(b) Whether by himself or bv any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any adulterant which is not injurious to health; or

(c) Prevents a Food Inspector from taking a sample as authorised by this Act : or

(d) Prevents a Food Inspector from exercising any other power conferred on him by or under this Act : or

(e) Being a manufacturer of an article of food, has in his possession, or in any of- the premises occupied by him, any adulterant which is not injurious to health; or

(f) Uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory or by a public analyst or any extent thereof for the purpose of ‘advertising any article of food; or

(g) Whether by himself or by any other person on his behalf, gives to the vendor, a false warranty in writing in respect of any article of food sold by him, he shall, in addition to the penalty to which he may be liable under the provisions of Sec. 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees’:

Provided that-

(i) If the offence is under sub-clause (i) of Cl. (a) and is with respect to an article of food, being primary food which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of Cl. (ix) of Sec. 2or

(ii) If the offence is under sub-section (ii) of Cl. (a), but not being an offence with respect to the contravention of any rule made under Cl. (a) or Cl. (g) of sub-section (I-A) of See. 23 or under Cl. (b) of sub-section (2) of See 24,

The Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees:

Provided further that if offence is under sub-clause (ii) of Cl. (a) and is with respect to the contravention of any rule made under Cl. (a) or Cl. (g) of sub-section (I -A) of Sec. 23 or under Cl. (b) of sub-section (2) of Sec. 24, the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees.]

²[(I-A) If ‘any person whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes, -

(i) Any article of food which is adulterated within the meaning of any of sub- clauses (e) to (1) (I-) both inclusive) of Cl. (i-a) of Sec. 2, or

(ii) Any adulterant which is injurious in addition to the penalty to which he may be liable under the provisions of’ Sec.6, be punishable with imprisonment for a term which shall not be less than one year but which may extend to six years and with fine which shall not be less than two thousand rupees :

Provided that if such article of food or adulterant when consumed by any person is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Sec. 320 of the Indian Penal Code (45 of 1860), he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with line which shall not be less than five thousand rupees.]

³[(i-AA) If any person in whose safe, custody any article of food has been kept under sub-section (4) of Sec. 10, tampers or in any manner interferes with such article, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which shall not less than one thousand rupees.]

⁴[(l -B) If any Person in whose safe, custody any article of food has been kept under sub- section (4) of ‘Sec. IO sells or distributes such article, which is found by the Magistrate before whom it is produced to be adulterated within the meaning of sub-clause (h) of Cl. (i-a) of Sec. 2 and which, when consumed by any person, is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Sec. 320 of the Indian Penal Code (45 of 1860), then, notwithstanding anything contained in sub-section (I -AA), he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees.]

(I-C) If any person contravenes the provisions of Sec. 14 or Sec. 14-A, he shall be punishable with imprisonment for a term, which may extend to six months and with fine, which shall not be less than five hundred rupees.

(I -D) If any person convicted of an offence under this Act commits a like offence afterwards, then, without prejudice to the provisions of’ sub-section (2), the Court, before which the second or subsequent conviction takes place, may order the cancellation of the licence, if any, granted to him under this Act and thereupon such licence shall, notwithstanding anything contained in this Act or in the rules made thereunder, stand cancelled.

(2) If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the Court before which the second or subsequent conviction takes place to cause the offender’s name and place of residence, the offence and the penalty imposed to be published at the offender’s expense in such newspapers or in such other manner as the Court may direct. The expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner- as a fine.

STATE AMENDMENT

West Bengal. -In Se. 16. -

(a) In sub-section (1),,for the words “a term which shall riot be less their? Six months but which may extend to six year. And with fine which shall not be less than one thousand rupees.” The world “ life and shall also be liable to fine” shall be substituted:

(b) In the proviso to sub-section (1) for the worlds “ the Court may for any adequate and special reasons to be mentioned in the judgment. Impose a sentence of imprisonment for a term of less than six months and fine of less than one thousand rupees”. The following words shall be substituted. namely:

“If the Court thinks that for any adequate and special reasons to be mentioned in the judgment a lesser sentence would serve the end of justice. The judgment the Court may impose a sentence which is less than a sentence of imprisonment for life.”

In subsection (I -B), _for the words “a term of six year and with fine which shall not be less than one thousand rupee.” the words “life and shall also be liable to fine” shall be substituted. ⁵

——————–

1. Subs. Act 34 of 1976, Sec. 12 (w.e.f. Ist April 1976),

2. Ins. by Act 34 of 1976. Sec. 12 (w.e.f.Ist April 1976).

3. Sub-section (1-A) renumbered (as sub- section I-AA) by Sec. 12 of the Act 34 of 1976 (w.e.f. 1st April. 1976 ).

4. Subs. by ibid. For sub-section (1-B) (w.e.f.1 st April. 1976).

5. Vide the West Bengal Act (XLIIof-1973) published in the Calcutta Gazette. Pt.11I No. 267. dated 29th April 1974.

Section 16 A. Power of Court to try cases summarily

¹[Power of Court to try cases summarily. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under subsection (1) of Sec. 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Secs. 262 to 265 (both inclusive) of the said Code shall, as far is may be, apply to such trial:

Provided that in the ease of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year:

Provided further that when at the commencement of, or in the course of a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence Of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.]

——————–

1. Ins. by Act 34 of 1976, Sec. 13 (w.e.f. lst April, 1976).

Section 17. Offences by companies

¹[Offences by companies. (1) Where an offence under this Act has been committed by a company-

(a) (i) The person, if any, has been nominated under sub-section (2)to be in charge of, and responsible to the company for the conduct of the business of the company (hereafter in this section referred to as the person responsible), or

(ii) Where no person has been so nominated, every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company; and

(b) The company

Shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.

(2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated.

Explanation-Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.

(3) The person nominated under sub-section (2) shall, until-

(i) Further notice cancelling such nomination is received from the company by the Local (Health) Authority; or

(ii) He ceases to be a director or, as the case may be, manager of the company: or

(iii) He makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination which request shall be complied with by the Local (Health) Authority, whichever is the earliest, continue to be the person responsible:

Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of’ such cesser to the Local (Health) Authority:

Provided further that where such person makes a request under Cl. (iii) the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made.

(4) Notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company not being a person nominated under subsection (2), such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation-For the purposes of this section, -

(a) “Company” means any body corporate and includes a firm or other association of individuals:

(b) “Director”, in relation to a firm, means a partner in the firm; and

(c) “Manager” in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it.

