November 30, 2014
Section 1. Short title, extent and commencement
(1) This Act may be called the Land Acquisition Act, 1894.
(2) It extends to the whole of India 1[except the State of Jammu and Kashmir]
(3) It shall come into force on the 1st day of March 1894.
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1. Subs. by Act No. 68 of 1984, (w.e.f. 24-9-1984).
Section 2. Repeal and saving
[Repealed partly by the Repealing and Amending Act, 1914 (X of 1914) Section 3 and Sch. II and partly by the Repealing Act, 1938 (1 of 1938 Section 2 and Sch.]
Section 3. Definitions
In this Act, unless there is something repugnant in the subject or context, -
(a) The expression “land” includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth;
1[“(aa) The expression “local authority” includes a town planning authority (by whatever name called) set up under any law for the time being in force];
(b) The expression “person interested” includes all persons claiming an interest in compensation to be made because of the acquisition of land under this Act-, and a person shall be deemed interested in land if he is interested in an easement affecting the land;
(c) The expression “Collector” means the Collector of a district, and includes a Deputy Commissioner and any officer specially appointed by the Appropriate Government to perform the functions of a Collector under this Act;
1[(cc) The expression “corporation owned or controlled by the State” means any body corporate established by or under a Central, Provincial or State Act, and includes a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956), a society registered under the Societies Registration Act, 1860 (21 of 1860). or under any corresponding law for the time being in force in a state being a society established or administered by Government and a cooperative society within the meaning of any law relating to co-operative societies for the time being in force in any State, being a co-operative society in which not less than fifty-one per centum of the paid-tip share capital is held by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments,]”
(d) The expression “Court” means a principal Civil Court of original jurisdiction, unless the Appropriate Government has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of the Court under this Act;
(e) The expression “company” means-
(i) A company as defined in Section 3 of the Companies Act, 1956 (1 of 1956), other than a Government company referred to in clause (cc);
(ii) A society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, other than a society referred to in clause (cc);
(iii) A co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, other than a co-operative society referred to in clause (cc);
(ee) The expression “appropriate Government” means in relation to acquisition of land for the purposes of the Union the Central Government, and, in relation to acquisition of land for any other purposes, the State Government;
2[(f) The expression “public purpose” includes-
(i) The provision of village-sites, or the extension, planned development or improvement of existing village-sites;
(ii) The provision of land for town or rural planning;
(iii) The provision of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development as planned;
(iv) The provision of land for a corporation owned or controlled by the State;
(v) The provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State;
(vi) The provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government, or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government, by local authority, or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State;
(vii) The provision of land for any other scheme of development sponsored by Government or, with the prior approval of the appropriate Government, by a local authority;
(viii) The provision of any premises or building for locating a public office, but does not include acquisition of land for companies]
(g) The following persons shall be deemed persons “entitled to act” as and to the extent hereinafter provided (that is to say)-
Trustees for other persons beneficially interested shall be deemed the persons entitled to act with reference to any such case, and that to the same extent as the persons beneficially interested could have acted if free from disability; a married woman, in cases to which the English law is applicable, shall be deemed the person so entitled to act, and, whether of full age or not, to the same extent as if she were unmarried and of full age; and the guardians of minors and the committees or managers of lunatics or idiots shall be deemed respectively the persons so entitled to act to the same extent as the minors, lunatic or idiots themselves, if free from disability, could have acted:
Provided that-
(i) No person shall be deemed “entitled to act” whose interests in the subject matter shall be shown to the satisfaction of the Collector or Court to be adverse to the interest of the person interested for which he would otherwise be entitled to act;
(ii) In every such case the person interested may appear by a next friend, or, in default of his appearance by a next friend, the Collector or Court, as the case may be, shall appoint a guardian for the case to act on his behalf in the conduct thereof,
(iii) The provisions of 2[Order XXXI of the first schedule to the Code of Civil Procedure, 1908 (5 of 1908)], shall, mutatis mutandis, apply in the case of persons interested appearing before a Collector or Court by a next friend, or by a guardian for the case, in proceedings under this Act; and
(iv) No person “entitled to act” shall be competent to receive the compensation money payable to the person for whom he is entitled to act, unless he would have been competent to alienate the land and receive and give a good discharge for the purchase money on a voluntary sale.
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1. Ins by Act No.68 of l984, sec. 3 (w.e.f. 24-9-1984).
2. Subs. by Act No.68 of 1984, (w.e.f. 24-9-1984).
Section 4. Publication of preliminary notification and powers of officers there upon
(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the official Gazette 1[and in two daily newspapers circulating in that locality of which at least one shall be in the regional language] and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality 1[the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of die notification].
(2) Thereupon it shall be lawful for any officer, either, generally or specially authorised by such government in this behalf, and for his servants and workers, to enter upon, survey, and take levels of any land in such locality;
To dig or bore in the sub-soil;
To do all other acts necessary to ascertain whether the land is adapted for Such Purposes;
To set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;
To mark such levels, boundaries and line by placing marks and cutting trenches and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence and jungle:
Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven day’s notice in writing of his intention to do so.
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1. Ins by Act No. 68 of 1984 sec.4 (w.e.f. 24-9-1984).
Section 5. Payment for damage
The officer so authorised shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid, and in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the decision of the Collector or other Chief Revenue officer of the district and such decision shall be final.
Section 5A. Hearing of objections
(1) Any person interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days form the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under subsection (1) shall be made to the Collector in writing and the Collector shall give the objector, an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, subsection (1), or make different reports in respect of different parcels of such land, to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him. for the decision of that Government. The decision of the Appropriate Government on the objections shall be final.
(3) For the purposes of this section, a person shall he deemed to be in load who would be entitled to claim an interest in compensation if the land were acquired under this Act.
Section 6. Declaration that land is required for a public purpose
(1) Subject to the provisions of’ Part VII of this Act, when the Appropriate Government is satisfied after considering the report, if any, made under Section 5A, subsection (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Section 4, sub section (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5-A, sub-section (2):
1[Provided that no declaration in respect of any particular land covered by a notification under Section 4, subsection (1), -
(i) Published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 but before the commencement of the Land Acquisition (Amendment) Act, 1984 shall he made after the expiry of three years front the date of the publication of the notification; or
(ii) Published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:
Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority,
2[Explanation 1
In computing any of the periods referred to in the first proviso the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, subsection (1), is stayed by an order of a Court shall be excluded.
Explanation 2
Where the compensation to be awarded for such property is to he paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues].
(2) Every declaration shall be published in the Official Gazette, 1[and in two daily newspapers circulating in the locality in which the land is Situate of which at least on, shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the date of such publication and the giving of such public notice, being herein after referred to as the date of publication of the declaration), and such declaration shall state] the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be; and, after making such declaration the Appropriate Government may acquire the land in a manner hereinafter appearing.
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1. Subs. by Act No. 68 of 1984, sec. 6 (w.e.f. 24-9-1984).
2. Ins by Act No. 68 of 1984, sec. 6 (w.e.f. 24-9-1984).
Section 7. After declaration, Collector to take order for acquisition
Whenever any land shall have been so declared to be needed for a public purpose or for a company, the appropriate Government or some officer authorised by the appropriate Government in this behalf, shall direct the Collector to take order for the acquisition of the land.
Section 8. Land to be marked out, measured and planned
The Collector shall thereupon cause the land (unless it has been already marked out under Section 4), to he marked out. He shall also cause it to be measured, and (if no plan has been made thereof), a plan to be made of the same.
Section 9. Notice to persons interested
(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.
(2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections (if any) to the measurements made under Section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.
(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the revenue district in which the land is situate.
(4) In case any person so interested resides elsewhere, and has no such agent the notice shall be sent to him by post in A letter addressed to him at his last known residence, address or place of business and 1[registered under Sections 28 and 29of the Indian Post Office Act, 1898 (6 of 1898)].
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1. Subs. by Act 68 of 1984, sec. 7 (w.e.f. 24-9-1984).
Section 10. Power to require and enforce the making of statements as to names and interests
(1) The Collector may also require any such person to make or deliver to him, at a time and place mentioned (such time not being earlier than fifteen days after the date of the requisition), a statement containing, so far as may be practicable, the name of every other person possessing any interest in the land or any part thereof as co-proprietor, mortgagee, tenant or otherwise, and of the nature of such interest, and of the rents and profits (if any) received or receivable on account thereof for three years next preceding the date of the statement.
(2) Every person required to make or deliver a statement under this section or Section 9 shall be deemed to be legally bound to do so within the meaning of Sections 175 and 176 of the Indian Penal Code.
Enquiry into measurements, value, claims, and award by the Collector.
Section 11. Enquiry and award by Collector
1[(1)] On the day so fixed, or any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8, and into the value of the land and at the date of the publication of the notification under Section 4, subsection (1), and into the respective interests of the persons claiming the compensation, and shall make an award under his hand of-
(i) The true area of the land;
(ii) The compensation which in his opinion should be allowed for the land; and
(iii) The apportionment of the said compensation among all the persons known or believed to he interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him:
2[Provided that no award shall be made by the Collector under this subsection without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf:
Provided further that it shall be competent for the Appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the Appropriate Government may specify in this behalf];
3[(2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement.
(3) The determination of compensation for any land under sub-section (2) shall not in anyway affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act.
(4) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908) no agreement made under subsection (2) shall be liable to registration under that Act.]
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1. Section 11 re-numbered as sub-section (1) thereof by Act No. 68 of 1984, sec. 8.
2. Ins. by Act No. 68 of 1984, (w.e.f. 24-9-1984).
Section 11A. Period within which an award shall be made
1[11A. Period within which an award shall be made. (1) The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall he made within a period of two years from such commencement.
Explanation
In computing the period of two years referred to in this section the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.).
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1. Ins. by Act No. 68 of 1984, sec. 9 (w.e.f. 24-9-1984).
Section 12. Award of Collector when to be final
(1) Such award shall be filed in die Collector’s office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or riot, of the true area and value of the land, and apportionment of the compensation among the persons interested.
(2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.
Section 13. Adjournment of enquiry
The Collector may, for any cause he thinks fit, from time to time, adjourn the enquiry to a day to be fixed by him.
1[13A. Correction of clerical errors, etc.
(1) The Collector may, at any time but not later than six months from the date of the award, or where he has been required under Section 18 to make a reference to the Court, before the making of such reference, by older, correct any clerical or arithmetical mistakes in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority:
Provided that no correction, which is likely to affect prejudicially any person, shall be made unless such person has been given a reasonable opportunity of making a representation in the matter.
(2) The Collector shall give immediate notice of any correction made in the award to all the persons interested,
(3) Where any excess amount is proved to have been paid to any person as a result of the correction made under sub-section (1), the excess amount so paid shall be liable to be refunded and in the case of any default or refusal to pay, the same may he recovered as all arrear of’ land revenue.]
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1. Ins by Act No. 68 of 1984, sec. 10 (w.e.f. 24-9-1984).
Section 14. Power to summon and enforce attendance of witnesses and production of documents
For the purpose of enquiries under this Act the Collector shall have power to summon and enforce the attendance of witnesses, including tree parties interested or any of them, and to compel the production of documents by the same means, and (so far as may be) in the same mariner as is provided in the case of a Civil Court under the 1[Code of Civil Procedure, 1908 (5 of 1908).]
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1. Subs by Act No. 68 of 1984. sec. 11 (w.e.f. 24-9-1984).
Section 15. Matters to be considered and neglected
In determining the amount of compensation, the Collector shall be guided by the provisions contained in Sections 23 and 24.
Section 15A. Power to call for records, etc
1[15A. Power to call for records, etc. The appropriate Government may at any time before the award is made by the Collector under Section 11 call for any record to any proceedings (whether by way of enquiry or otherwise) for the purpose of satisfying itself as to the legality or propriety of any finding or order passed or as to the regularity of such proceedings and may pass such order or issue such direction in relation thereto as it may think fit:
Provided that the appropriate Government shall not pass or issue any order or direction prejudicial to any person without affording such person a reasonable opportunity of being heard.]
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1. Ins by Act No. 68 of 1984., sec.12 (w.e.f. 24-9-1984).
Section 16. Power to take possession
When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.
Section 17. Special powers in cases of urgency
(1) In cases of urgency, whenever the Appropriate Government so directs, the Collector, through no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1), 1[take possession of any land needed for a public purpose] Such land shall thereupon vest absolutely in the Government, free from all encumbrances.
(2) Whenever owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, 2[or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity,] the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances.
Provided that the Collector shall not take possession on any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours’ notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such bundling without unnecessary inconvenience.
(3) In every case under either of the proceeding subsections the Collector shall at the time of taking possession offer to the persons interested, compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in Section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage, shall be allowed for in awarding compensation for the land under the provisions herein contained,
2[(3A) Before taking possession of any land under subsection (1) or subsection (2), the Collector shall, without prejudice to the provisions of sub-section (3), -
(a) Tender payment of eight per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and
(b) Pay it to them, unless prevented by some one or more of the contingencies mentioned in Section 31, sub-section (2), and where the Collector is so prevented, the provisions of Section 31, subsection (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section.
(3-B) The amount paid or deposited under sub-section (3A), shall be taken into account for determining the amount of compensation required to he tendered under Section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under Section II, the excess may, unless refunded within three months from the date of the Collector’s award, be recovered as an arrear of land revenue.]
(4) In the cases of any land to which, in the opinion of the appropriate Government, the provisions of subsection (1), or subsection (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time 1[after the date of the publication of the notification] under Section 4 subsection (1)
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1. Subs. by Act No. 68 of 1984, (w.e.f. 24-9-1984).
2. Ins. by Act No.68 of 1984 (w.e.f. 24-9-1984).
Section 18. Reference to Court
(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken:
(a) If the person making it was present or represented before the Collector at die time when he made his award, within six weeks from the date of the Collector’s award;
(b) In other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2); or within six months from the date of the Collector’s award, whichever period shall first expire.
Section 19. Collector’s statement to the Court
(1) In making the reference, the Collector shall state, for the information of the Court, in writing under his hand-
(a) The situation and extent of the land, with particulars of any trees, buildings or standing crops thereon;
(b) The names of the persons whom he has reasons to think interested in such land;
(c) The amount awarded for damages and paid or tendered under Sections 5 and 17, or either of them, and the amount of compensation awarded under Section 11; 1[* * *]
2[(cc) The amount paid or deposited under subsection (3A) of Section 17; and]
(d) If the objection be to the amount of the compensation, the grounds on which the amount of compensation was determined.
(2) To the said statement, shall be attached a Schedule giving the particulars of the notices served upon, and of the statements in writing made or delivered by the parties interested, respectively.