——————–

1. Subs. by Act 34 of 1976. Sec. 14, for Sec. 17 (w.e.f. 1st April 1976).

Section 18. Forfeiture of property

Where any person has been convicted under this Act for the contravention of any of the provisions of this Act or of any rule there under, the article of food in respect of which the contravention has been committed may be forfeited to the Government.

¹[Provided that where the Court is satisfied that the article of food is capable of being made to conform to prescribed standards for human consumption after reprocessing, the Court may order the article of food to be returned to the owner, on his executing a bond with or without sureties, or being sold, subject to the other provisions of this Act, after reprocessing under the supervision of such officer as may be specified therein.

——————–

1. Ins by Act 34 of 1976, Sec. 15 (w.e.f. 1st April 1976)

Section 19. Defences, which may or may not be allowed in prosecutions under this Act

(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any Adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.

¹(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if lie proves-,

(a) That he purchased the article of- food–

(i) In a case where a licence is prescribed for the sale thereof, from a daily licensed manufacturer, distributor or dealer;

(ii) In any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and

(b) That the article of food while in his possession was property stored and That he sold it in the same State as he purchased it.]

(3) Any person by whom a warranty as is referred to, ²[in Sec. 14] is alleged to have been given shall be entitled to appear at the hearing and give evidence.

STATE AMENDMENTS

Uttar Pradesh. –After Sec. 19, the Allowing section shall be inserted. namely:

“19A.Burden of proof. –. When any article intended for food is seized from any person under sub-section (4) of ‘Sec I 0 by a Food inspector in the reasonable belief that the same is adulterated or misbranded, the burden of proving that Such article intended for food is not adulterated or. Misbranded shall be on the person from whose possess such article intended for food was seized. “³

West Bengal. -After Sec. 19. The, following section shall be inserted, namely: Burden-of–proof. -When any article intended for food is seized from any person in the reasonable belief that the same is adulterated or misbranded the burden of proving that such article intended for _food is not adulterated or misbranded shall be on the person from whose possession such article intended for food was seized.⁴

——————–

1. Subs. by Act 49 of 1964 sec 10 (w.e.f. 1st March. 1965).

2. Subs. by ibid for the words “in sub-section (2)” (w.e.f. 1st march, 1965).

3. Vide the Prevention of Adulterated of Food, Drugs and Cosmetics (Uttar Pradesh Amendment) Act. 1974 (U.P. Act No- 47 of 1975) (w.e f. 15th December, 1975).

4. Vide the West Bengal Act XLII of 19’73. published in the Calcutta Gazette, Pt. 111, No. 267, dated 29th April, 19,14 (w.e.f. 29tti April, 1974).

Section 20. Cognizance and trial of offences

¹[(1) No prosecution for an offence under this Act, not being an offence under this Sec. 14 or Sec. 14-A] shall be instituted except by, or with the written consent of, ²[the Central Government or the State Government ³[***] or a person authorised in this behalf by general or special order, by the Central Government or the State Government ²[***]:

Provided that a prosecution for an offence under this Act may be instituted by a purchaser ⁴[or recognisede consumer association] referred instituted to in Sec. 12 ⁵[if he or it produces] in Court a copy of the report of the public analyst along with the complaint.

⁶[(2) No Court interior to that of Metropolitan Magistrate or a, Judicial Magistrate of the first class shall try any offence under this Act.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence, punishable under sub-section (I -AA) of Sec. 16 shall be cognizable and non-bailable.]

STATE AMENDMENT

West Bengal. -For Sec. 20, the following section shall be inserted, namely:”20. Cognizance offences and arrest without warrant. -(1) All offences punishable under this Act shall be cognizable and non-bailable.

(2) Any police officer not below the rank of a Sub- Inspector of police may arrest without warrant any person against whom a reasonable complaint has been made or credible information has been received 0f his having been concerned in any of the offences punishable under this Act.” ⁷

——————–

1. Subs. by Act 34 of 1976, Sec. 16 (w.e.f. Ist, April 1976).

2. Subs by Act 49 to 1964, Sec. II for certain words (w.e.f. Ist March 1965).

3. The words “or a local Authority” emitted by Act 34 oi’1976, Sec. 16 I-or certain words (w.e.f. Ist April 1976).

4. Ins. by Act 70 of 1986, Sec. 3 (a) (w.e.f.Ist May, 1987).

5. Subs. by sec. 3 (b), ibid. (w.e.f. Ist May, for the words “if he produces”.

6. Subs. by Act 34 of 1976, sec. 16.

7. Vide the west Bangal Act (XLII of 1973), published in the Calcutta Gazette, pt. III. No.267, dated 29th April, 1974 (w.e.f.29th April, 1974).

Section 20 A. Power of Court to implead manufacturers, etc

¹[Power of Court to implead manufacturers, etc. Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then the Court may, notwithstanding anything contained in ²[sub-section (3) of Sec. 319 of the Code of Criminal Procedure, 1973 (2 of 1974)], or in Sec. 20 proceed against him as though a prosecution had been instituted against him under Sec. 20.]

——————–

1. Ins. by Act 49 of 1964, Sec. 12 (w.e.f. 1 st March, 1965).

2. Subs. by Act 34 of 1976, Sec. 17, for certain words (w.e.f. I st April. 1976).

Section 20 AA. Application of the Probation of Offenders Act, 1958 and Sec. 360 of the Code of Criminal Procedure, 1973

¹[Application of the Probation of Offenders Act, 1958 and Sec. 360 of the Code of Criminal Procedure, 1973. Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958), or Sec. 360 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age.

——————–

1. Ins. by Act 34 of 1976 . Sec. 18 (w.e.f. 1st April, 1976).

Section 21. Magistrate’s power to impose enhanced penalties

¹[Magistrate’s power to impose enhanced penalties. Notwithstanding anything contained in Sec. 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the first class to pass any sentence authorised by this Act, except a sentence of imprisonment for life or for a term exceeding six years, in excess of his powers under the said section.]

——————–

1. Subs. by Act 34 of 1976, sec 19 (w.e.f. 1st April, 1976)

Section 22. Protection of action taken in good faith

No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act.

Section 22 A. Power of Central Government to give directions

¹[Power of Central Government to give directions. The Central Government may give such directions as it may deem necessary to a State Government regarding the carrying into execution of all or any of the provisions of this Act and the State Government shall comply with such directions.]

——————–

1. Ins. by Act 34 of- 1976. Sec. 20 (w.e.f. 1 st April, 1976).

Section 23. Power of the Central Government to make rules

¹(1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of ‘this Act:

Provided that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen which render it necessary to make rules without such consultation, but in such a case, the Committee shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the amendment, of the said rules.]