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1. The word “and” omitted by Act No. 68 of 1984, (w.e.f. 24-9-1984). Sec. 14
2. Ins. by Act No. 68 of 1984, sec. 14 (w.e.f. 24-9-1984.
Section 20. Service of notice
The Court shall thereupon cause a notice, specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following person, namely, -
(a) The applicant;
(b) All persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and
(c) In the objection is in regard to the area of the land or to the amount of compensation, the Collector.
Section 21. Restriction on scope of proceedings
The scope of the inquiry in every such proceeding shall be restricted to a consideration of the interests of the persons affected by the objection.
Section 22. Proceedings to be in open Court
Every such proceeding shall take place in open court, and all persons entitled to practice in any Civil Court in the State shall he entitled to appear, plead and act (as the case may be) in such proceeding.
Section 23. Matters to be considered in determining compensation
(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-
First, the market value of the land at the date of the publication of the notification under Section 4, sub-section (1);
Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector’s taking possession thereof,
Thirdly, the damage (if any), sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of severing such land from his other land;
Fourthly, the damage (if any), sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;
Fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and
Sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector’s taking possession of the land.
1[(1A) In addition to the market value of the land above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum of such market-value for the period commencing on and from the date of the publication of the notification under Section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
Explanation
In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were help up on account of any stay or injunction by the order of any court shall be excluded.]
(2) In addition to the market value of the land, as above provided, the court shall in every case award a sum of 2[thirty per centum] on such market value, in consideration of the compulsory nature of the acquisition.
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1. Ins by Act No. 68 of 1984, sec. 15 (w.e.f. 24-9-1984), regarding its application to proceedings pending on or after 30. 4.1982.
2. Subs. by Act No. 68 (w.e.f. 24-9-1984).
Section 24. Matters to be neglected in determining compensation
But the court shall not take into consideration-
First, the degree of urgency, which has led to the acquisition;
Secondly, any disinclination of the person interested to part with the land acquired;
Thirdly, any damage sustained by him, which, if caused by a private person, would not tender such person liable to a suit;
Fourthly, any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration under Section 6, by or in consequence of- the use to which it will be put;
Fifthly, any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired;
Sixthly, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put;
Seventhly, any outlay or improvements on, or disposal of, the land acquired, commenced, made or effected without the sanctified of the Collector after the date of the publication of the notification under Section 4, sub-section (1); or]
1[Eighthly, any increase to the value of the land on account of its being Hart to ally use which is forbidden by land or opposed to public policy.)
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1. Ins. by Act No. 68 of 1984, sec. 16 (w.e.f. 24-9-1984).
Section 25. Amount of compensation awarded by Court not to be lower than the amount awarded by the Collector
1[25. Amount of compensation awarded by court not to be lower than the amount awarded by the Collector.
The amount of compensation awarded by the court shall not be less than the amount awarded by the Collector under Section 11.]
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1. Sub by Act No. 68 of 1984 sec. 17 (w.e.f. 24-9-1984).
Section 26. Form of awards
(1) Every award under this Part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of subsection (1) of Section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same subsection, together with the grounds of awarding each of the said amounts.
(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, clause (2) and Section 2, clause (9), respectively, of the Code of Civil Procedure, 1908.
Section 27. Costs
(1) Every such award shall also state the amount of costs incurred in the proceedings, under this Part, and by what persons and in what proportions they are to be paid.
(2) When the award of the Collector is not upheld, the costs shall ordinarily be paid by the Collector, unless the Court shall be of opinion that the claim of the applicant was so extravagant or that he was so negligent in putting his case before the Collector that some deduction from his costs should be made or that he should pay a part of the Collector’s costs.
Section 28. Collector may be directed to pay interest on excess compensation
1[28. Collector may be directed to pay interest on excess compensation. If the sum which, in the opinion of the court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of 1[nine per centum] per annum from the date on which he took possession of the land to the date of payment of such excess into court.
2[Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of’ one year from die date on which possession is taken, interest at the rate of’ fifteen per centum per Minimal, shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.
——————–
1. See act 68, sec. 30 (20, regarding its application to certain awards made and orders passed after 30.4.1982.
2. Ins by Act No. 68 of 1984 sec.18 (w.e.f. 24-9-1984).
Section 28A. Re-determination of the amount of compensation on the basis of the award of the Court
1[28A. Re-determination of the amount of compensation on the basis of the award of the Court. (1) Where in an award under this Part, the Court allows to die applicant any amount of compensation in excess of the amount awarded by the collector under Section 11, the persons interested in all die other land covered by the Sallie notification under Section 4 subsection (1) and who are also aggrieved by the award of the Collector within three months from the date of the application to the Collector require that the amount of compensation payable to deep may be re-determined on the basis of the amount of compensation awarded by the Court:
Provided that in computing the period of three months within which an application to the Collector shall be made under this sub section, the day on which the award was pronounced and the ‘lime requisite for obtaining a copy of the award shall be excluded.
(2) The Collector shall, on receipt of an application under sub section (1), inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants.
(3) Any person who has not accepted the award under subsection (2) may, by written application to the Collector, require that the matter be referred by the Collector for die determination of the Court and the provisions of Sections 18 to 28 shall, so fir as may be, apply to such reference as they apply to reference under Section 18.]
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1. Ins by Act No. 68 of 1984 sec.19 (w.e.f. 24-9-1984).
Section 29. Particulars of apportionment to be specified
Where there are several persons interested, if such persons agree in the apportionment of the compensation, the Particulars of such apportionment shall be specified in the award, and as between such persons the award shall he conclusive evidence of the correctness of the apportionment.
Section 30. Dispute as to apportionment
When the amount of compensation has beer) settled under Section 11, it any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the court.
Section 31. Payment of compensation or deposit of same in Court
(1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.
(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the court to which a reference under Section 18 would be submitted:
Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount:
Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18:
Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.
(3) Notwithstanding anything in this section, the Collector may, with the sanction of appropriate Government instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interest of the parties concerned.
(4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract1 in respect thereof.
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1. As to who are competent to contract, see section 11 of the Indian Contract Act, 1872 (9 of 1872).
Section 32. Investment of money deposited in respect of lands belonging to persons incompetent to alienate
(1) If any money shall be deposited in Court under sub-section (2) of the last preceding section and it appears that the land in respect whereof the same was awarded belonged to any person who had no power to alienate the same, the Court shall-
(a) Order the money to be invested in the purchase of other lands to be held under the like title and conditions of ownership as the land in respect of which such money shall have been deposited, was held, or
(b) If such purchase cannot be effected forthwith, then in such Government or other approved securities as the Court shall think fit;
And shall direct the payment of the interest or other proceedings arising from such investment to the person or persons who would for the time being have been entitled to the possession of the said land, and such moneys shall remain so deposited and invested until the same be applied, -
(i) In the purchase of such other lands its aforesaid; or
(ii) In payment to any person or persons becoming absolutely entitled thereto.
(2) In all cases of moneys deposited to which this section applies, the Court shall order the costs of the following matters, including therein all reasonable charges and expenses incidental thereto, to be paid by the Collector, namely. -
(a) The costs of such investments as aforesaid;
(b) The costs of the orders for the payment of the interest or other proceeds, of the securities upon which such moneys are for the time being invested, and for the payment out of Court of the principal of such moneys, and of all proceedings relating thereto, except such as may be occasioned by litigation between adverse claimants.
Section 33. Investment of money deposited in other cases
When any money shall have been deposited in Court under this Act for any cause other than that mentioned in the last preceding section, the Court may, on the application of any party interested of claiming an interest in such money, order the same to be invested in such Government or other approved securities as it may think proper, and may direct the interest or other proceeds of any such investment to be accumulated and paid in such manner as it may consider will give the parties interested therein the same benefit therefrom as they might have had from the land in respect whereof such money shall have been deposited or as near thereto as may be.
Section 34. Payment of interest
When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of 1[nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited.
2[Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry”.]
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1. See Act No. 68 of 1984, sec. 30 (3)regarding it’s application to certain cases of possession of acquired land before, on or after 30-4-982.
2. Ins by Act No. 68 of 1984, sec. 20 (w.e.f 24-9- 1984).
Section 35. Temporary occupation of waste or arable land, procedure when difference as to compensation exists
(1) Subject to the provisions of Part VII of this Act, whenever it appears to the appropriate Government that the temporary occupation and use of any waste or arable land are needed for any public purpose, or for a company, the appropriate Government may direct the Collector to procure the occupation and use of the same for such terms as it shall think fit, not exceeding three years from commencement of such occupation.
(2) The Collector shall thereupon give notice in writing to the persons interested in such land of the purpose for which the same is needed, and shall, for the occupation and use thereof, for such term as aforesaid, and for the materials (if any) to he taken therefrom, pay to them such compensation, either in a gross sum of money, or by monthly or other periodical payments, as shall be agreed upon in writing between him and such persons respectively.
(3) In case the Collector and the persons interested differ as to the sufficiency of the compensation or apportionment thereof, the Collector shall refer such difference to the decision of the Court.
Section 36. Power to enter and take possession, and compensation on restorations
(1) On payment of such compensation, or on executing such agreement, or on making a reference under section 35, the Collector may enter upon and take possession of the land, and use or permit the use thereof in accordance with the terms of the said notice.
(2) On the expiration of the term, the Collector shall make or tender to the persons interested compensation for the damage (if any) done to the land and not provided for by the agreement, and shall restore the land to the persons interested therein:
Provided that, if the land has become permanently unfit to be used for the purpose for which it was used immediately before the commencement of such term, and if the persons interested shall so require, appropriate Government shall proceed under this Act to acquire the and as if it was needed permanently for a public purpose or for a company.
Section 37. Difference as to condition of land
In case the Collector and persons interested differ as to the condition of the land at the expiration of the term, or as to any matter connected with the said agreement, the Collector shall refer such difference to, the decision of the Court.
Section 38. Section
1[* * *]
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1. Omitted by Act No. 68 of 1984 sec. 21 (w.e.f. 24-9- 1984).
Section 38A. Industrial concern to be deemed Company for certain purposes
An industrial concern, ordinarily employing not less than one hundred workmen owned by an individual or by an association of individuals and not being a company, desiring to acquire land for the erection of dwelling-houses for workmen employed by the concern or for the provision of amenities directly connected therewith shall, so far as concerns the acquisition of such land, be deemed to be a company for the purposes of this Part, and the references to company in 1[Sections 4, 5A, 6, 7, and 50] shall be interpreted as references also to such concern.
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1. Subs by Act No. 68 of 1984 sec. 22 for “sections 5A, 6,7,17 and 50”.
Section 39. Previous consent of appropriate Government and execution of agreement necessary
The provisions of Sections 6 to 10 (both inclusive) and Sections 18 to 37 (both inclusive) shall not be put in force in order to acquire land for any company, 1[under this part] unless with the previous consent of the appropriate Government, nor unless the company shall have executed the agreement hereinafter mentioned.
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1. Ins by Act No. 68 of 1984 sec. 23 (w.e.f. 24-9-1984).
Section 40. Previous enquiry
(1) Such consent shall not be given unless the appropriate Government be satisfied, either on the report of the Collector under Section 5A, subsection (2), or by an enquiry held as hereinafter provided, -
(a) That the purpose of the acquisition is to obtain land for the erection of dwelling-houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or
(aa) That such acquisition is needed for the construction of some building or work for a company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, or
(b) That such acquisition is needed for the construction of some work and that such work is likely to prove useful to the public.
(2) Such enquiry shall be held by such officer and at such time and place, as the appropriate Government shall appoint.
(3) Such officer may summon and enforce the attendance of witnesses and compel the production of documents by the same means and, as far as possible, in the same manner as is provided by the 1[Code of Civil Procedure, 1908] (5 of 1908) in the case of Civil Court.
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1. Subs by Act No. 68 of 1984 sec. 24 (w.e.f. 24-9-1984).
Section 41. Agreement with appropriate Government
If the appropriate Government is satisfied after considering the report, if any, of the Collector under Section 5A, sub-section (2), or on the report of the officer making an inquiry under Section 40 that the proposed acquisition is for any of the purposes referred to in clause (a) or clause (aa) or clause (b) of sub-section (1) of Section 40, it shall require the company to enter into an agreement with the appropriate Government, providing to the satisfaction of the appropriate Government for the following matters, namely,-
(1) The payment to the appropriate Government of the cost of the acquisition;
(2) The transfer, on such payment, of the land to the company;
(3) The term on which the company shall hold the land;
(4) Where the acquisition is for the purpose of erecting dwelling-houses or the provision of amenities connected therewith, the time within which, the conditions on which and the manner in which the dwelling-houses or amenities shall be erected or provided;
(4A) Where the acquisition is for the construction of any building or work for it company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, the time within which and the conditions on which the building or work shall be constructed or executed; and
(5) Where the acquisition is for the construction of any other work the time within which and the conditions on which the work shall be executed and maintained and the terms on which the public shall be entitled to use the work.
Section 42. Publication of agreement
Every such agreement shall, is soon as may be after its execution, be published in the Official Gazette, and thereupon (so far as regards the terms on which the public shall be entitled to use the work) have the same effect its it’ it had formed part of this Act.
Section 43. Sections 39 to 42 not to apply where Government bound by agreement to provide land for Companies
The provisions of Sections 39 to 42, both inclusive, shall not apply and the corresponding sections of the Land Acquisition Act, 1870 (10 of 1870), shall be deemed never to have applied, to the acquisition of land of any Railway or other Company, for the purposes of which, under any agreement with such Company, the Secretary of State for India in Council, the Secretary of State, Central Government or any State Government is or was bound to provide land.
Section 44. How agreement with railway Company may be proved
In the case of the acquisition of land for the purposes of a railway company, the existence or such all agreement as is mentioned in Section 43 may be proved by the production of a printed copy thereof purporting to be printed by order of Government.
Section 44A. Restriction on transfer, etc
No company for which any land is acquired under this Part shall be entitled to transfer the said land or any part thereof by sale, mortgage, gift, lease or otherwise except with the previous sanction of the appropriate Government.
Section 44B. Land not to be acquired under this part except for certain purpose for private companies other than Government companies
Notwithstanding anything contained in the Act, no land shall be acquired under this Part, except for the purpose mentioned in clause (a) of sub-section (1) of Section 40, for a private company, which is not a Government company.
Explanation
”Private company” and “Government Company” shall have the meanings respectively assigned to them in the Companies Act, 1956 (1 of 1956).
Section 45. Service of notices
(1) Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed in the case of a notice under Section 4, by the officer therein mentioned, and in the case of’ any other notice, by an order of the Collector or the Judge.
(2) Whenever it may be practicable, the service of the notice shall be made on the person therein named.
(3) When such person cannot be found, the service may be made on any member of his family residing with him; and if no such adult male member can be found the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the court-house, and also in some conspicuous part of the land to he acquired:
Provided that if the Collector or Judge shall so direct, a notice may be sent by post, in a letter addressed to the person named therein at his last known residence, address or place of business and 1[registered under Sections 28 and 29 of the Indian Post Office Act, 1898 (6 of 1898)] and service of it may be proved by the production of, the addressee’s receipt.
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1. Sub by Act No. 68 of 1984 sec. 25, for “registered under Part III of the Indian Posssst Ofice Act, 1866.
Section 46. Penalty for/obstructing acquisition of land
Whoever wilfully obstructs any person in doing any of the acts authorised by Section 4 or Section 8 or wilfully fills up, destroys, damages or displaces any trench or mark made under section 4, shall, on conviction before a Magistrate, be liable to imprisonment for any term not exceeding one month, or to fine not exceeding 1[five hundred rupees], or to both.
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1. Subs by Act No.68 of l984 sec. 26 for “fifty rupees” (w.e.f.24-9-1984).
Section 47. Magistrate to enforce surrender
If the Collector is opposed or impeded in taking possession under this Act of any land, he shall, if it Magistrate, enforce the surrender of the land to himself, and, if not a Magistrate, he shall apply to a Magistrate or (within the towns of Calcutta, Madras and Bombay) to the Commissioner of Police and Such Magistrate or the Commissioner (as the case may be) shall enforce the surrender of the land to the Collector.
Section 48. Completion of acquisition not compulsory, but compensation to be awarded when not completed
(1) Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.
(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.
Section 49. Acquisition of part of house or building
(1) The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory or building shall be so acquired:
Provided that the owner may, at any time before the Collector has made his award under Section 11, by notice in writing, withdraw or modify, his expressed desire that the whole of such house, manufactory or building shall be so acquired.
Provided also that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the meaning of this section, the Collector shall refer the determination of such question to the Court and shall not take possession of such land until, after the question has been determined.
In deciding on such a reference the Court shall have regard to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufactory or building.
(2) If, in the case of any claim under Section 23, sub-section (1), thirdly, by a person interested, on account of the serving of the land to be acquired from his other land, the appropriate Government is of opinion that the claim is unreasonable or excessive, it may at any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part.
(3) In the case last here-in-before provided for, no fresh declaration or other proceedings under Sections 6 to 10, both inclusive, shall be necessary but the Collector shall without delay furnish a copy of the order of the appropriate Government to the person interested, and shall thereafter proceed to make his award under section 11.
Section 50. Acquisition of land at cost of a local authority or Company
(1) Where the provisions of this Act are put in force for the purpose of acquiring land at the cost of any fund controlled or managed by a local authority or of any company, the charges of any incidental to such acquisition shall be defrayed from or by such fund or company.
(2) In any proceeding held before a Collector or Court in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation:
Provided that no such local authority or Company shall be entitled to demand a reference under Section 18.
Section 51. Exemption from stamp duty and fees
No award or agreement made under this Act shall be chargeable with stamp duty, and no person claiming under any such award or agreement shall be liable to pay any fee for a copy of’ the same.
Section 51A. Acceptance of certified copy as evidence
1[51A. Acceptance of certified copy as evidence. In any proceeding under this Act, a certified copy of a document registered under the Registration Act, 1908 (16 of 1908), including a copy given under Section 57 of that Act, may he accepted as evidence of the transaction recorded in such document.]
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1. Ins. by Act No. 68 of 1984, sec. 27 (w.e.f. 24-9- 1984).
Section 52. Notice in case of suits for anything done in pursuance of Act
No suit or other proceeding shall be commenced or prosecuted against any person for anything done in pursuance of this Act, without giving to such person a month’s previous notice in writing of the intended proceeding, and of the cause thereof, nor after tender of sufficient amends.
Section 53. Code of Civil Procedure to apply to proceedings before Court
Save in so far as they may be inconsistent with anything contained in this Act, the provision of the 1[Code of Civil Procedure, 19081 (5 of 1908) shall apply to all proceedings before the Court under this Act.
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1. Subs by Act No. 68 of 1984, sec. 28 (w.e.f. 24-9-1984).
Section 54. Appeals in proceedings before Court
Subject to the provisions of’ the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding, anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court front the award or from any part of the award of’ the Court and from any decree of’ the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908, and in Order XLIV thereof.
Section 55. Power to make rules
(1) The appropriate Government shall have power to make rules consistent with the Act for the guidance of officer in all matters connected with its enforcement, and may from time to time alter and add to the rules so made:
Provided that the power to make rules for carrying out the purposes of Part VII of this Act shall be exercisable by the Central Government and such rules may be made for the guidance of the State Governments and the officers of the Central Government and of the State Governments:
Provided further that every such rule made by the Central Government shall be laid as soon as may be after it is made, before each Houses of Parliament while it is in session for a total period of thirty days which may be comprised in one session or two or more successive sessions, and if, 1[before the expiry of the session, in which it is so laid or the successive sessions aforesaid, both house agree in making any modification in 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[Provided also that every such rule made by the State Government shall be laid, as soon as may be after it is made, before the State Legislature.]
(2) The power to make, alter and add to rules under subsection (1) shall be subject to the condition of the rules being made, altered or added to after previous publication.
(3) All such rules, alterations and additions shall be published in the Official Gazette, and shall thereupon have the force of law.
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1. Subs by Act No. 68 of 1984 sec. 29 (w.e.f. 24-9-1984).
November 30, 2014
Section 1 Short title and extent
(1) This Act may be called the Essential Commodities Act, 1955.
(2) It extends to the whole of India 1[***].
Section 2 DEFINITIONS.
In this Act, unless the context otherwise requires, -
2[***]
2[3[(ia) “Collector” includes an Additional Collector and such other officer, not below the rank of Sub-Divisional Officer, as may be authorised by the Collector to perform the functions and exercise the powers of the Collector under this Act;]]
4[***]
(b) “food-crops” include crops of sugarcane;
(c) “notified order” means an order notified in the Official Gazette;
5[(cc) “order” includes a direction issued thereunder;]
6[(d) “State Government,” in relation to a Union territory, means the administrator thereof;]
7[(e) “sugar” means—
(i) any form of sugar containing more than ninety per cent., of sucrose, including sugar candy;
(ii) khandsari sugar or bura sugar or crushed sugar or any sugar in crystalline or powdered form; or
(iii) sugar in process in vacuum pan sugar factory or raw sugar produced therein.]
8[***]
STATE AMENDEMNTS
Himachal Pradesh. —In section 2, in clause (a), after sub-clause (vi), insert the following sub-clause, namely:—
“(via) packing cases made wholly or partly of wood, card-board or straw;”
[ Vide Himachal Pradesh Act 1 of 1992, sec. 2 (w.e.f. 29-2-1992).]
Maharashtra. —In section 2,—
(a) after the words “the context otherwise requires,” and before clause (a), insert the following clause, namely:—
“(ai) ‘Collector’ in Greater Bombay means the Controller of Rationing and includes any Deputy or Assistant Controller of Rationing, and elsewhere means the Collector of the District and includes any Assistant or Deputy Collector or District Supply Officer within his respective jurisdiction;”
(b) after clause (b), insert the following clauses, namely:—
“(ba) ‘holder’, in relation to any agricultural land, means the person in actual possession of such land, and includes a company or other body corporate, firm, association, joint family or body of individuals in joint possession of such land;
(bb) ‘holding’ means the aggregate of all lands in possession of a holder;”
[ Vide Maharashtra Act 1 of 1976, sec. 2 (w.r.e.f. 12-11-1975).]
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1. Extended to Goa, Daman and Diu with modifications by Regulation 12 of 1962, sec. 3 and Sch., to Dadra and Nagar Haweli by Regulation 6 of 1963, sec. 2 and Sch. I and to Lakshadweep and Amindivi Islands by Regulation 8 of 1965, sec. 3 and Sch., to the State of Sikkim (w.e.f. 7-1-1976), vide S.O. 28(E), dated 7th January, 1976.
This Act has been amended in Maharashtra by Maharashtra Act 71 of 1976, in Orissa by Orissa Act 8 of 1976, in Uttar Pradesh by Uttar Pradesh Acts 9 of 1974, 18 of 1975, 39 of 1975 and 16 of 1978.
2. Clause (ia) renumbered as clause (iia) and before clause (iia) so renumbered clause (ia) inserted by Act 18 of 1981, sec. 3(a) as amended by Act 34 of 1993, sec. 3 for a period of fifteen years which now stands ceased to have effect after the expiry of fifteen years. See Appendix—Section 3(a) of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
3. Ins. by Act 92 of 1976, sec. 2 (w.e.f. 2-9-1976).
4. Clause (a) omitted by Act 54 of 2006, sec. 2 (w.e.f. 12-2-2007). Earlier clause (a) was amended by Act 30 of 1974, sec. 2 (w.r.e.f. 22-6-1974). Clause (a), before omission by Act 54 of 2006, stood as under:
‘(a) “essential commodity” means any of the following classes of commodities:—
(i) cattle fodder, including oilcakes and other concentrates;
(ii) coal including coke and other derivatives;
(iii) component parts and accessories of automobiles;
(iv) cotton and woollen textiles;’.
(iva) drugs.
Explanation.— In this sub-clause, “drug” has the meaning assigned to it in clause (b) of section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940);
(v) foodstuffs, including edible oilseeds and oils;
(vi) iron and steel, including manufactured products of iron and steel;
(vii) paper, including newsprint, paperboard and straw board;
(viii) petroleum and petroleum products;
(ix) raw cotton, whether ginned or unginned, and cotton seed;
(x) raw jute;
(xi) any other class of commodity which the Central Government may, by notified order, declare to be an essential commodity for the purposes of this Act, being a commodity with respect to which Parliament has power to make laws by virtue of entry 33 in List III in the Seventh Schedule to the Constitution;
5. Ins. by Act 36 of 1967, sec. 2(a) (w.e.f. 30-12-1967).
6. Subs. by the A.O. (No. 3) Order, 1956, for clause (d).
7. Ins. by Act 36 of 1967, sec. 2(b) (w.e.f. 30-12-1967).
8. Clause (f) ins. by Act 18 of 1981, sec. 3(b) as amended by Act 34 of 1993, sec. 3 for a period of fifteen years, which now stands ceased to have effect after the expiry of fifteen years. See Appendix —Section 3(b) of the Essential Commodities (Special Provisions) Act, 1981.
Section 2A. Essential commodities declaration, etc.
1[2A. Essential commodities declaration, etc.—(1) For the purposes of this Act, “essential commodity” means a commodity specified in the Schedule.
(2) Subject to the provisions of sub-section (4), the Central Government may, if it is satisfied that it is necessary so to do in the public interest and for reasons to be specified in the notification published in the Official Gazette, amend the Schedule so as to—
(a) add a commodity to the said Schedule;
(b) remove any commodity from the said Schedule,in consultation with the State Governments.
(3) Any notification issued under sub-section (2) may also direct that an entry shall be made against such commodity in the said Schedule declaring that such commodity shall be deemed to be an essential commodity for such period not exceeding six months to be specified in the notification:]
Provided that the Central Government may, in the public interest and for reasons to be specified, by notification in the Official Gazette, extend such period beyond the said six months.]
(4) The Central Government may exercise its powers under sub-section (2) in respect of the commodity to which Parliament has power to make laws by virtue of Entry 33 in List III in the Seventh Schedule to the Constitution.
(5) Every notification issued under sub-section (2) shall be laid, as soon as may be after it is issued, before both Houses of Parliament.]
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1. Ins. by Act 54 of 2006, sec. 3.
Section 3 POWERS TO CONTROL PRODUCTION, SUPPLY, DISTRIBUTION, ETC. OF ESSENTIAL COMMODITIES.
(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, 2[or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide—
(a) for regulating by licences, permits or otherwise the production or manufacture of any essential commodity;
(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food-crops generally or of specified food-crops, and for otherwise maintaining or increasing the cultivation of food-crops generally, or of specified food-crops;
(c) for controlling the price at which essential commodity may be bought or sold;
(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity;
(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;
3[(f) for requiring any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity,—
(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or
(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him,to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order.
Explanation 1 .—An order made under this clause in relation to food-grains, edible oilseeds or edible oils, may, having regard to the estimated production, in the concerned area, of such foodgrains, edible oilseeds and edible oils, fix the quantity to be sold by the producers in such area and may also fix, or provide for the fixation of, such quantity on a graded basis, having regard to the aggregate of the area held by, or under the cultivation of, the producers.
Explanation 2. —For the purposes of this clause, “production” with its grammatical variations and cognate expressions includes manufacture of edible oils and sugar;]
(g) for regulating or prohibiting any class of commercial or financial transactions relating to foodstuffs 4[***] which, in the opinion of the authority making the order, are, or, if unregulated, are likely to be, detrimental to the public interest;
(h) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters;
(i) for requiring persons engaged in the production, supply or distribution of or trade and commerce in, any essential commodity to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the order;
5[(ii) for the grant or issue of licences, permits or other documents, the charging of fees therefor, the deposit of such sum, if any, as may be specified in the order as security for the due performance of the conditions of any such licence, permit or other document, the forfeiture of the sum so deposited or any part thereof for contravention of any such conditions, and the adjudication of such forfeiture by such authority as may be specified in the order;]
6[(j) for any incidental and supplementary matters, including, in particular, the entry, search or examination of premises, aircraft, vessels, vehicles or other conveyances and animals, and the seizure by a person authorised to make such entry, search or examination,—
(i) of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being, or is about to be, committed and any packages, coverings or receptacles in which such articles are found;
(ii) of any aircraft, vessel, vehicle or other conveyance or animal used in carrying such articles, if such person has reason to believe that such aircraft, vessel, vehicle or other conveyance or animal is liable to be forfeited under the provisions of this Act;
7[(iii) of any books of accounts and documents which in the opinion of such person, may be useful for, or relevant to, any proceeding under this Act and the person from whose custody such books of accounts or documents are seized shall be entitled to make copies thereof or to take extracts therefrom in the presence of an officer having the custody of such books of accounts or documents.]]
(3) Where any person sells any essential commodity in compliance with an order made with reference to clause (f) of sub-section (2), there shall be paid to him the price therefor as hereinafter provided—
(a) where the price can, consistently with the controlled price, if any, fixed under this section, be agreed upon, the agreed price;
(b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any;
(c) where neither clause (a) nor clause (b) applies, the price calculated at the market rate prevailing in the locality at the date of sale.
8[(3A) (i) If the Central Government is of opinion that it is necessary so to do for controlling the rise in prices, or preventing the hoarding, of any food-stuff in any locality, it may, by notification in the Official Gazette, direct that notwithstanding anything contained in sub-section (3), the price at which the food-stuff shall be sold in the locality in compliance with an order made with reference to clause (f) of sub-section (2) shall be regulated in accordance with the provisions of this sub-section.
(ii) Any notification issued under this sub-section shall remain in force for such period not exceeding three months as may be specified in the notification.