²[(1-A) ³[in particular arid without particular and without prejudice to the generality of the foregoing power, such rules may provide lot- all or any of the following matters, namely:]

(a) Specifying the article of food or classes of’ food for the import of which a licence is required] and prescribing the form and Conditions of’ such licence, the authority empowered to issue the same, ⁴[the fees payable therefor, the deposit of any sum as security for the performance of the conditions of the licence and the circumstances under which such licence or security may be cancelled or forfeited]:

(b) Defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food:

(c) Laying down special provisions for imposing rigorous control over the production, distribution and sale of any article or class of articles of food which the Central Government may, by notification in the Official Gazette, specify in this behalf including registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such article or class or articles;

(d) Restricting the packing and labelling of any article of food arid the design of any such package or label with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article or to preventing adulteration;

(e) Defining the qualifications, powers and duties of Food Inspectors and public analyst;

(ee) Defining the laboratories where samples of articles of food or adulterants may be analysed by public analyst under this Act;

(f) Prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture or sale of any article of food

(g) Defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health

(h) Specifying the manner in which containers for samples of food purchased for analysis shall be sealed tip or fastened up

(hh) Defining the methods of ‘analysis:]

(i) Specifying a list of permissible preservatives, other than common salt arid sugar, which alone shall be used in preserved fruits, vegetables, or their products or any other article of food as well as the maximum amount of each preservative:

(j) Specifying the colouring matter and the maximum quantities therefor which may be used in any article of food;

(k) Providing for exemption from this Act or of any requirements contained there and subject to such condition, if any as may be Specified of any article or class of articles of food;

(l) Prohibiting or regulating the manufacture, transport or sale of any article known to be used as an adulterant of food;

(m) Prohibiting or regulating-

(i) The addition of any water, or other diligent or adulterant to any article of food;

(ii) The abstraction of-any ingredient from any article of food

(iii) The sale of any article of food to which such addition or from which such abstraction has been made or which has been otherwise artificially treated;

(iv) The mixing of two or more articles of food which are similar in nature or appearance, ,

(n) Providing for the destruction of such articles of food as are not in accordance with the provisions of this Act or of the rules made thereunder

⁵[(2) Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days ⁶[which may be comprised in one session or in two or more successive sessions, and it before the expiry of ‘the session immediately following the session or the successive sessions aforesaid] both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be: so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]

——————–

1. Ins. by Act 34 of 1976, Sec. 21 (w.e.f. I st April 1976).

2. Remunerated by Act 34 of 1976, Sec. 21 (w.e.f. Ist April 1976).

3. Subs. by ibid, for certain words (w.e.f. Ist April, 1976).

4. Subs. by Act 49 of 1964, Sec.13. for the words and fees payable therefor” (w.e.f- Ist March, 1965).

5. Subs. by Act 49 of 19b4. NCC. 13 (w.e.f. lst March, 1965).

6. Subs. by Act 34 of 1976, Sec. 21, for certain words (w.e.f. Ist April, 1976).

Section 24. Power of the State Government to make rules

(1) The State Government may, after consultation with Committee and subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act in i-natters not falling within the purview of Sec. 23.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may-

(a) Define the powers and duties of the Food (Health) Authority, ¹[local authority and Local (Health) Authority under this Act ²[* * *]:

(b) Prescribe the forms of licences for the manufacture for sale, for the storage, for the sale and for the distribution of articles of food or any specified article of food or class of articles of food, the form of’ application for such licences the conditions subject to which such licences may be issued, the authority empowered to issue the same, ³[the fees payable therefor], the deposit of any sum as security for the performance of the conditions of the licences and the circumstances under which such licences or security ⁴[may be suspended, cancelled or forfeited]:

(c) Direct a fee to be paid for analysing any article of food or for any matter, for which a fee may be prescribed under this Act,

(d) Direct that the whole or any part of the fines imposed under this Act shall be paid to a local authority on realization

(e) Provide for the delegation of the powers and functions conferred by this Act on the State Government or the Food (Health) Authority to subordinate authorities or to local authorities.

(3) All rules made by the State Government under this Act, shall, as soon as possible after they are made, be laid before the respective State legislatures.

STATE AMENDMENT

Maharashtra. -In Sec. 24 o the principal Act, in sub -section (2), in Cl. (d) for the words “shall be paid to a local authority on realization”, the words “shall, on realization, be paid either to ct local authority. Or officer of the State Government is appointed, as the local authority, be credited to the Consolidated fund of the State” shall be substituted⁵.

——————–

1. Subs. by Act 34 of 1976, Sec. 22, for “and local authority”.

2. Certain words omitted by Act 49 of 1964, Sec. 14 (w.e.f. I st March 1965).

3. Subs. by ibid. for the words “and the fees payable therefor”.

4. Subs. by Act 34 of 1976, Sec. 22, for the words “may be cancelled for forfeited” (w.e.f. Ist April 1976),

5. Vide Maharashtra Act (I of 1975) published in the Maharashtra Government Gazette, Pt. IV, dated the 16th October 1975 (w.e.f. 11 Th April 1977).

Section 25. Repeal and saving

(1) It immediately before the commencement of this Act, there is in force in any State to which this Act extends any law Corresponding to this Act, that corresponding law shall upon such commencement stand repealed.

(2) Notwithstanding the repeal by this Act of any corresponding law, all rules, regulations and bye-laws relating to the prevention of adulteration of food made under such corresponding law and in force immediately before the commencement of this Act shall, except where and so far as they are inconsistent with or repugnant to the provisions of this Act, continue in force until altered, amended or repealed by rules made under this Act¹.

——————–

1. In its application to the State of Jammu and Kashmir in Sec. 25 after sub-section (2), the following sub-section shall be inserted, namely:

Plantation Labour Act

November 30, 2014

Preamble

[Act No. 69 of 1951]

AN ACT TO PROVIDE FOR THE WELFARE OF THE LABOUR, AND TO REGULATE THE CONDITIONS OF WORK, IN PLANTATIONS Be it enacted by Parliament in the fifth year of Republic of India as follows :

Section 1. Short title, extent, commencement and application.

(1) This Act may be called the Plantation Labour Act, 1951.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification in the official Gazette, appoint.

(4) It applies to the following plantations, that is to say, – (a) to any land used or intended to be used for growing tea, coffee, rubber cinchona or cardamom which admeasures 5 hectares or more and in which fifteen or more persons are employed or were employed on any day of the proceeding twelve months;

(b) to any land used or intended to be used for growing any other plant, which admeasures 5 hectares or more and in which fifteen or more persons are employed or were employed on any day of the preceding twelve months, if, after obtaining the approval of the Central Government, the State Government, by notification in the official Gazette, so directs.