(iii) Where, after the issue of a notification under this sub-section, any person sells foodstuff of the kind specified therein and in the locality so specified, in compliance with an order made with reference to clause (f) of sub-section (2), there shall be paid to the seller as the price therefor—
(a) where the price can, consistently with the controlled price of the foodstuff, if any, fixed under this section, be agreed upon, the agreed price;
(b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any;
(c) where neither clause (a) nor clause (b) applies, the price calculated with reference to average market rate prevailing in the locality during the period of three months immediately preceding the date of the notification.
(iv) For the purposes of sub-clause (c) of clause (iii), the average market rate prevailing in the locality shall be determined by an officer authorised by the Central Government in this behalf, with reference to the prevailing market rates for which published figures are available in respect of that locality or of a neighbouring locality; and the average market rate so determined shall be final and shall not be called in question in any court.]
9[(3B) Where any person is required, by an order made with reference to clause (f) of sub-section (2), to sell to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government, any grade or variety of foodgrains, edible oilseeds or edible oils in relation to which no notification has been issued under sub-section (3A), or such notification having been issued, has ceased to be in force, there shall be paid to the person concerned, notwithstanding anything to the contrary contained in sub-section (3), an amount equal to the procurement price of such foodgrains, edible oilseeds or edible oils, as the case may be, specified by the State Government, with the previous approval of the Central Government having regard to—
(a) the controlled price, if any, fixed under this section or by or under any other law for the time being in force for such grade or variety of foodgrains, edible oilseeds or edible oils;
(b) the general crop prospects;
(c) the need for making such grade or variety of foodgrains, edible oilseeds or edible oils available at reasonable prices to the consumers, particularly the vulnerable sections of the consumers; and
(d) the recommendations, if any, of the Agricultural Prices Commission with regard to the price of the concerned grade or variety of foodgrains, edible oilseeds or edible oils.]
10[(3C) Where any producer is required by an order made with reference to clause (f) of sub-section (2) to sell any kind of sugar (whether to the Central Government or a State Government or to an officer or agent of such Government or to any other person or class of persons) and either no notification in respect of such sugar has been issued under sub-section (3A) or any such notification, having been issued, has ceased to remain in force by efflux of time, then, notwithstanding anything contained in sub-section (3), there shall be paid to that producer an amount therefor which shall be calculated with reference to such price of sugar as the Central Government may, by order, determine, having regard to—
(a) the minimum price, if any, fixed for sugarcane by the Central Government under this section;
(b) the manufacturing cost of sugar;
(c) the duty or tax, if any, paid or payable thereon; and
(d) the securing of a reasonable return on the capital employed in the business of manufacturing sugar,
and different prices may be determined from time to time for different areas or for different factories or for different kinds of sugar.
Explanation. —For the purposes of this sub-section, “producer” means a person carrying on the business of manufacturing sugar.]
11[(3D) The Central Government may direct that no producer, importer or exporter shall sell or otherwise dispose of or deliver any kind of sugar or remove any kind of sugar from the bonded godowns of the factory in which it is produced, whether such godowns are situated within the premises of the factory or outside or from the warehouses of the importers or exporters, as the case may be, except under and in accordance with the direction issued by the Government:
provided that this sub-section shall not affect the pledging of such sugar by any producer or importer in favour of any scheduled bank as defined in clause (e) of section 2 of the Reserve Bank of India Act, 1934 (2 of 1934) or any corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), so, however, that no such bank shall sell the sugar pledged to it except under and in accordance with a direction issued by the Central Government.
(3E) The Central Government may, from time to time, by general or special order, direct any producer or importer or exporter or recognised dealer or any class of producers or recognised dealers, to take action regarding production, maintenance of stocks, storage, sale, grading, packing, marking, weighment, disposal, delivery and distribution of any kind of sugar in the manner specified in the direction.
Explanation. —For the purposes of sub-section (3D) and this sub-section,—
(a) “producer” means a person carrying on the business of manufacturing sugar;
(b) “recognised dealer” means a person carrying on the business of purchasing, selling or distributing sugar;
(c) “sugar” includes plantation white sugar, raw sugar and refined sugar, whether indigenously produced or imported.]
(4) If the Central Government is of opinion that it is necessary so to do for maintaining or increasing the production and supply of an essential commodity, it may, by order, authorise any person (hereinafter referred to as an authorized controller) to exercise, with respect to the whole or any part of any such undertaking engaged in the production and supply of the commodity as may be specified in the order such functions of control as may be provided therein and so long as such order is in force with respect to any undertaking or part thereof,—
(a) the authorized controller shall exercise his functions in accordance with any instructions given to him by the Central Government, so, however, that he shall not have any power to give any direction inconsistent with the provisions of any enactment or any instrument determining the functions of the persons in-charge of the management of the undertaking, except in so far as may be specifically provided by the order; and
(b) the undertaking or part shall be carried on in accordance with any directions given by the authorised controller under the provisions of the order, and any person having any functions of management in relation to the undertaking or part shall comply with any such directions.
12[***]
(5) An order made under this section shall,—
(a) in the case of an order of a general nature or affecting a class of persons, be notified in the Official Gazette; and
(b) in the case of an order directed to a specified individual be served on such individual—
(i) by delivering or tendering it to that individual, or
(ii) if it cannot be so delivered or tendered, by affixing it on the outer door or some other conspicuous part of the premises in which that individual lives, and a written report thereof shall be prepared and witnessed by two persons living in the neighbourhood.
(6) Every order made under this section by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made.
STATE AMENDMENTS
Bihar. —In section 3,—
(i) in sub-section (2), for clause (f), substitute the following clause which shall be deemed always to have been substituted, namely:—
“(f) for requiring any person holding in stock, or engaged in the manufacture or production of, or in the business of buying or selling any essential commodity to sell the whole or a specified part of the quantity held in stock or produced or caused to be produced or likely to be manufactured or produced or caused to be produced by him or received or likely to be received by him in the course of the said business, to the Central Government or a State Government or to such other person or class of persons and in such circumstances as may be specified in the order.
Explanation .—An order relating to foodgrains made with reference to this clause,—
(i) may specify the prices, fixed by the Central/State Government in this behalf, after taking into account the recommendations, if any of the Agricultural Prices Commission and with the prior concurrence of the Central Government as the amount which shall be paid for the foodgrain required to be sold under the order,
(ii) may fix or provide for the fixation of the quantity to be sold by a producer with reference to the area under cultivation and the availability of irrigation for production of the particular foodgrain which the order relates, and also fix or provide for the fixation of such quantities on a graded basis having regard to the aggregate area held by or under the cultivation of different producers.”
(ii) in sub-section (3), for clause (c), substitute the following clauses which shall be deemed always to have been substituted, namely:—
“(c) in the case of foodgrains, where neither clause (a) nor clause (b) applies, the price, if any specified in the said order;
(d) where neither clause (a), nor clause (b), nor clause (c) applies, the price calculated at the market rate prevailing in the locality at the date of sale.”
(iii) in sub-section (3B), after clause (a), insert the following clause which shall be deemed always to have been inserted, namely:—
“(aa) in the case of foodgrains, where no controlled price is fixed by an order made with reference to clause (c) of sub-section (2), the amount specified in the said order made with reference to clause (f) of sub-section (2) for such grade or variety of foodgrains; or”
[ Vide Bihar Act 9 of 1978, sec. 3 (w.e.f. 6-9-1978).]
Maharashtra. —In section 3,—
(a) in sub-section (2), for clause (f), substitute the following clause which shall be deemed always to have been substituted, namely:—
“(f) for requiring any person holding in stock, or likely to hold in stock, or engaged in the manufacture or production or processing of, or in the business of buying or selling, any essential commodity, to sell, the whole or a specified part of the quantity of the essential commodity held in stock or likely to be held in stock by him or manufactured or produced or processed or likely to be manufactured or produced or processed by him or received or likely to be received by him in his business of buying or selling to the Central Government or the State Government or to an officer or agent of any Government or to such other person or class of persons and in such circumstances as may be specified in the order.
Explanation. —An order made under this clause in respect of foodgrains may fix or provide for fixation of the quantity to be sold by a producer with reference to the nature and extent of his holding or the land revenue payable by him with certain weightages which may be prescribed for certain crops or lands enjoying irrigation or other facilities and also fix or provide for fixation of the quantity to be sold on a graded basis having regard to the size of the holdings of different producers.”
(b) In sub-section (3), for clause (c), substitute the following clause which shall be deemed always to have been substituted, namely:—
“(c) where neither clause (a) nor clause (b) applies, in the case of foodgrains, the amount, if any, specified in or calculated in accordance with the order made under clause (f) of sub-section (2) read with sub-section (3B), and in the case of any other essential commodity, the price calculated at the market rate prevailing in the locality at the date of sale.”
(c) for sub-section (3B), substitute the following sub-section which shall be deemed always to have been substituted, namely:—
“(3B) where, by an order made with reference to clause (f) of sub-section (2), any person is required to sell any grade or variety or foodgrains, edible oilseeds or edible oils to the Central Government or a State Government or an officer or agent of such Government or a corporation owned or controlled by such Government or to a person or class of persons specified in the order, and either no notification in respect of such foodgrains, edible oilseeds or edible oils has been issued under sub-section (3A) or any such notification having been issued, has ceased to remain in force by efflux of time then, notwithstanding anything contained in sub-section (3), there shall be paid to the person concerned an amount determined by the Central Government or the State Government, as the case may be,—
(a) having regard to the Controlled price, if any, fixed under this section or by or under any law for the time being in force for such grade or variety of foodgrains, edible oilseeds or edible oils, or
(b) having regard to the prices recommended by the Agricultural Prices Commission for the concerned essential commodity, where no controlled price in relation to such commodity, has been fixed by or under any law for the time being in force.”
[ Vide Maharashtra Act 1 of 1976, sec. 3(c) (w.r.e.f. 12-11-1975).]
Orissa. —In section 3,—
(a) in sub-section (2), for clause (f), substitute the following clause which shall be deemed always to have been substituted, namely:—
“(f) for requiring any person holding in stock or engaged in the manufacture or production of, or in the business of buying or selling, any essential commodity to sell the whole or a specified part of the quantity held in stock or manufactured or produced or caused to be produced or likely to be manufactured or produced or caused to be produced by him or received or likely to be received by him in the course of the said business, to the Central Government or a State Government or to an officer or agent of such Government or to such other person or class of persons and in such circumstances as may be specified in the order.
Explanation .—An order relating to foodgrains made with reference to this clause,—
(i) may specify the prices, fixed by the State Government in this behalf, after taking into account the recommendations, if any, of the Agricultural Prices Commission and with the prior concurrence of the Central Government, as the amount which shall be paid for the foodgrain required to be sold under the order,
(ii) may fix or provide for the fixation of the quantity to be sold by a producer with reference to the area under cultivation and the availability of irrigation for production of the particular foodgrain to which the order relates, and also fix or provide for the fixation of such quantities on a graded basis having regard to the aggregate area held by or under the cultivation of different producers.”
(b) in sub-section (3), for clause (c), substitute the following clauses which shall be deemed always to have been substituted, namely:—
“(c) in the case of foodgrains, where neither clause (a) nor clause (b) applies, the price, if any, specified in the said order;
(d) where neither clause (a) nor clause (b), nor clause (c) applies, the price calculated at the market rate prevailing in the locality at the date of sale.”
(c) in sub-section (3B), after clause (i), insert the following clause which shall be deemed always to have been inserted, namely:—
“(ia) in the case of foodgrains, where no controlled price is fixed by an order made with reference to clause (c) of sub-section (2), the amount specified in the said Order made with reference to clause (f) of sub-section (2) for such grade or variety of foodgrains; or”
[ Vide Orissa Act 8 of 1976, sec. 2 (w.e.f. 29-3-1976).]
Uttar Pradesh. —In section 3,—
(i) in sub-section (2), in clause (f), for Explanation 1 , substitute the following Explanation , namely:—
Explanation 1 .—An order made under this clause in relation to rice, having regard to the milling capacity of a rice mill, fix the quantity to be sold by the licensed miller and may also fix or provide for the fixation of such quantity on a graded basis.”
[ Vide Uttar Pradesh Act 16 of 1978, sec. 3 (2).]
(ii) in sub-section (3), for clause (c), substitute the following clauses which shall be deemed always to have been substituted, namely:—
“(c) in the case of foodgrains, where neither clause (a) nor clause (b) applies, the amount, if any, specified in the said order made with reference to clause (f) of sub-section (2);
(d) where neither clause (a), nor clause (b), nor clause (c) applies, the price calculated, at the market rate prevailing in the locality at the date of sale.”
[ Vide Uttar Pradesh Act 18 of 1975, sec. 3 (b).]
(iii) in clause (f) as substituted by the Central Amendment (Act 92 of 1976), after Explanation 1 , insert the following Explanation , namely:—
Explanation 1A .—An order made under this clause in relation to rice may having regard to the milling capacity of a rice mill, fix the quantity to be sold by the licenced miller and may also fix or provide for the fixation of such quantity on a graded basis.”
[ Vide Uttar Pradesh Act 16 of 1978 (w.e.f. 27-4-1978).]
———-
1. Extended to Goa, Daman and Diu with modifications by Regulation 12 of 1962, sec. 3 and Sch., to Dadra and Nagar Haweli by Regulation 6 of 1963, sec. 2 and Sch. I and to Lakshadweep and Amindivi Islands by Regulation 8 of 1965, sec. 3 and Sch., to the State of Sikkim (w.e.f. 7-1-1976), vide S.O. 28(E), dated 7th January, 1976.
This Act has been amended in Maharashtra by Maharashtra Act 71 of 1976, in Orissa by Orissa Act 8 of 1976, in Uttar Pradesh by Uttar Pradesh Acts 9 of 1974, 18 of 1975, 39 of 1975 and 16 of 1978.
2. Ins. by Act 36 of 1967, sec. 3(a) (w.e.f. 30-12-1967).
3. Subs. by Act 92 of 1976, sec. 3(a)(i), for clause (f) (w.e.f. 2-9-1976). Earlier clause (f) was substituted by Act 28 of 1957, sec. 2 (w.e.f. 17-9-1957).
4. The words “or cotton textiles” omitted by Act 54 of 2006, sec. 4 (w.e.f. 12-2-2007).
5. Ins. by Act 17 of 1961, sec. 2(a) (w.e.f. 10-5-1961).
6. Subs. by Act 66 of 1971, sec. 2(i), for clause (j) (w.e.f. 23-12-1971). Earlier clause (j) was amended by Act 17 of 1961, sec. 2(b) (w.e.f. 10-5-1961).
7. Subs. by Act 92 of 1976, sec. 3(a)(ii), for sub-clause (iii) (w.e.f. 2-9-1976).
8. Ins. by Act 13 of 1957, sec. 2 (w.e.f. 4-6-1957).
9. Subs. by Act 92 of 1976, sec. 3(b) (w.e.f. 2-9-1976). Earlier sub-section (3B) was inserted by Act 25 of 1966, sec. 2 (w.e.f. 3-9-1966) and was amended by Act 66 of 1971, sec. 2(ii) (w.e.f. 23-12-1971), by Act 30 of 1974, sec. 3 (w.r.e.f. 22-6-1974).
10. Ins. by Act 36 of 1967, sec. 3(c) (w.e.f. 30-12-1967).
11. Ins. by Act 37 of 2003, sec. 2 (w.r.e.f. 14-6-1999).
12. Sub-sections (4A), (4B) and (4C) as inserted by Act 14 of 1967, sec. 2 (w.e.f. 1-4-1967) ceased to have effect from 31st day of March, 1968, vide Act 14 of 1967, sec. 1(2).
Section 4 IMPOSITION OF DUTIES ON STATE GOVERNMENTS, ETC.
An order made under Sec. 3 may confer powers and impose duties upon the Central Government or the State Government or officers and authorities of the Central Government or State Government, and may contain directions to any State Government or to officers and authorities thereof as to the exercise of any such powers or the discharge of any such
duties.
Section 5 DELEGATION OF POWERS.
The Central Government may, by notified order, direct that 1[the power tomake orders or issue notification under Sec. 3 ] shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by, -
(a) such officer or authority subordinate to the Central Government, or
(b) such State Government or such officer or authority subordinate to State Government; as may be specified in the direction.
—————
1. Subs. by Act 66 of 1971, sec. 3, for “the power to make orders under section 3” (w.e.f. 23-12-1971).
Section 6 EFFECT OF ORDERS INCONSISTENT WITH OTHER ENACTMENTS.
Any other made under Sec. 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act.
Section 6-A CONFISCATION OF ESSENTIAL COMMODITY.
2[6A. Confiscation of essential commodity:- 3[(1)] Where any 4[essential commodity is seized] in pursuance of an order made under section 3 in relation thereto, 5[a report of such seizure shall, without unreasonable delay, be made to] the Collector of the district or the Presidency town in which such 4[essential commodity is seized] and whether or not a prosecution is instituted for the contravention of such order, the Collector 6[may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied] that there has been a contravention of the order 7[may order confiscation of—
(a) the essential commodity so seized;
(b) any package, covering or receptacle in which such essential commodity is found; and
(c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity : 27 ]
Provided that without prejudice to any action which may be taken under any other provision of this Act, no foodgrains or edible oilseeds in pursuance of an order made under Sec.3 in relation thereto from a producer shall, if the seized foodgrains or edible oilseeds have been produced by him, be confiscated under this section :
8Provided further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market
price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance 28 ].
9(2) Where the Collector, on receiving a report of seizure or on inspection of any essential commodity under sub-section (1), is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do, he may,
-
(i) order the same to be sold at the controlled price, if any, fixed for such essential commodity under this Act or under any other law for the time being in force; or
(ii) where no such price is fixed order the same to be sold by public auction :
10 Provided that in the case of any such essential commodity the retail sale price whereof has been fixed by the Central Government or a State Government under this Act or under any other law for the time being in force, the Collector may. for its equitable distribution and availability at fair
prices, order the same to be sold through fair price shops at the price so fixed. 30 ]
(3) Where any essential commodity is sold, as aforesaid, the sale proceeds thereof, after deduction of the expenses of any such sate or auction or other incidental expenses relating thereto, shall, -
(a) where no order of confiscation is ultimately passed by the Collector,
(b) where an order passed on appeal under sub-section (1) of Sec. 6-C so requires, or
(c) where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under this section, the person concerned is acquitted, be paid to the owner or the person from whom it is seized. 29 ]
STATE AMENDMENTS
Bihar . —For section 6A, substitute the following section, namely:—
“6A. Confiscation of foodgrains, edible oilseeds, edible oils, etc. —(1) Where any essential commodity is seized in pursuance of an order made under section 3 in relation thereto it shall be reported without any reasonable delay to the Collector of the district in which such essential commodity is seized and the Collector may, if he thinks it expedient so to do, inspect or cause to be inspected such essential commodity, whether or not the prosecution is instituted for the contravention of such order and the Collector, if satisfied that there has been a contravention of the order, may order confiscation of—
(a) the essential commodities so seized;
(b) any package, covering or receptacle in which such essential commodity is found; and
(c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity:
Provided that, without prejudice to any action which may be taken under any other provision of this Act, no foodgrains or edible oilseeds seized in pursuance of an order made under section 3 in relation thereto from producer shall, if the seized foodgrains or edible oil-seeds have been produced by him, be confiscated under this section.
(2) Where the Collector, on receiving a report of seizure or in inspection of any essential commodity under sub-section (1), is of the opinion that such essential commodity is subject to speedy and natural decay or that it is otherwise, expedient in the public interest so to do, he may order the same to be sold at the controlled price if any, fixed under any law for the time being in force.
(3) In the case of foodgrains, where there is no controlled price, the Collector, if he thinks fit, may order the foodgrains seized under sub-section (1) to be sold through fair price shops at the price fixed by the Central Government or the State Government, as the case may be for the sale of such foodgrains to the public through these shops or may order such foodgrains by public auction.
(4) The Collector shall whenever it is practicable so to do having regard to the nature of the essential commodity take and preserve sample of the same in the prescribed manner before its sale or distribution.
(5) Where any essential commodity is sold as aforesaid, the sale proceeds thereof, after deduction of all expenses of the sale or auction, as the case may be, shall—
(a) where no order of confiscation is ultimately passed by the Collector; or
(b) where an order passed on appeal under sub-clause (1) of section 6C so requires; or
(c) in the case of prosecution being instituted for the contravention of the order in respect of which an order of confiscation has been made under this section and where the person concerned is acquitted to paid to the owner thereof or the person from whom it is seized:
Provided that in the case of foodgrains sold through fair price shops in accordance with sub-sections (2) and (3) the owner shall be paid for the foodgrains so sold, the price fixed by the State Government, for retail sale of such foodgrains through such shops less all expenses of sale or auction under sub-sections (2) and (3).
(6) Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), when Collector or the appellate authority is seized with the matter under this section no court shall entertain any application in respect of essential commodities, any package covering, receptacle, any animal, vehicle or other conveyance used in carrying such commodities as far as its release, distribution etc. is concerned and the jurisdiction of Collector or the appellate authority with regard to the disposal of the same shall be exclusive.
(7) The State Government may by notification in the Official Gazette, authorise any officer not below the rank of Sub-Divisional Magistrate, to discharge all or any of the functions of a Collector under this section.
(8) The Collector shall for the purposes of this Act have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 when making enquiries under this section in respect of following matters, namely:—
(a) receiving evidence on affidavits;
(b) summoning and enforcing the attendance of any person and examining him on oath; and
(c) compelling the production of documents.
(9) All enquiries and proceedings under this section before the Collector and the appellate authority shall be deemed to be judicial proceeding and while discharging functions under this section the Collector and the appellate authority shall be deemed to be a Court.
Explanation .—For the purposes of this section the Collector shall include ‘Additional Collector’ and any officer specially authorized under sub- section (7).”
[ Vide Bihar Act 9 of 1978, sec. 4 (w.e.f. 6-9-1978).]
Maharashtra. —For section 6A, substitute the following section, namely:—
“6A. Confiscation of seized commodities. —(1) Where any essential commodity is seized in pursuance of an order made under section 3 in relation thereto, a report to that effect shall, without any unreasonable delay, be sent to the Collector within whose jurisdiction the seizure is made, and the Collector may, if he thinks it expedient so to so, inspect or cause to be inspected such essential commodity, and whether or not a prosecution is instituted for the contravention of such order, the Collector, if satisfied that there has been contravention of the order, may order confiscation of—
(a) the essential commodity so seized;
(b) any package, covering or receptacle in which such essential commodity is found; and
(c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity:
Provided that without prejudice to any action that may be taken under any other provision of this Act, no foodgrains or edible oilseeds seized in pursuance of an order made under section 3 in relation thereto from a producer shall, if the seized foodgrains or edible oilseeds have been produced by him, be confiscated under this section:
Provided further that where any animal, vehicle, vessel or other conveyance is used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay in lieu of its confiscation a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried.
(2) Where the Collector on receiving a report of seizure or on inspection of any essential commodity under sub-section (1) is of the opinion that such essential commodity is subject to speedy and natural decay or that it is otherwise expedient in the public interest so to so , he may order the same to be sold at the controlled price if any, fixed under any law for the time being in force; or where no such price is fixed by auction:
Provided that, in the case of foodgrains where there is no controlled price, the Collector may order the foodgrains seized to be sold through fair price shops at the price fixed by the Central Government or the State Government, as the case may be, for the sale of such foodgrains to the public through these shops:
Provided further that, whenever it is practicable so to so, having regard to the nature of the essential commodity, he shall take and preserve sample of the same before its sale or auction.
(3) Where any essential commodity is sold as aforesaid, the sale proceeds thereof after deduction of the expenses of the sale or auction, as the case may be, shall—
(a) where no order of confiscation is ultimately passed by the Collector; or
(b) where an order passed, on appeal under sub-clause (1) of section 6C so requires; or
(c) in the case of a prosecution being instituted for the contravention of the order in respect of which an order of confiscation has been made under section, where the person concerned is acquitted, be paid to the owner thereof or the person from whom it is seized:
Provided that, in the case of foodgrains sold through fair price shops in accordance with the first proviso to sub-section (2) the owner shall be paid for the foodgrains so sold the price fixed by the State Government, for retail sale of such foodgrains through such shops, less all expenses of sale or auction under sub-section (2).”
[ Vide Maharashtra Act 1 of 1976, sec. 4 (w.r.e.f. 12-11-1975).]
———-
1. Extended to Goa, Daman and Diu with modifications by Regulation 12 of 1962, sec. 3 and Sch., to Dadra and Nagar Haweli by Regulation 6 of 1963, sec. 2 and Sch. I and to Lakshadweep and Amindivi Islands by Regulation 8 of 1965, sec. 3 and Sch., to the State of Sikkim (w.e.f. 7-1-1976), vide S.O. 28(E), dated 7th January, 1976.
This Act has been amended in Maharashtra by Maharashtra Act 71 of 1976, in Orissa by Orissa Act 8 of 1976, in Uttar Pradesh by Uttar Pradesh Acts 9 of 1974, 18 of 1975, 39 of 1975 and 16 of 1978.
2. Ins. by Act 25 of 1966, sec. 3 (w.e.f. 3-9-1966).
3. Section 6A renumbered as sub-section (1) thereof by Act 92 of 1976, sec. 4 (w.e.f. 2-9-1976). Earlier section 6A, before it was renumbered as sub-section (1), was amended by Act 30 of 1974, sec. 4 (w.r.e.f. 22-6-1974).
4. Subs. by Act 36 of 1967, sec. 4(a), for “foodgrains, edible oilseeds or edible oils are seized” (w.e.f. 30-12-1967).
5. Subs. by Act 92 of 1976, sec. 4(a)(i), for “it may be produced without any unreasonable delay, before” (w.e.f. 2-9-1976).
6. Subs. by Act 92 of 1976, sec. 4(a)(i), for “if satisfied” (w.e.f. 2-9-1976).
7. Subs. by Act 30 of 1974, sec. 4, for “may order confiscation of the essential commodity so seized” (w.r.e.f. 22-6-1974).
8. Ins. by Act 92 of 1976, sec. 4(a)(ii) (w.e.f. 2-9-1976).
9. Ins. by Act 92 of 1976, sec. 4(b) (w.e.f. 2-9-1976).
10. Proviso was substituted by Act 18 of 1981, sec. 4 as amended by Act 34 of 1993, sec. 3 for a period of fifteen years which now stands ceased to have effect after the expiry of fifteen years. The original proviso has been restored. See ppendix—Section 4 of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
Section 6-B ISSUE OF SHOW-CAUSE NOTICE BEFORE CONFISCATION OF ESSENTIAL COMMODITY.
1[6B. Issue of show cause notice before confiscation of foodgrains, etc.— 2[(1)] No order confiscating 3[any 4[essential commodity, package, covering or receptacle, animal, vehicle, vessel or other conveyance]] shall be made under section 6A unless the owner of such 4[essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance] or the person from whom 5[it is seized]—
(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the 6essential commodity 37 ], package, covering, receptacle. animal, vehicle, vessel or other conveyance 36 ];
(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and
(c) is given a reasonable opportunity of being heard in the matter. 31 ]
7(2) Without prejudice to the provisions of sub-section
(1). no order confiscating any animal, vehicle, vessel or other conveyance shall be made under section 6A if the owner of the animal, vehicle, vessel or other conveyance proves to the satisfaction of the Collector that it was used in carrying the essential commodity without the knowledge or connivance of the owner himself, his agent, if any, and the person in harge of the animal, vehicle, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use 38 ].
8(3) No order confiscating any essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance shall be invalid merely by reason of any defect or irregularity in the notice given under clause (a) of sub-section (1), if, in giving such notice, the provisions of that clause have been substantially complied with 39 ].
State Amendment
Uttar Pradesh.—After section 6B, insert the following section, namely:—
“6BB. Review.—(1) Where the Collector is satisfied that an order of confiscation or an order refusing confiscation made under section 6A suffers from a mistake apparent on the face of the record (including any mistake of law) he may within one month of such order issue notice to the owner of the essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance, or, as the case may be, the person from whom it was seized, to show cause why that order should not be reviewed, and after giving him a reasonable opportunity of being heard, pass such order on review as he thinks fit.
(2) The provisions of sections 6C and 6D shall apply in relation to an order passed originally under section 6A.”
[Vide Uttar Pradesh Act 18 of 1975, sec. 6 (w.e.f. 31-3-1975).]
—————
1. Ins. by Act 25 of 1966, sec. 3 (w.e.f. 3-9-1966).
2. Section 6B re-numbered as sub-section (1) thereof by Act 30 of 1974, sec. 5 (w.e.f. 22-6-1974).
3. Subs. by Act 36 of 1967, sec. 5, for “any foodgrains, edible oilseeds or edible oils” (w.e.f. 30-12-1967).
4. Subs. by Act 30 of 1974, sec. 5, for “essential commodity” (w.e.f. 22-6-1974).
5. Subs. by Act 36 of 1967, sec. 5, for “they are seized”.
6. Subs. by Act 36 of 1967, sec. 5, for “any foodgrains, edible oilseeds or edible oils” (w.e.f. 30-12-1967).
7. Ins. by Act 30 of 1974, sec. 5 (w.e.f. 22-6-1974).
8. Ins. by Act 92 of 1976, sec. 5 (w.e.f. 2-9-1976).
Section 6-C APPEAL.