Explanation : Where any piece of land used for growing any plant, referred to in Cl. (a) or Cl. (b) of this sub-section admeasures less than 5 hectares and is contiguous to any other piece of land not being so used but capable of being so used, and both such piece of land are under the management of the same employer, then, for the purposes of this sub-section, the piece of land first mentioned shall be deemed to be a plantation, if the total area of the both such pieces of the land admeasures 5 hectares or more.

(5) The State Government may, by notification in the official Gazette, declare that all or any of the provision of this Act shall apply also to any land used or intended to be used for growing any plant referred to Cl. (a) or Cl. (b) of sub-section (4), notwithstanding that -

(a) it admeasures less than 5 hectares, or

(b) the number of persons employed therein is less than fifteen :

Provided that no such declaration shall be made in respect of such land which admeasured less than 5 hectares or in which less than fifteen persons were employed, immediately before the commencement of this Act.

Section 2. Definitions.

In this Act, unless the context otherwise requires, -

(a) “adolescent” means a person who has completed his fourteenth year but has not completed his eighteenth year :

(b) “adult” means a person who has completed his eighteenth year;

(c) “child” means a person who has not completed his fourteenth year;

(d) “day” means a period of twenty – four hours beginning at midnight;

(e) “employer”, when used in relation to a plantation, means the person who has the ultimate control over the affairs of the plantation, and where the affairs of any plantation are entrusted to any other person (whether called a managing agent, manager, superintendent or by other name) such other person shall be deemed to be the employer in relation to that plantation;

(ee) “family”, when used in relation to a worker, means – (i) his or her spouse, and

(ii) the legitimate and adopted children of the worker dependent upon him or her, who have not completed their eighteenth year. and includes, where the worker is a male, his parents dependent upon him.

(eee) “Inspector” means an inspector of plantations appointed under sub-section (1) of Sec. 4 and includes an additional inspector of plantations appointed under sub-section (1-A) of that section;

(f) “plantation” means any plantation to which this Act, whether wholly or in part, applies and includes offices, hospitals, dispensaries schools, and any other premises used for any purpose connected with such plantation, but does not include any factory on the premises to which the provisions of the Factories Act, 1948 (64 of 1948), apply.

(g) “prescribed” means prescribed by rules under this Act;

(h) “qualified medical practitioner” means a person holding a qualification granted by an authority specified or notified under Sec. 3 of the Indian Medical Degrees act, 1916 (7 of 1916), or specified in the Schedules to the Indian Medical Council Act, 1956 (102 of 1956), and includes any person having a certificate granted any Provincial or State Medical Council Act;

(i) “wages” has the meaning assigned to it in Cl. (h) of Sec. 2 of the Minimum Wages Act, 1948 (11 of 1948).

(j) “week” means a period of seven days beginning at midnight on Saturday night or such other night as may be fixed by the State Government in relation to plantations in any area after such consultation as may be prescribed with reference to the plantations concerned in that area;

(k) “worker” means a person employed in a plantation for hire or reward, whether directly or through any agency, to do any work, skilled, unskilled, manual or clerical, but does not include – (i) a medical officer employed in the plantation;

(ii) any person employed in the plantation (including any member of the medical staff whose monthly wages exceed rupees seven hundred and fifty,

(iii) any person employed in the plantation primarily in a managerial capacity, notwithstanding that his monthly wages do not exceed rupees seven hundred and fifty; or

(iv) any person temporarily employed in the plantation in any work relating to the construction, development or maintenance of buildings, roads, bridges, drains or canals;

(l) “young person” means a person who is either a child for an adolescent.

Section 3. Reference to time of day.

In this Act, references to time of day are references to Indian Standard Time being five and a half hours ahead of Greenwhich Means Time : Provided that for any area in which the Indian Standard Time is not ordinarily observed, the State Government may make rules – (a) specifying the area;

(b) defining the local mean time ordinarily observed therein; and

(c) permitting such time to be observed in all or any of the plantations situated in that area.

Section 3A. Appointment of registering officers.

The State Government may by notification in the official gazette, – (a) appoint such persons, being gazetted officers of Government, as it thinks fit, to be registering officers for the purpose of this chapter, and

(b) define the limits within which a registering officer shall exercise the powers and discharge the functions conferred or imposed on him by or under this chapter.

Section 3B. Registration of plantations.

(1) Every employer of the plantation, existing at the commencement of the Plantations Labour (Amendment) Act, 1981, shall within a period of sixty days of such commencement, and every employer of any other plantation coming into existence after such commencement shall, within a period of sixty days of the coming into existence of such plantation, make an application to the registering officer for the registration of such plantation : Provided that the registering officer may entertain any such application after the expiry of the period aforesaid if he is satisfied that the applicant was prevented by sufficient cause from making the application within such period.

(2) Every applicant made under sub-section (1) shall be in such form and shall contain such particulars and shall be accompanied by such fees as may be prescribed.

(3) After the receipt of an application under sub-section (1) the registering officer shall register the plantation.

(4) Where a plantation is registered under this section, the registering officer shall issue a certificate of registration to the employer thereof in such form as many be prescribed.

(5) Where, after the registration of a plantation under this section, any change occurs in the on ownership or management or in the extent of the area or other prescribed particulars in respect of such plantation, the particulars regarding such change shall be intimated by the employer to the registering officer within thirty days of such change in such form as may be prescribed.

(6) Where as a result of any intimation received under sub-section (5), the registering officer is satisfied that the plantation is no longer required to be registered under this section, he shall, by order in writing, cancel the registration thereof and shall, as soon as practicable, cause such order to be published in any one newspaper in the language of, and having circulation in, the area where the plantation is situated.

Section 3C Appeals against order of registering officer.

(1) Any person aggrieved by the order of a registering officer under sub-section (6) of Sec. 3-B may, within thirty days of the publication of such order in the newspaper under that sub-section, prefer an appeal to such authority as may be prescribed. Provided that the appellate authority may entertain an appeal under this sub-section after the expiry of the aforesaid period if it is satisfied that the appellant was prevented by sufficient cause from referring the appeal within such period.

(2) After the receipt of an appeal under sub-section (1), the appellate authority may, after giving the appellant, the employer refereed to in sub-section (5) of Sec. 3-B and the registering officer an opportunity of being heard in the matter, dispose of the appeal as expeditiously as possible.