2[ 6C. Appeal. —(1) Any person aggrieved by an order of confiscation under section 6A may, within one month from the date of the communication to him of such order, appeal to 3[any judicial authority appointed by the State Government concerned and the judicial authority] shall, after giving an opportunity to the appellant to be heard, pass such order as it may think fit, confirming, modifying or annulling the order appealed against.
(2) Where an order under section 6A is modified or annulled by 4[such judicial authority], or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under section 6A, the person concerned is acquitted, and in either case it is not possible for any reason to 5[return the essential commodity seized],
6[such persons shall, except as provided by sub-section (3) of section 6A, be paid] the price therefor 7[as if the essential commodity,] had been sold to the Government with reasonable interest calculated from the day of the seizure of 6 [the essential commodity] 8[and such price shall be determined—
(i) in the case of foodgrains, edible oilseeds or edible oils, in accordance with the provisions of sub-section (3B) of section 3;
(ii) in the case of sugar, in accordance with the provisions of sub-section (3C) of section 3; and
(iii) in the case of any other essential commodity, in accordance with the provisions of sub-section (3) of section 3.]]
State Amendment
Bihar. —For section 6C, substitute the following section, namely:—
“6C. Appeal. —(1) Any person aggrieved by an order of confiscation under section 6A may, within one month from the date of the communication to him of such order, appeal to any judicial authority appointed by the State Government concerned and the judicial authority shall, after giving an opportunity to the appellant to be heard, pass such order as it may think fit, confirming, modifying or annulling the order appealed against.
(2) Where an order under section 6A modified or annulled by such judicial authority, or where in a prosecution for the contravention of the order in respect of which an order of confiscation has been made under section 6A, the person concerned is acquitted and in either case it is not possible for any reason to return the essential commodity seized, such person shall, save as provided by sub-section (3) of section 6A, be paid the price thereof as if the essential commodity had been sold to the Government with reasonable interest calculated from the day of the seizure of the essential commodity and such price shall be determined—
(i) in the case of foodgrains, edible oilseeds or edible oils, in accordance with the provisions of sub-section (3B) of section 3;
(ii) in the case of sugar in accordance with the provisions of sub-section (3C) of section 3; and
(iii) in the case of any other essential commodity, in accordance with the provisions of sub-section (3) of section 3.”
[ Vide Bihar Act 9 of 1978, sec. 5 (w.e.f. 6-9-1978).]
———-
1. Extended to Goa, Daman and Diu with modifications by Regulation 12 of 1962, sec. 3 and Sch., to Dadra and Nagar Haweli by Regulation 6 of 1963, sec. 2 and Sch. I and to Lakshadweep and Amindivi Islands by Regulation 8 of 1965, sec. 3 and Sch., to the State of Sikkim (w.e.f. 7-1-1976), vide S.O. 28(E), dated 7th January, 1976.
This Act has been amended in Maharashtra by Maharashtra Act 71 of 1976, in Orissa by Orissa Act 8 of 1976, in Uttar Pradesh by Uttar Pradesh Acts 9 of 1974, 18 of 1975, 39 of 1975 and 16 of 1978.
2. Ins. by Act 25 of 1966, sec. 3 (w.e.f. 3-9-1966).
3. The words “the State Government concerned and the State Government” subs. by Act 18 of 1981, sec. 5(a) as amended by Act 34 of 1993, sec. 3, for “any judicial authority appointed by the State Government and the judicial authority” for a period of fifteen years, now they stand ceased to have effect after the expiry of fifteen years. See Appendix — Section 5(a) of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
4. The words “the State Government” subs. by Act 18 of 1981, sec. 5(b) as amended by Act 34 of 1993, sec. 3, for “such judicial authority” for a period of fifteen years, now they stand ceased to have effect after the expiry of fifteen years, See Appendix — Section 5(b) of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
5. Subs. by Act 36 of 1967, sec. 6(a), for “return the foodgrains or edible oilseeds or edible oils seized” (w.e.f. 30-12-1967).
6. Subs. by Act 92 of 1976, sec. 6, for “such person shall be paid”
7. Subs. by Act 36 of 1967, sec. 6(b), for “as if the foodgrains, edible oilseeds or edible oils, as the case may be,” (w.e.f. 30-12-1967).
8. Subs. by Act 36 of 1967, sec. 6(c), for “articles” (w.e.f. 30-12-1967).
9. Subs. by Act 36 of 1967, sec. 6(d), for certain words (w.e.f. 30-12-1967).
Section 6-D AWARD OF CONFISCATION NOT TO INTERFERE WITH OTHER PUNISHMENTS.
The award of any confiscation under this Act by the Collector shall not prevent the infliction of any punishment to which the person affected thereby is liable under this Act. 21 ]
—————
1. Ins. by Act 25 of 1966, sec. 3 (w.e.f. 3-9-1966).
Section 6 E. Bar of jurisdiction in certain cases.
1[6E. Bar of jurisdiction in certain cases.—
Whenever any essential commodity is seized in pursuance of an order made under Sec. 3 in relation thereto, or any package, covering or receptacle in which such essential commodity is found, or any animal, vehicle, vessel or other conveyance used in carrying such essential commodity is seized pending confiscation under Sec. 6-A, the Collector,
or, as the case may be,2[the judicial authority appointed under section 6C] shall have, and, notwithstanding anything to the contrary contained in any other law for the time being in force, 3[any other court, tribunal or authority] , jurisdiction to make orders with regard to the possession, delivery, disposal, release or distribution of such essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance. 46 ]
—————
1. Ins. by Act 92 of 1976, sec. 7 (w.e.f. 2-9-1976) and subs. by Act 42 of 1986, sec. 2 (w.e.f. 9-9-1986).
2. The words “the State Government concerned under section 6C” subs. by Act 18 of 1981 as amended by Act 34 of 1993, for “the judicial authority appointed under section 6C” for a period of fifteen years, now they stand ceased to have effect after the expiry of fifteen years. See Appendix — Section 6(a) of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
3. The words “any court, tribunal or other authority” subs. by Act 18 of 1981 as amended by Act 34 of 1993, for “any other court, tribunal or authority” for a period of fifteen years, now they stand ceased to have effect after the expiry of fifteen years. See Appendix — Section 6(b) of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
Section 7 PENALTIES.
2PENALTIES. 1(1) If any person contravenes any order made under Sec. 3, – (a) he shall be punishable, -
(i) in the case of an order made with reference to Cl.(h) or Cl.(i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and
(ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine;
3[Provided that 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 three months;]
(b) any property in respect of which the order has been contravened shall be forfeited to the Government;
(c) any packing, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the property shall, if the Court so orders, be forfeited to the Government.
(2) If any person to whom a direction is given under Cl. (b) of sub-section (4) of Sec. 3 fails to comply with the direction, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine.
5[Provided that 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 three months.]
4(2-A) If any person convicted of an offence under sub-clause(ii) of Cl. (a) of sub-section (1) or under sub-section (2) is again convicted of an offence under the same provision, he shall be punishable with imprisonment for the second and for every subsequent offence for a term which shall not be
less than six months but which may extend to seven years and shall also be liable to fine :
6[Provided that 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.]
7[(2B) For the purposes of sub-sections (1), (2) and (2A), the fact that an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) has caused no substantial harm to the general public or to any individual, shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than three months, or six months, as the case may be.]]
8(3) Where a person having been convicted of an offence under sub-section (1) is again convicted of an offence under that sub-section for contravention of an order in respect of an essential commodity, the Court by which such person is convicted shall, in addition to any penalty which may be imposed on him under that sub-section, by order, direct that person shall not carry on any business in that essential commodity for such period, not being less than six months, as may be specified by the Court in the order. 52 ]
STATE AMENDMENTS
Punjab : Haryana: Chandigarh. —After section 7, insert the following section, namely:—
“7A. Forfeiture of certain property used in the commission of the offence .—Whenever any offence relating to foodstuffs which is punishable under section 7 had been committed, the Court shall direct that all the packages, coverings or receptacles in which any property liable to be forfeited under the said section is found and all the animals, vehicles, vessels or other conveyances used in carrying the said property shall be forfeited to the Government.”
[ Vide Punjab Act 34 of 1959, sec. 2 (w.e.f. 27-8-1959).]
Rajasthan. —After section 7, insert the following section, namely:—
“ 7A. Same as in Punjab with following proviso:
Provided that if the Court is of opinion that it is not necessary to direct forfeiture in respect of all such packages, coverings or receptacles or such animals, vehicles, vessels, or other conveyances or any of them, it may, for reasons to be recorded, refrain from doing so.”
[ Vide Rajasthan Act 32 of 1960, sec. 2 (w.e.f. 24-9-1960).]
1. Extended to Goa, Daman and Diu with modifications by Regulation 12 of 1962, sec. 3 and Sch., to Dadra and Nagar Haweli by Regulation 6 of 1963, sec. 2 and Sch. I and to Lakshadweep and Amindivi Islands by Regulation 8 of 1965, sec. 3 and Sch., to the State of Sikkim (w.e.f. 7-1-1976), vide S.O. 28(E), dated 7th January, 1976.
This Act has been amended in Maharashtra by Maharashtra Act 71 of 1976, in Orissa by Orissa Act 8 of 1976, in Uttar Pradesh by Uttar Pradesh Acts 9 of 1974, 18 of 1975, 39 of 1975 and 16 of 1978.
2. Subs. by Act 30 of 1974, sec. 6, for sub-section (1) (w.r.e.f. 22-6-1974). Earlier sub-section (1) was amended by Act 25 of 1966, sec. 4 (w.e.f. 3-9-1966) and by Act 36 of 1967, sec. 7(a) (w.e.f. 30-12-1967).
3. Proviso was omitted by Act 18 of 1981, sec. 7(a) as amended by Act 34 of 1993, sec. 3 for a period of fifteen years which now stands restored after the expiry of fifteen years. See Appendix — Section 7(a) Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
4. Subs. by Act 30 of 1974, sec. 6, for sub-section (2) (w.r.e.f. 22-6-1974). Earlier sub-section (2) was amended by Act 36 of 1967, sec. 8(b) (w.e.f. 30-12-1967).
5. Proviso was omitted by Act 18 of 1981, sec. 7(b) as amended by Act 34 of 1993, sec. 3 for a period of fifteen years which now stands restored after the expiry of fifteen years. See Appendix — Section 7(b) of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
6. Proviso was omitted by Act 18 of 1981, sec. 7(c) as amended by Act 34 of 1993, sec. 3 for a period of fifteen years which now stands restored after the expiry of fifteen years. See Appendix — Section 7(c) of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
7. Sub-section (2B) was omitted by Act 18 of 1981, sec.7(d) as amended by Act 34 of 1993,sec. 3 for a period of fifteen years which now stands restored after the expiry of fifteen years. See Appendix —Section 7(d) of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
8. Ins. by Act 36 of 1967, sec. 7(c) (w.e.f. 30-12-1967).
Section 7-A POWER OF CENTRAL GOVERNMENT TO RECOVER CERTAIN AMOUNTS AS ARREARS OF LAND REVENUE.
1POWER OF CENTRAL GOVERNMENT TO RECOVER CERTAIN AMOUNTS AS ARREARS OF LAND REVENUE.
(1) Where any person, liable to, -
(a) pay any amount in pursuance of any order made under Sec. 3, or
(b) deposit any amount to the credit of any account or fund constituted by or in pursuance of any order made under that section. makes any default in paying or depositing the whole or any part of such amount, the amount in respect of which such default has been made shall whether such order was made before or after the commencement of the Essential Commodities (Amendment) Act, 1984, and whether the liability of such person to pay or deposit such amount arose before or after such commencement be recoverable by Government together with simple interest due thereon computed at the rate 2[fifteen per cent.] per annum from the date of such default to the date of recovery of such amount, as an arrear of land revenue 3[or as a public demand].
(2) The amount recovered under sub-section (1) shall be dealt with in accordance with the order under which the liability to pay or deposit such amount arose.
(3) Notwithstanding anything contained in any other law for the time being in force or any contract to the contrary, no Court, Tribunal or other authority shall grant any injunction or make any order prohibiting or restraining any
Government from recovering any amount as an arrear of land revenue [ 56 or as a public demand 56 ] in pursuance of the provisions of sub-section (1).
(4) If any order, in pursuance of which any amount has been recovered by Government as an arrear of land revenue [ 57 or as a public demand 57 ] under sub-section (1) is declared by a competent Court, after giving to the Government a reasonable opportunity of being heard, to be invalid, the Government shall refund the amount so recovered by it to the person from whom it was recovered, together with simple interest due thereon, computed at the rate of 4[ fifteen per cent. ] per annum, from the date of recovery of such amount to the date on which such refund is made.
Explanation :
For the purposes of this section, “Government” means the Government by which the concerned order under Sec. 3 was made or where such order was made by an officer or authority subordinate to any Government, that Government. 53 ]
—————
1. Ins. by Act 34 of 1984, sec. 2 (w.e.f. 1-7-1984).
2. Subs. by Act 42 of 1986, sec. 3, for “six per cent.” (w.e.f. 8-9-1986).
3. Ins. by Act 42 of 1986, sec. 3 (w.e.f. 8-9-1986).
4. Subs. by Act 42 of 1986, sec. 3, for “six per cent.” (w.e.f. 8-9-1986).
Section 8 . ATTEMPTS AND ABETMENT.
Any person who attempts to contravene, or abets contravention of any order made under section 3 shall be deemed to have contravene that order:
1[***]
—————
1. Proviso was ins. by Act 18 of 1981 as amended Act 34 of 1993 for a period of fifteen years. It now stands ceased to have effect after the expiry of fifteen years. See Appendix — Section 8 of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
Section 9 FALSE STATEMENT.
If any person. -
(i) when required by any order made under Sec. 3 to make any statement or furnish any information, makes any statement or furnishes any information which is false in any material particular and which he knows or has reasonable cause to believe to be false, or does not believe to be true, or
(ii) makes any such statement as aforesaid in any book, account, record declaration, return or other document which he is required by any such order to maintain or furnish, he shall be punishable with imprisonment for a term which may extend to 1[ five years,] or with fine, or with both.
—————
1. Subs. by Act 36 of 1967, sec. 8, for “three years” (w.e.f. 30-12-1967).
Section 10 OFFENCES BY COMPANIES.
(1) If the person contravening an order made under Sec. 3 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 to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
(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 purposes 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.
Section 10-A
1[10A. Offences to be cognizable 2[3[***]]—Notwithstanding anything contained in 4[the Code of Criminal Procedure, 1973 (2 of 1974)] every offence punishable under this Act shall be *cognizable 2[3[***]]].