Section 3D. Power to make rules.

(1) State Government may, by notification in the official Gazette, make rules to carry out the purposes of this Chapter.

(2) In particular, and without prejudice to the generality of the fore-going power, such rules may provide for all or any of the following matters, namely :

(a) the form of application for the registration of a plantation, the particulars to be contained in such application and the fees to be accompanied along with such application;

(b) the form of the certificate of registration;

(c) the particulars regarding any change in respect of which intimation shall be given by the employer to the registering officer under sub-section

(5) of sec. 3-B and the form in which such change shall be intimated;

(d) the authority to which an appeal may be preferred under Sec. 3-C and the fees payable in respect of such appeal;

(e) the registers to be kept and maintained by the registering officer.

Section 4. Chief inspector and inspectors.

(1) The State Government may, by notification in the official Gazette, appoint for the State a duly qualified person to be the chief inspector of plantation and so many duly qualified person to be inspectors of plantation subordinate to the chief inspector as it thinks fit.

(1-A) The State Government may also, by notification in the official Gazette, appoint such officers of the State Government or of any local authority under its control, as it thinks fit, to be additional inspectors of plantation for all or any of the purpose of this Act.

(2) Subject to such rules as may be made in this behalf by the State Government, the chief inspector may declare the local area or areas within which, or the plantation with respect to which, inspectors shall exercise their powers under this Act, and may himself exercise the powers of an inspector within such limits as may be assigned to him by the State Government.

(3) The chief inspector and all inspectors shall be deemed to be public servants within the meaning of the Indian Penal Code, 1860 (45 of 1860).

Section 5. Power and functions of inspectors.

Subject to any rules made by the State Government in this behalf, an inspector may, within the local limits for which he is appointed – (a) make such examination and inquiry as he thinks fit in order to ascertain whether the provisions of the Act and of the rules made thereunder are being observed in the case of any plantation;

(b) with such assistants, if any, as he thinks fit, enter, inspect and examine any plantation or part thereof at any reasonable time for the purpose of carrying out the objects of this Act;

(c) examine the crops grown in any plantation or any worker employed therein or require the production of any register or other document maintained in pursuance of this Act, and take on the spot or otherwise statements of any person which he may consider necessary for carrying out the purpose of this Act;

(d) exercise such other powers as may be prescribed :

Provided that no person shall be compelled under this section to answer any question or make any statement tending to incriminate himself.

Section 6. Facilities to be afforded to inspectors.

Every employer shall afford the inspector all reasonable facilities for making any entry, inspection, examination or inquiry under this Act.

Section 7. Certifying surgeons.

(1) The State Government may appoint qualified medical practitioners to be certifying surgeons for the purposes of this Act within such local limits or for such plantation or class of plantations or it may assign to them respectively.

(2) The certifying surgeon shall carry out duties as may be prescribed in connection with – (a) the examination and certification of workers;

(b) the exercise of such medical supervision as may be prescribed where adolescents and children are, or are to be; employed in any work in any plantation which is likely to cause injury to their health.

Section 8. Drinking water.

In every plantation effective arrangements shall be made by the employer to provide and maintain at convenient places in the plantation a sufficient supply of wholesome drinking water for all workers.

Section 9. Conservancy.

(1) There shall be provided separately for males and females in every plantation a sufficient number of latrines and urinals of prescribed types so situated as to be convenient and accessible to workers employed therein.

(2) All latrines and urinals provided under sub-section (1) shall be maintained in a clean and sanitary condition.

Section 10. Medical facilities.

(1) In every plantation there shall be provided and maintained so as to be readily available such medical facilities for the workers and their families as may be prescribed by the State Government.

(2) If in any plantation medical facilities are not provided and maintained as required by sub-section (1) the chief inspector may cause to be provided therein such medical facilities and recover the cost thereof from the defaulting employer.

(3) For the purposes of such recovery the chief inspector may certify the costs to be recovered to the Collector, who may recover the amount as an arrear of land-revenue.

Section 11. Canteens.

(1) The State Government may make rules requiring that in every plantation wherein one hundred and fifty workers are ordinarily employed, one or more canteens shall be provided and maintained by the employer for the use of the workers.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for – (a) at date by which the canteen shall be provided :

(b) the number of canteens that shall be provided and the standards in respect of construction, accommodation, furniture and other equipments of the canteens;

(c) the foodstuffs which may be served therein and the charges which may be made therefor;

(d) the constitution of a managing committee for the canteen and the representation of the workers in the management of the canteen;

(e) the delegation to the chief inspector, subject to such conditions as may be prescribed, of the power to make rules under Cl. (c).

Section 12. Creches.

(1) In every plantation wherein fifty or more women workers (including women workers employed by any contractor) are employed or employed on any day of the preceding twelve months, or where the number of children of women workers (including women workers employed by any contractor) is twenty or more, there shall be provided and maintained by the employer suitable rooms for the use of children of such women workers.

Explanation : For the purposes of this sub-section (1-A) “children” means persons who are below the age of six years. (1-A) Notwithstanding anything contained in sub-section (1), if in respect of any plantation wherein less than fifty women workers (including women workers employed by any contractor) are employed or were employed on any day of the preceding twelve months, or where the number of children of such women workers is less than twenty, the State Government, having regard to the number of children of such women workers deems it necessary that suitable rooms for the use of such children should be provided and maintained by the employer, it may by order, direct the employer to provide and maintain such rooms and thereupon the employer shall be bound to comply with such direction.

(2) The rooms referred to in sub-section (1) or sub-section (1-A) shall : (a) provide adequate accommodation;

(b) be adequately lighted and ventilated;

(c) be maintained in a clean and sanitary conditions; and

(d) be under the charge of a woman trained in the care of children and infants.

(3) The State Government may make rules prescribing the location and the standards of the rooms referred to in sub-section (1) or sub-section (1-

A) in respect of their construction and the equipment and amenities to be provided therein.

Section 13. Recreational facilities.

The State Government may make rules requiring every employer to make provision in his plantation for such recreational facilities for the workers and children employed therein as may be prescribed.

Section 14. Educational facilities.

Where the children between the ages of six and twelve of workers employed in any plantation exceed twenty-five in number the State Government may make rules requiring every employer to provide educational facilities, for the children in suck manner and of such standard as may be prescribed.

Section 15. Housing facilities.

It shall be the duty of every employer to provide and maintain necessary housing accommodation, -

(a) for every worker (including his family) residing in the plantation;

(b) for every worker (including his family) residing outside the plantation, who has put in six months continuous service in such plantation and who has expressed a desire in writing to reside in the plantation :

Provided that the requirement of continuous service of six months under this clause shall not apply to a worker who is a member of the family of a deceased worker, who, immediately before his death, was residing in the plantation.

Section 16. Power to make rules relating to housing.

The State Government may make rules for the purpose of giving effect to the provisions of Sec. 15 and, in particular providing for – (a) the standard and specification of the accommodation to be provided;

(b) the selection and preparation of sites for the construction of houses and the size of such plot;

(c) the constitution of advisory boards consisting of representatives of the State Government, the employer and the workers for consultation in regard to matters connected with housing and the exercise by them of such powers, functions and duties in relation thereto as may be specified;

(d) the fixing of rent, if any, for the housing accommodation provided for workers;

(e) the allotment to workers and their families of housing accommodation and of suitable strips of vacant land adjoining such accommodation for the purpose of maintaining kitchen gardens, and for the eviction of workers and their families from such accommodation;

(f) access to the public to those parts of the plantation wherein the workers are housed.

Section 16A. Liability or employer in respect or accidents resulting from collapse of houses provided by him.

(1) If death or injury is caused to any worker or a member of his family as a result of the collapse of a house provided under Sec. 15, and the collapse is not solely and directly attributable to a fault on the part of any occupant of the house or to a natural calamity, the employer shall be liable to pay compensation.

(2) The provisions of Sec. 4 of, and Sch. IV to the Workmen’s Compensation Act, 1923 (8 of 1923), as in force for the time being, regarding the amount of compensation payable to a workman under that Act shall, so far as may be, apply for the determination of the amount of compensation payable under sub-section (1).

Section 16B. Appointment or commissioners.

The State Government may, by notification in the official Gazette, appoint as many persons, possessing the prescribed qualifications, as it thinks fit, to be commissioners to determine the amount of compensation payable under Sec. 16-A and may define the limits within which each such Commissioner shall exercise the powers and discharge the functions conferred or imposed on him by or under this Act.

Section 16C. Application for compensation.

An application for payment or compensation under Sec. 16-A may be made to the Commissioner, -

(a) by the person who has sustained the injury; or

(b) by any agent duly authorized by the person who has sustained the injury; or

(c) where the person who has sustained the injury is a minor, by his guardian; or

(d) where death has resulted out of the collapse of the house, by any dependent of the deceased or by any agent duly authorized by such dependent, or, if such dependant is a minor, by his guardian.

(2) Every application under sub-section (1) shall be in such form and shall contain such particulars as may be prescribed.

(3) No application for compensation under this section shall be entertained unless it is made within six months of the collapse of the house :

Provided that the Commissioner may, if he is satisfied that the applicant was prevented by sufficient cause from making the application within the aforesaid period of six months entertain such application within a further period of six months.

Explanation : In this section, the expression “dependant” has the meaning assigned to it in Cl. (d) of Sec. 2 of the Workmen’s Compensation Act, 1923 (8 of 1923).

Section 16D. Procedure and powers.

(1) On receipt of an application under Sec. 16-C, the Commissioner may make an inquiry into the matter covered by the application.

(2) In determining the amount of compensation payable under Sec. 16-A, the Commissioner may, subject to any rules that may be made in this behalf, follow such summary procedure as he thinks fit.

(3) The Commissioner shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely :

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any court or office;

(e) issuing commissions for the examination of witnesses or documents;

(f) any other matter which may be prescribed.

(4) Subject to any rules that may be made in this behalf, the Commissioner may, for the purpose of determining any claim or compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist him in holding the inquiry.

Section 16E. Liability to pay compensation, etc. To be decided by commissioner.

(1) Any question as to the liability of an employer to pay compensation under Sec. 16-A, or as to the amount thereof, or as to the person to whom such compensation is payable, shall be decided by the Commissioner.

(2) Any person aggrieved by a decision of the Commissioner refusing to grant compensation, or as to the amount of compensation granted to him, or to the apportionment thereof, may prefer an appeal to the High Court having jurisdiction over the place where the collapse of the house has occurred, within ninety days of the communication of the order of the Commissioner to such person : Provided that the High Court may entertain any such appeal after the expiry of the period aforesaid if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within such period; Provided further that nothing in this sub-section shall be deemed to authorize the High Court to grant compensation in excess of the amount of compensation payable under Sec. 16-A.

(3) Subject to the decision of the High Court in cases in which an appeal is preferred under sub-section (2), the decision of the Commissioner under sub-section (1) shall be final and shall not be called in question in any Court.

Section 16F. Saving as to certain rights.

The right of any person to claim compensation under Sec. 16-A shall be without prejudice to the right of such person to recover compensation payable under any other law for the time being in force, but no person shall be entitled to claim compensation more than once in respect of the same collapse of the house.

Section 16G. Power to make rules.

The State Government may, by notification in the official Gazette, make rules for giving effect to the provisions of Secs. 16-A to 16-F (both inclusive).

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for -

(i) the qualifications and conditions of service of Commissioners;

(ii) the manner in which claims for compensation may be inquired into and determined by the Commissioner;

(iii) generally for the effective exercise of any powers conferred on the Commissioner.

Section 17. Other facilities.

The State Government may make Rules requiring that in every plantation the employer shall provide the workers with such number and type of umbrellas, blankets, rain coats or other like amenities for the protection of workers from rain or cold as may be prescribed.

Section 18. Welfare officers.

(1) In every plantation wherein three hundred or more workers are ordinarily employed the employer shall employ such number of welfare officers as may be prescribed.

(2) The State Government may prescribe the duties, qualifications and conditions of service of officers employed under sub-section (1).

State Amendments

Section 18-A. Chief inspector to provide facilities on default by employer.

If in any plantation, facilities are not provided or maintained by the employer as required by Sec. 8. Sec. 9 or Sec. 12 or Sec. 15 or the rules made under Sec. 11 or Sec. 14 or Sec, 17, the Chief Inspector may cause to be provided or maintained therein such facilities and recover the cost thereof from the defaulting employer :

Provided that before providing or maintaining such facilities the employer shall be given an opportunity of being heard.

(2) For the purpose of recovery of the cost under sub-section (1) the Chief Inspector may certify the amount to be recovered to the Collector, who may thereupon recover such amount as an arrear of land revenue. – Vide Kerala Act 25 of 1969, Secs. 2 and 3 (w.e.f. 1st December, 1969).]

Section 19. Weekly hours.