5[***]
—————
1. Ins. by Act 36 of 1967, sec. 9 (w.e.f. 30-12-1967).
2. The words “and bailable” omitted by Act 30 of 1974, sec. 7 (w.r.e.f. 22-6-1974).
3. After the word “cognizable” the words “and non-bailable” were ins. by Act 18 of 1981 as amended by Act 34 of 1993 for a period of fifteen years, now they stand ceased to have effect after the expiry of fifteen years. See Appendix — Section 9 of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
4. Subs. by Act 30 of 1974, sec. 7, for “the Code of Criminal Procedure, 1898 (5 of 1898)” (w.e.f. 22-6-1974).
5. Section 10AA was ins. by Act 34 of 1993 for a period of fifteen years which now stands ceased to have effect after the expiry of fifteen years. See Appendix — Section 9A of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
Section 10-B
1 POWER OF COURT TO PUBLISH NAME, PLACE OF BUSINESS, ETC., OF COMPANIES CONVICTED UNDER THE ACT.
(1) Where any company is convicted under this Act, it shall be competent for the Court convicting the company to cause the name and place of business of the company, nature of the contravention, the fact that the company has been so convicted and such other particulars as the Court may consider to be appropriate in the circumstances of the case, to be published at the expense of the company in such newspapers or in such other manner as the Court may direct.
(2) No publication under sub-section (1) shall be made until the period for preferring an appeal against the order of the Court has expired without any appeal having been preferred, or such an appeal, having been preferred, has been disposed of.
(3) The expenses of any publication under sub-section (1) shall be recoverable from the company as if it were a fine imposed by the Court.
Explanation :
For the purposes of this section, “company” has the meaning assigned to it in Cl.(a) of the explanation to See. 10.
—————
1. Ins. by Act 30 of 1974, sec.8 (w.r.e.f. 22-6-1974).
Section 10-C PRESUMPTION OF CULPABLE MENTAL STATE.
1 PRESUMPTION OF CULPABLE MENTAL STATE. (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act
charged as an offence in that prosecution.
Explanation :
In this section, “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
(2) For the purposes of this section, a fact is said to the proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. 67 ]
————
1. Ins. by Act 30 of 1974, sec. 8 (w.r.e.f. 22-6-1974).
Section 11 Cognizance of offences.
No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in Sec. 21 of the Indian Penal Code (45 of 1860) [ 68 or any person aggrieved or any recognised consumer association, whether such person is a member of that association or not 68 ].
1 Explanation :
For the purposes of this section and Sec. 12-AA. 70
“recognised consumer association” means a voluntary consumer association registered under the Companies Act, 1956(1 of 1956) or any other law for the time being in force.
state amendment
Uttar Pradesh.—In section 11, for the wrods “by a person who is a public servant as defined in section 21 of the Indian Penal Code,” substitute the words “by order of, or under authority from the District Magistrate or such other officer as may be empowered by the State Government by general or special order in this behalf.”
[Vide Uttar Pradesh Act 9 of 1974, sec. 7 (w.e.f. 24-4-1974).]
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1. Ins. by Act 73 of 1986, sec. 2 (w.e.f. 1-5-1987).
Section 12. Special provision regarding fine.
1[2[12. Special provision regarding fine.—Notwithstanding anything contained in section 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 specially empowered by the State Government in this behalf, to pass a sentence of fine exceeding five thousand rupees on any person convicted of contravening any order made under section 3.]]
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1. Subs. by Act 30 of 1974, sec. 9 (w.r.e.f. 22-6-1974).
2. Section 12 was omitted by Act 18 of 1981 as amended by Act 34 of 1993 for a period of fifteen years which now stands restored after the expiry of fifteen years. See Appendix — Section 10 of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
Section 12-A. Power to try summarily
2[3[12A. Power to try summarily.—(1) If the Central Government is of opinion that a situation has arisen where, in the interests of production, supply or distribution of 4[any essential commodity not being an essential commodity referred to in clause (a) of sub-section (2)] or trade or commerce therein and other relevant considerations, it is necessary that the contravention of any order made under section 3 in relation to such essential commodity should be tried summarily, the Central Government may, by notification in the Official Gazette, specify such order to be a special order for purposes of summary trial under this section, and every such notification shall be laid, as soon as may be after it is issued, before both Houses of Parliament:
5[Provided that—
(a) every such notification issued after the commencement of the Essential Commodities (Amendment) Act, 1971, shall, unless sooner rescinded, cease to operate at the expiration of two years after the publication of such notification in the Official Gazette;
(b) every such notification in force immediately before such commencement shall, unless sooner rescinded, cease to operate at the expiration of two years after such commencement:
Provided further that nothing in the foregoing proviso shall affect any case relating to the contravention of a special order specified in any such notification if proceedings by way of summary trial have commenced before that notification is rescinded or ceases to operate and the provisions of this section shall continue to apply to that case as if that notification had not been rescinded or had not ceased to operate.]
6[(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) all, offences relating to—
a) the contravention of an order made under section 3 with respect to—
7[***]
(ii) foodstuffs, including edible oilseeds and oil; or
(iii) drugs; and
(b) where any notification issued under sub-section (1) in relation to a special order is in force, the contravention of such special order, 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 sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:
Provided that, in the case 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 witnesses who may have been examined and proceed to hear or re-hear the case in the manner provided by the said Code.]
(3) Notwithstanding anything to the contrary contained in 8[the Code of Criminal Procedure, 1973 (2 of 1974),] there shall be no appeal by a convicted person in any case tried summarily under this section in which the Magistrate passes a sentence of imprisonment not exceeding one month, 9[and of fine not exceeding two thousand rupees] whether or not any order of forfeiture of property or an order under 10[section 452] of the said Code is made in addition to such sentences, but an appeal shall lie where any sentence 11[***] in excess of the aforesaid limits is passed by the Magistrate.
12[(4) All cases relating to the contravention of an order referred to in clause (a) of sub-section (2), not being a special order, and pending before a Magistrate immediately before the commencement of the Essential Commodities (Amendment) Act, 1974, and, where any notification is issued under sub-section (1) in relation to a special order, all cases relating to the contravention of such special order and pending before a Magistrate immediately before the date of the issue of such notification, shall, if no witnesses have been examined before such commencement or the said date, as the case may be, be tried in a summary way under this section, and if any such case is pending before a Magistrate who is not competent to try the same in a summary way under this section, it shall be forwarded to a Magistrate so competent.]]]
STATE AMENDMENTS
Uttar Pradesh. —In section 12,—
(i) after sub-section (1), insert the following sub-section, namely:—
“(1A) without prejudice to the powers of the Central Government under sub-section (i) if the State Government is of opinion that a situation has arisen where, in the interests of production, supply or distribution of any essential commodity, or trade or commerce therein, and other relevant considerations, it is necessary that the contravention of any order made under section 3 in relation to such essential commodity should be tried summarily, the State Government may, by notification in the Official Gazette, specify such order to be a special order for purposes of summary trial under this section and every such notification shall be laid as soon as may be after it is issued, before both Houses of the State Legislature.”;
(ii) in sub-section (2), after the words, figure and brackets “under sub-section (1)” the words, figure, letter and brackets “or under sub-section (1A)” shall be inserted and for the words “a Megistrate of the first class specially empowered in this behalf by the State Government”, the words “a Magistrate of the first class having experience as such of not less than five years” shall be substituted;
(iii) in sub-section (4), after the words, figure and brackets, “under sub-section (1)” the words, figure, letter and brackets “or under sub-section (1A)” shall be inserted.
[ Vide Uttar Pradesh Act 9 of 1974 (w.e.f. 27-9-1974).]
Ed. These amendments are prior to the amendments made by the Central Act 30 of 1974 (w.e.f. 22-6-1974).
13[***]
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1. Extended to Goa, Daman and Diu with modifications by Regulation 12 of 1962, sec. 3 and Sch., to Dadra and Nagar Haweli by Regulation 6 of 1963, sec. 2 and Sch. I and to Lakshadweep and Amindivi Islands by Regulation 8 of 1965, sec. 3 and Sch., to the State of Sikkim (w.e.f. 7-1-1976), vide S.O. 28(E), dated 7th January, 1976.
This Act has been amended in Maharashtra by Maharashtra Act 71 of 1976, in Orissa by Orissa Act 8 of 1976, in Uttar Pradesh by Uttar Pradesh Acts 9 of 1974, 18 of 1975, 39 of 1975 and 16 of 1978.
2. Ins. by Act 47 of 1964, sec. 2 (w.e.f. 5-11-1964).
3. Section 12A was substituted by Act 18 of 1981, sec. 11 as amended by Act 34 of 1993,
sec. 3 for a period of fifteen years which now stands ceased to have effect after the expiry of fifteen years. The original section 12A as inserted by Act 47 of 1964, sec. 2 (w.e.f. 5-11-1964) and amended by Act 66 of 1971 and by Act 30 of 1974, sec. 10 (w.r.e.f. 22-6-1974) has been restored. See Appendix — Section 11 of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
4. Subs. by Act 30 of 1974, sec. 10, for “any essential commodity” (w.r.e.f. 22-6-1974).
5. Added by Act 66 of 1971, sec. 5 (w.e.f. 23-12-1971).
6. Subs. by Act 30 of 1974, sec. 10, for sub-section (2) (w.r.e.f. 22-6-1974).
7. Sub-clause (i) omitted by Act 54 of 2006, sec. 5 (w.e.f. 12-2-2007). Sub-clause (i), before omission, stood as under: ‘(i) cotton or woollen textiles; or’.
8. Subs. by Act 30 of 1974, sec. 10, for “the Code of Criminal Procedure, 1898 (5 of 1898)” (w.r.e.f. 22-6-1974).
9. Subs. by Act 30 of 1974, sec. 10, for “or of fine not exceeding two thousand rupees or both” (w.r.e.f. 22-6-1974).
10. Subs. by Act 30 of 1974, sec. 10, for “section 517” (w.r.e.f. 22-6-1974).
11. The words “of imprisonment or fine” omitted by Act 30 of 1974, sec. 10 (w.r.e.f. 22-6-1974).
12. Subs. by Act 30 of 1974, sec. 10, for sub-section (4), (w.r.e.f. 22-6-1974).
13. Sections 12AA, 12AB, 12AC were substituted by Act 18 of 1981, sec. 11, for section 12 as amended by Act 34 of 1993, sec. 3 for a period of fifteen years which now stand ceased to have effect after the expiry of fifteen years. Earlier section 12AA was amended by Act 42 of 1986, sec. 4 (w.e.f. 8-9-1986) and by Act 73 of 1986, sec. 3 (w.e.f. 1-5-1987). See Appendix — Section 11 of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981).
Section 12-B GRANT OF INJUNCTION, ETC., BY CIVIL COURTS.
1GRANT OF INJUNCTION, ETC., BY CIVIL COURTS.
No Civil Court shall grant an injunction or make any order for any other relief, against the Central Government or any State Government or a public officer in respect of any act done or purporting to be done by such Government, or such officer in his official capacity, under this Act or any order made thereunder, until after notice of the application for such injunction or other relief has been given to such Government or officer.
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1. Ins. by Act 30 of 1974, sec. 11 (w.r.e.f. 22-6-1974).
Section 13 PRESUMPTION AS TO ORDERS.
Where an order purports to have been made and signed by an authority in exercise of any power conferred by or under this Act, a court shall presume that such order was so made by that authority within the meaning of the Indian Evidence Act, 1872 (1 of 1872).
Section 14 BURDEN OF PROOF IN CERTAIN CASES.
Where a person is prosecuted for contravening any order made under Sec. 3 which prohibits him from doing any act or being in possession of a thing without lawful authority or without a permit, licence or other document, the burden of proving that he has such authority, permit, licence or other
document shall be on him.
Section 15 PROTECTION OF ACTION TAKEN UNDER ACT.
(1) No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of any order made under Sec. 3.
(2) No suit or other legal proceeding shall lie against the Government for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of any order made under Sec. 3.
Section 15-A. PROSECUTION OF PUBLIC SERVANT.
1 PROSECUTION OF PUBLIC SERVANT.
Where any person who is a public servant is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his duty in pursuance of an order made under Sec. 3. no Court shall take cognizance of such offence except with the previous
sanction, -
(a) of the Central Government, in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union,
(b) of the State Government, in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the State.
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1. Ins. by Act 92 of 1976, sec. 8 (w.e.f. 2-9-1976).
Section 16. Repeals and savings.
(1) The following laws are hereby repealed:—
(a) the Essential Commodities Ordinance, 1955 (1 of 1955);
(b) any other law in force in any State immediately before the commencement of this Act in so far as such law controls or authorises the control of the production, supply and distribution of, and trade and commerce in, any essential commodity.
(2) Notwithstanding such repeal, any order made or deemed to be made by any authority whatsoever, under any law repealed hereby and in force immediately before the commencement of this Act, shall, in so far as such order may be made under this Act, be deemed to be made under this Act and continue in force, and accordingly any appointment made, licence or permit granted or direction issued under any such order and in force immediately before such commencement shall continue in force until and unless it is superseded by any appointment made, licence or permit granted or direction issued under this Act.
(3) The provision of sub-section (2) shall be without prejudice to the provision contained in section 6 of the General Clauses Act, 1897 (10 of 1897), which shall also apply to the repeal of the Ordinance or other law referred to in sub-section (1) as if such Ordinance or other law had been an enactment.
November 30, 2014
Section 1. Short title, extent and commencement.
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 20051
[No. 43 OF 2005]
[September 13, 2005]
An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto
Be it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:-
Prefatory Note-Statement of Objects and Reasons.-Domestic violence is undoubtedly a human right issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.
2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under Section 498-A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.
3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.
4. The Bill, inter alia, seeks to provide for the following:-
(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.
(ii) It defines the expression “domestic violence” to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.
(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.
(v) It provides for appointment of Protection Officers and registration of non-governmental organisations as service providers for providing assistance to the aggrieved person with respect to her medical examination, obtaining legal aid, safe shelter, etc.
5. The Bill seeks to achieve the above objects. The notes on clauses explain the various provisions contained in the Bill.
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1. Received the assent of the President on September 13, 2005 and published in the Gazette of India Extra, Part II, section 1 dated 14th September 2005, pp. 1-12, No. 49
(1) This Act may be called the Protection of Women from Domestic Violence Act, 2005.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date1 as the Central Government may, by notification in the Official Gazette, appoint.
Section 2. Definitions.
In this Act, unless the context otherwise requires,—
(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
(b) “child” means any person below the age of eighteen years and includes any adopted, step or foster child;
(c) “compensation order” means an order granted in terms of section 22;
(d) “custody order” means an order granted in terms of section 21;
(e) “domestic incident report” means a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person;
(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
(g) “domestic violence” has the same meaning as assigned to it in section 3;
(h) “dowry” shall have the same meaning as assigned to it in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961);
(i) “Magistrate” means the Judicial Magistrate of the first class, or as the case may be, the Metropolitan Magistrate, exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) in the area where the aggrieved person resides temporarily or otherwise or the respondent resides or the domestic violence is alleged to have taken place;
(j) “medical facility” means such facility as may be notified by the State Government to be a medical facility for the purposes of this Act;
(k) “monetary relief” means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence;
(l) “notification” means a notification published in the Official Gazette and the expression “notified” shall be construed accordingly;
(m) “prescribed” means prescribed by rules made under this Act;
(n) “Protection Officer” means an officer appointed by the State Government under sub-section (1) of section 8;
(o) “protection order” means an order made in terms of section 18;
(p) “residence order” means an order granted in terms of sub-section (1) of section 19;
(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.