(1) Save as otherwise expressly provided in this Act, no adult worker shall be required or allowed to work on any plantation in excess of forty-eight hours a week and no adolescent of child for more than twenty seven hours a week.

(2) Where an adult worker works in any plantation on any day in excess of the number of hours constituting a normal working day or for more than forty eight hours in any week, he shall, in respect of such overtime work, be entitled to twice the rates of ordinary wages :

Provided that no such worker shall be allowed to work for more than nine hours on any day and more than fifty-four hours in any week.

(3) For any work done on any closed holiday in the plantation or on any day of rest, a worker shall be entitled to twice the rates of ordinary wages as in the case of overtime work.

Section 20. Weekly holidays.

(1) The State Government may, by rules made in this behalf – (a) provide for a day of rest in every period of seven days which shall be allowed to all workers;

(b) provide for the conditions subject to which, and the circumstances in which, an adult worker may be required or allowed to work overtime.

(2) Notwithstanding anything contained in Cl. (a) of sub-section (1) where a worker is willing to work on any day of rest which is not a closed holiday in the plantation, nothing contained in this section shall prevent him from doing so :

Provided that in so doing a worker does not work for more than ten days consecutively without a holiday for a whole day intervening.

Explanation I : Where on any day a worker has been prevented from working in any plantation by reason of tempest, fire, rain or other nature causes, that day, may, if, he so desires be treated as his day of rest for the relevant period of seven days within the meaning of sub-section (1).

Explanation II : Nothing contained in this section shall apply to any worker whose total period of employment including any day spent on leave is less than six days.

Section 21. Daily intervals for rest.

The period of work on each day shall be so fixed that no period shall exceed five hours and that no worker shall work for more than five hours before he has had an interval for rest for at least half an hour.

Section 22. Spread-over.

The period of work of an adult worker in a plantation shall be so arranged that inclusive of his interval for rest under Sec.21 it shall not spread over more than twelve hours including the time spent in waiting for work on any day.

Section 23. Notice of period of work.

(1) There shall be displayed and correctly maintained in every plantation a notice of periods of work in such form and manner as may be prescribed showing clearly for every day the periods during which the workers may be required to work.

(2) Subject to the other provisions contained in this Act, no worker shall be required or allowed to work in any plantation otherwise than in accordance with the notice of periods of work displayed in the plantation.

(3) An employer may refuse to employ a worker for any day if on that day he turns up for work more than half an hour after the time fixed for the commencement of the day’s work.

24. OMITTED BY ACT 61 OF SEC. 24(b), (W.E.F., 23RD DECEMBER, 1986).

Section 24. Omitted by act 61 of sec. 24(b), (w.e.f., 23rd december, 1986).

24. OMITTED BY ACT 61 OF SEC. 24(b), (W.E.F., 23RD DECEMBER, 1986).

Section 25. Night work for women and children.

Except with the permission of the State Government, no woman or child worker shall be employed in any plantation otherwise than between the hours of 6 A.M. and 7 P.M.

Provided that nothing in this section shall be deemed to apply to midwives and nurses employed as such in any plantation.

Section 26. Nonadult workers to carry to tokens.

No child and no adolescent shall be required or allowed to work in any plantation unless – (a) a certificate of fitness granted with reference to him under Sec. 27 is in the custody of the employer; and

(b) such child of adolescent carries with him while he is at work a token giving a reference to such certificate.

Section 27. Certificate of fitness.

(1) A certifying surgeon shall, on the application of any young person or his parent or guardian accompanied by a document signed by the employer or any other person on his behalf that such person will be employed in the plantation if certified to be fit for work, or on the application of the employer or any other person on his behalf with reference to any young person intending to work, examine such person and ascertain his fitness for work either as a child or as an adolescent.

(2) A certificate of fitness granted under this section shall be valid for a period of twelve months from the date thereof, but may be renewed.

(3) Any fee payable for a certificate under this section shall be paid by the employer and shall not be recoverable from the young person, his parents or guardian.

Section 28. Power to require medical examination.

An inspector may, if he thinks necessary so to do, cause any young person employed in a plantation to be examined by a certifying surgeon.

Section 29. Application of chapter.

(1) The provisions of this chapter shall not operate to the prejudice of any rights to which a worker may be entitled under any other law or under other terms of any award, agreement, or contract of service :

Provided that where such award, agreement or contract of service provides for a longer leave with wages than provided in this chapter the worker shall be entitled only to such longer leave.

Explanation : For the purpose of this chapter leave shall not, except as provided in Sec. 30, include weekly holidays or holidays for festivals or other similar occasions.

Section 30. Annual leave with wages.

(1) Every worker shall be allowed leave with wages for a number of days calculated at the rate of -

(a) if an adult, one day for every twenty days of work performed by him, and

(b) if a young person, one day for every fifteen days of work performed by him :

Explanation: For the purpose of calculating leave under this sub-section -

(a) any day on which no work or less than half a day’s work is performed shall not be counted, and

(b) any day on which half or more than half a day’s work is performed shall be counted as one day.

Explanation II : The leave admissible under this sub-section shall be exclusive of all holidays, whether occurring during, or at either end of, the period of leave.

(2) If a worker does not in any one period of twelve months take the whole of the leave allowed to him under sub-section (1) any leave not taken by him shall be added to the leave to be allowed to him under that sub-section in the succeeding period of twelve months.

(3) A worker shall cease to earn any leave under this section when the earned leave due to him amounts to thirty days.

(4) If the employment of a worker who is entitled to leave under this section is terminated by the employer before he has taken the entire leave to which he is entitled, the employer shall pay him the amount payable under Sec. 3 in respect of the leave not taken, and such payment shall be made before the expiry of the second working day after such termination.

Section 31. Wages during leave period.

(1) For the leave allowed to a worker under Sec. 30, he shall be paid, – (a) if employed wholly on a time-rate basis, at a rate equal to the daily wages payable to him immediately before the commencement of such leave under any law or under the terms of any award, agreement or contract of service, and (b) in other cases, including cases where he is, during the preceding twelve calendar months, paid partly on a time-rate basis and partly on a piece-rate basis, at the rate of the average daily wage calculated over the preceding twelve calendar months. Explanation : For the purposes of Cl.(b) of sub-section (1), the average daily wage shall be computed on the basis of his total full time earnings during the preceding twelve calendar months, exclusive of any overtime earnings of bonus, if any, but inclusive of dearness allowance.

(1-A) In addition to the wages for the leave period at the rates specified in sub-section (1), a worker shall also be paid the cash value of food and other concessions, if any, allowed to him by the employer in addition to his daily wages unless these concessions are continued during the leave period.

(2) A worker who has been allowed leave for lpa-35 any period not less than four days in the case of an adult and five days in the case of a young person under Sec. 30 shall, before his leave begins, be paid his wages for the period of the leave allowed.

Section 32. Sickness and maternity benefits.

(1) Subject to any rules that may be made in this behalf, every worker shall be entitled to obtain from his employer – in the case of sickness certified by a qualified medical practitioner, sickness allowance, at such rate, for such period and at such intervals as may be prescribed.

(2) The State Government may make rules regulating the payment of sickness allowance and any such rules may specify the circumstances in which such allowance shall not be payable or shall cease to be payable, and in framing any rules under this section the State Government shall have due regard to the medical facilities that may be provided by the employer in any plantation.

Section 32A. Notice of accident.

Where in any plantation, an accident occurs which causes death or which causes bodily injury to a worker by reason of which the worker injured is prevented from working for a period of forty-eight hours or more immediately following the accident, or which is of such a nature as may be prescribed in this behalf, the employer thereof shall send notice thereof to such authorities, in such form, and within such time, as may be prescribed.

Section 32B. Register of accidents.

The employer shall maintain a register of all accidents which occur in the plantation in such form and in such manner as may be prescribed.

Section 33. Obstruction.

(1) Whoever obstructs an inspector in the discharge of his duties under this Act or refuses or wilfully neglects to afford the inspector any reasonable facility for making any inspection, examination or inquiry authorised by ar under this Act in relation to any plantation, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

(2) Whoever wilfully refuses to produce on the demand of an inspector any register or other document kept in pursuance of this Act, or prevents or attempts to prevent or does anything which he has reason to believe is likely to prevent any person from appearing before or being examined by an inspector acting in pursuance of his duties under this Act, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Section 34. Use of false certificate of fitness.

Whoever knowingly uses or attempts to use as a certificate of fitness granted to himself under Sec. 27 a certificate granted to another person under that section, or having been granted a certificate of fitness to himself, knowingly allows it to be used, or allows an attempt to use it to be made by another person, shall be punishable with imprisonment which may extend to one month, or with fine which may extend to fifty rupees, or with both.

Section 35 Contravention of provisions regarding employment of labour.

Whoever, except as otherwise permitted by or under this Act, contravenes any provision of this Act or of any rules made thereunder prohibiting, restricting or regulating the employment of persons in a plantation, shall be punishable with imprisonment for a term, which may extend to three months, or fine, which may extend to five hundred rupees, or with both.

Section 36. Other offences.

Whoever contravenes any of the provisions of this Act or of any rules made thereunder for which no other penalty is elsewhere provided by or under this Act shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Section 37. Enhanced penalty after previous conviction.

If any person who has been convicted of any offence punishable under this Act is again guilty of an offence involving a contravention of the same provision, he shall be, punishable on a subsequent conviction with imprisonment which may extend to six months, or with fine which may extend to one thousand rupees, or with both :

Provided that for the purposes of this section no cognizance shall be taken of any conviction made more than two years before the commission of the offence which is being punished.

Section 37A. Power of court to make orders.

(1) Where an employer is convicted of an offence punishable under Sec. 36, the Court may, in addition to, awarding any punishment, by order in writing, require him within such period as may be specified in the order (which the Court may if it thinks fit and on an application made in this behalf by the employer, from time to time, extend) to take such measures as may be so specified for remedying the matters in respect of which the offence was committed.

(2) Where an order is made under sub-section (1), the employer shall not be liable under this Act in respect of the continuation of the offence during the period or extended period, as the case may be, specified by the Court, but if, on the expiry of such period or extended period, the order of the Court has not been fully complied with, the employer shall be deemed to have committed a further offence and he shall, on conviction, be punishable with imprisonment for a term which may extend to six months and with fine which may extend to three hundred rupees for every day after such expiry.

Section 38. Exemption of employer from liability in certain cases.

Where an employer charged with an offence under this Act, alleges that another person is the actual offender, he shall be entitled upon complaint made by him in this behalf to have, on giving to the prosecutor in this behalf three cleat days’ notice in writing of his intention so to do, that other person brought before the Court on the day appointed for the hearing of the case and if, after the commission of the offence has been proved, the employer proves to the satisfaction of the Court that -

(a) he has used due diligence to enforce the execution of the relevant provisions of this Act; and

(b) that the other person committed the offence in question without his knowledge, consent or connivance; the said other person shall be convicted of the offence and shall be liable to the like punishment as if he were the employer and the employer shall be acquitted :

Provided that – (a) the employer may be examined on oath and his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges to be the actual offender and by the prosecutor, and (b) if, inspite of due diligence, the person alleged as the actual offender cannot be brought before the Court on the day appointed for the hearing of the case, the Court shall adjourn the hearing thereof from time to time so, however, that the total period of such adjournment does not exceed three months, and if, by the end of the said period, the person alleged as the actual offender cannot still be brought before the Court, the court shall proceed to hear the case against the employer.

Section 39. Cognizance of offences.

No Court shall take cognizance of any offence under this Act except on complaint made by, or with the previous sanction in writing of, the chief inspector and no Court inferior to that of a presidency magistrate or a magistrate of the second class shall try any offence punishable under this Act.

Section 40. Limitation of prosecutions.

No court shall take cognizance of an offence punishable under this Act unless the complaint thereof has been made or is made within three months from the date on which the alleged commission of the offence came to the knowledge of an inspector :

Provided that where the offence consists of disobeying a written order made by an inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.

Section 41. Power to give directions.

The Central Government may give directions to the Government of any State as to the carrying into execution in the State of the provisions contained in this Act.

Section 42. Power to exempt.

The State Government may, by order in writing exempt, subject to such conditions and restrictions as it may thinks fit to impose, any employer or class of employers from all or any of the provisions of this Act :

Provided that no such exemption other than exemption from Sec. 19 shall be granted except with the previous approval of the Central Government.

Section 43. General power to make rules.

(1) The State Government may, subject to the condition of previous publication, make rules to carry out the purposes of this Act : Provided that the date to be specified under Cl. (3) of Sec. 23 of the General Clauses Act, 1978 (10 of 1978), shall not be less than six weeks from the date on which the draft of the proposed rules was published.

(2) In particular, and without prejudice to the generality of the foregoing power, any such rules may provide for -

(a) the qualifications required in respect of the chief inspector and inspector;

(b) the powers which may be exercised by inspectors and the areas in which and the manner in which such powers may be exercised;

(c) the medical supervision which may be exercised by certifying surgeons;