(r) “service provider” means an entity registered under sub-section (1) of section 10;
(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
(t) “shelter home” means any shelter home as may be notified by the State Government to be a shelter home for the purposes of this Act.
Section 3. Definition of domestic violence.
For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—
(a) harms or injures or endangers the health, safety, life, limb or well‑being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
Explanation I.—For the purposes of this section,—
(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes—
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) “economic abuse” includes—
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.
Section 4. Information to Protection Officer and exclusion of liability of informant.
(1) Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer.
(2) No liability, civil or criminal, shall be incurred by any person for giving in good faith of information for the purpose of sub-section (1).
Section 5. Duties of police officers, service providers and Magistrate.
A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person—
(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
(d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987);
(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant:
Provided that nothing in this Act shall be construed in any manner as to relieve a police officer from his duty to proceed in accordance with law upon receipt of information as to the commission of a cognizable offence.
Section 6. Duties of shelter homes.
If an aggrieved person or on her behalf a Protection Officer or a service provider requests the person in charge of a shelter home to provide shelter to her, such person in charge of the shelter home shall provide shelter to the aggrieved person in the shelter home.
Section 7. Duties of medical facilities.
If an aggrieved person or, on her behalf a Protection Officer or a service provider requests the person in charge of a medical facility to provide any medical aid to her, such person in charge of the medical facility shall provide medical aid to the aggrieved person in the medical facility.
Section 8. Appointment of Protection Officers.
(1) The State Government shall, by notification, appoint such number of Protection Officers in each district as it may consider necessary and shall also notify the area or areas within which a Protection Officer shall exercise the powers and perform the duties conferred on him by or under this Act.
(2) The Protection Officers shall as far as possible be women and shall possess such qualifications and experience as may be prescribed.
(3) The terms and conditions of service of the Protection Officer and the other officers subordinate to him shall be such as may be prescribed.
Section 9. Duties and functions of Protection Officers.
(1) It shall be the duty of the Protection Officer—
(a) to assist the Magistrate in the discharge of his functions under this Act;
(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;
(c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;
(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 (39 of 1987) and make available free of cost the prescribed form in which a complaint is to be made;
(e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;
(f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;
(g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;
(h) to ensure that the order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
(i) to perform such other duties as may be prescribed.
(2) The Protection Officer shall be under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and the Government by, or under, this Act.
Section 10. Service Providers.
(1) Subject to such rules as may be made in this behalf, any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or a company registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force with the objective of protecting the rights and interests of women by any lawful means including providing of legal aid, medical, financial or other assistance shall register itself with the State Government as a service provider for the purposes of this Act.
(2) A service provider registered under sub‑section (1) shall have the power to—
(a) record the domestic incident report in the prescribed form if the aggrieved person so desires and forward a copy thereof to the Magistrate and the Protection Officer having jurisdiction in the area where the domestic violence took place;
(b) get the aggrieved person medically examined and forward a copy of the medical report to the Protection Officer and the police station within the local limits of which the domestic violence took place;
(c) ensure that the aggrieved person is provided shelter in a shelter home, if she so requires and forward a report of the lodging of the aggrieved person in the shelter home to the police station within the local limits of which the domestic violence took place.
(3) No suit, prosecution or other legal proceeding shall lie against any service provider or any member of the service provider who is, or who is deemed to be, acting or purporting to act under this Act, for anything which is in good faith done or intended to be done in the exercise of powers or discharge of functions under this Act towards the prevention of the commission of domestic violence.
Section 11. Duties of Government.
The Central Government and every State Government, shall take all measures to ensure that—
(a) the provisions of this Act are given wide publicity through public media including the television, radio and the print media at regular intervals;
(b) the Central Government and State Government officers including the police officers and the members of the judicial services are given periodic sensitization and awareness training on the issues addressed by this Act;
(c) effective co‑ordination between the services provided by concerned Ministries and Departments dealing with law, home affairs including law and order, health and human resources to address issues of domestic violence is established and periodical review of the same is conducted;
(d) protocols for the various Ministries concerned with the delivery of services to women under this Act including the courts are prepared and put in place.
Section 12. Application to Magistrate.
(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.
Section 13. Service of notice.
(1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt.
(2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved.
Section 14. Counseling.
(1) The Magistrate may, at any stage of the proceedings under this Act, direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling with any member of a service provider who possess such qualifications and experience in counseling as may be prescribed.
(2) Where the Magistrate has issued any direction under sub‑section (1), he shall fix the next date of hearing of the case within a period not exceeding two months.
Section 15. Assistance of welfare expert.
In any proceeding under this Act, the Magistrate may secure the services of such person, preferably a woman, whether related to the aggrieved person or not, including a person engaged in promoting family welfare as he thinks fit, for the purpose of assisting him in discharging his functions.
Section 16. Proceedings to be held in camera.
If the Magistrate considers that the circumstances of the case so warrant, and if either party to the proceedings so desires, he may conduct the proceedings under this Act in camera.
Section 17. Right to reside in a shared household.
(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
Section 18. Protection orders.
The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from—
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
Section 19. Residence orders.
(1) While disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.
Section 20. Monetary reliefs.
(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub‑section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub‑section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
Section 21. Custody orders.
Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:
Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.
Section 22. Compensation orders.
In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.
Section 23. Power to grant interim and ex parte orders.
(1) In any proceeding before him under this Act, the Magistrate may pass such interim order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.
Section 24. Court to give copies of order free of cost.
The Magistrate shall, in all cases where he has passed any order under this Act, order that a copy of such order, shall be given free of cost, to the parties to the application, the police officer-in‑charge of the police station in the jurisdiction of which the Magistrate has been approached, and any service provider located within the local limits of the jurisdiction of the court and if any service provider has registered a domestic incident report, to that service provider.
Section 25. Duration and alteration of orders.
(1) A protection order made under section 18 shall be in force till the aggrieved person applies for discharge.
(2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.
Section 26. Relief in other suits and legal proceedings.
(1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub‑section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.
Section 27. Jurisdiction.
(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which—
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen,
shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made this Act shall be enforceable throughout India.
Section 28 – Procedure.
(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.
Section 29- Appeal.
There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.
Section 30. Protection Officers and members of service providers to be public servants.
The Protection Officers and members of service providers, while acting or purporting to act in pursuance of any of the provisions of this Act or any rules or orders made thereunder shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).
Section 31. Penalty for breach of protection order by respondent.
(1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the Magistrates may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.
Section 32. Cognizance and proof.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence under sub-section (1) of section 31 shall be cognizable and non-bailable.
(2) Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-section (1) of section 31 has been committed by the accused.
Section 33. Penalty for not discharging duty by Protection Officer.
If any Protection Officer fails or refuses to discharges his duties as directed by the Magistrate in the protection order without any sufficient cause, he shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
Section 34. Cognizance of offence committed by Protection Officer.
No prosecution or other legal proceeding shall lie against the Protection Officer unless a complaint is filed with the previous sanction of the State Government or an officer authorised by it in this behalf.
Section 35. Protection of action taken in good faith.
No suit, prosecution or other legal proceeding shall lie against the Protection Officer for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder.
Section 36. Act not in derogation of any other law.
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 37. Power of Central Government to make rules.
(1) The Central 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 power, such rules may provide for all or any of the following matters, namely:—
(a) the qualifications and experience which a Protection Officer shall possess under sub-section (2) of section 8;
(b) the terms and conditions of service of the Protection Officers and the other officers subordinate to him, under sub‑section (3) of section 8;
(c) the form and manner in which a domestic incident report may be made under clause (b) of sub‑section (1) of section 9;
(d) the form and the manner in which an application for protection order may be made to the Magistrate under clause (c) of sub‑section (1) of section 9;
(e) the form in which a complaint is to be filed under clause (d) of sub-section (1) of section 9;
(f) the other duties to be performed by the Protection Officer under clause of sub‑section (1) of section 9;
(g) the rules regulating registration of service providers under sub‑section (1) of section 10;
(h) the form in which an application under sub‑section (1) of section 12 seeking reliefs under this Act may be made and the particulars which such application shall contain under sub‑section (3) of that section;
(i) the means of serving notices under sub‑section (1) of section 13;
(j) the form of declaration of service of notice to be made by the Protection Officer under sub‑section (2) of section 13;
(k) the qualifications and experience in counselling which a member of the service provider shall possess under sub‑section (1) of section 14;
(l) the form in which an affidavit may be filed by the aggrieved person under sub‑section (2) of section 23;
(m) any other matter which has to be, or may be, prescribed.
(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 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 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.
November 30, 2014
Section 1. SHORT TITLE, EXTENT, COMMENCEMENT AND APPLICATION.
(ACT NO. 1 OF 1986)
An Act to make in public interest, special provisions with a view to securing the timely detection of sick and potentially sick companies owning industrial undertakings, the speedy determination by a Board of experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect to such companies and the expeditious enforcement of the measures so determined and for matters connected therewith or incidental thereto.
Be it enacted by Parliament in the thirty-sixth year of the Republic of India as follows :-
(1) This Act may be called the Sick Industrial Companies (Special Provisions) Act, 1985.
(2) It extends to the whole of India.
(3) It shall come into force on such date 2 as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and any reference in any provision of this Act to the commencement of this Act shall be construed as a reference to the commencement of that provision.
(4) It shall apply, in the first instance, to all the scheduled industries other than the scheduled industry relating to ships and other vessels drawn by power.
(5) The Central Government may, in consultation with the Reserve Bank of India, by notification, apply the provisions of this Act, on and from such date as may be specified in the notification, to the scheduled industry relating to ships and other vessels drawn by power.
Section 2. DECLARATION.
It is hereby declared that this Act is for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution.
Section 3. DEFINITIONS.
(1) In this Act, unless the context. otherwise requires, -
(a) “Appellate Authority” means the Appellate Authority for Industrial and Financial Reconstruction constituted under section 5;
(b) “Board” means the Board for Industrial and Financial Reconstruction established under section, 4;
(c) “Chairman” means the Chairman of the Board or, as the case may be, the Appellate Authority;
(d) “company” means a company as defined in section 3 of the Companies Act, 1956 (1 of 1956);
(da) “date of finalisation of the duly audited accounts” means the date on which the audited accounts of the company are adopted at the annual general meeting of the company;
(e) “industrial company” means a company which owns one or more industrial undertakings;
(f) “Industrial undertakings” means any undertaking pertaining to a scheduled industry carried on in one or more factories by any company but does not include -
(i) an ancillary industrial undertaking as defined in clause (aa) of section 3 of the Industries (Development and Regulation) Act, 1951 (65 of 1951); and
(ii) a small scale industrial undertaking as defined in clause (j) of the aforesaid section 3;
(g) “Member” means a member of the Board or, as the case may be, the Appellate Authority and includes the Chairman thereof;
(ga) “net worth” means the sum total of the paid-up capital and free reserves.
Explanation : For the purposes of this clause, “free reserves” means all reserves credited out of the profits and share premium account but does not include reserves credited out of re-evaluation of assets, write back of depreciation provisions, and amalgamation;
(h) “notification” means a notification published in the Official Gazette;
(i) “operating agency” means any public financial institution, State level institution, scheduled bank or any other person as may be specified by general or special order as its agency by the Board;
(j) “prescribed” means prescribed by rules made under this Act;
(l) “Reserve Bank” means the Reserve Bank of India constituted under section 3 of the Reserve Bank of India Act, 1934 (2 of 1934);
(m) “Scheduled bank” means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934);
(n) “Scheduled industry” means any of the industries specified for the time being in the First Schedule to the Industries (Development and Regulation) Act, 1951 (65 of 1951);
(o) “sick industrial company” means an industrial company (being a company registered for not less than five years) which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth.
Explanation : For the removal of doubts, it is hereby declared that an industrial company existing immediately before the commencement of the Sick Industrial Companies (Special Provisions) Amendment Act, 1993, registered for not less than five years and having at the end of any financial year accumulated losses equal to or exceeding its entire net worth, shall be deemed to be a sick industrial company;
(p) “State level institution” means any of the following institutions, namely :-
(i) State Financial Corporations established under section 3 or section 3A and institutions notified under section 46 of the State Financial Corporations Act 1951 (63 of 1951);
(ii) State Industrial Development Corporations registered under the Companies Act, 1956 (1 of 1956);
(iii) such other institutions, being companies and not being public financial institutions, engaged in the development or financing of industrial undertakings, as the Central Government may, by notification, specify :
Provided that no institution shall be so specified unless not less than fifty-one per cent of the paid-up share capital thereof is held by any State Government or Governments or by any institution or institutions mentioned in sub-clauses (i) and (ii) or partly by one or more public financial institutions or institutions mentioned in sub-clauses (i) and (ii) and partly by one or more State Governments.
(2)(a) Words and expressions used and not defined in this Act shall have the meanings, if any, respectively assigned to them in the Companies Act, 1956 (1 of 1956);
(b) Words and expressions used but not defined either in this Act or in the Companies Act, 1956 (1 of 1956), shall have the meanings, if any, respectively assigned to them in the Industries (Development and Regulation) Act, 1951 (65 of 1951).
(3) Any reference in this Act to any other enactment or any provision thereof, shall, in relation to an area in which such enactment or such provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.
Section 4. ESTABLISHMENT OF BOARD.
(1) With effect from such date as the Central Government may, by notification, appoint, there shall be established a Board to be known as the “Board for Industrial and Financial Reconstruction” to exercise the jurisdiction and powers and discharge the functions and duties conferred or imposed on the Board by or under this Act.
(2) The Board shall consist of a Chairman and not less than two and not more than fourteen other Members, to be appointed by the Central Government.
(3) The Chairman and other Members of the Board shall be persons who are or have been or are qualified to be High Court Judges, or persons of ability, integrity and standing who have special knowledge of, and professional experience of not less than fifteen years in science, technology, economics, banking industry, law, labour matters, industrial finance, industrial management, industrial reconstruction, administration, investment, accountancy, marketing or any other matter, the special knowledge of, or professional experience in which, would in the opinion of the Central Government be useful to the Board.
Section 5. CONSTITUTION OF APPELLATE AUTHORITY.
(1) The Central Government may, by notification, constitute, with effect from such date as may be specified therein, an appellate authority to be called the “Appellate Authority for Industrial and Financial Reconstruction” consisting of a Chairman and not more than three other Members, to be appointed by that Government, for hearing appeals against the orders of the Board under this Act.
(2) The Chairman shall be a person who is or has been a Judge of the Supreme Court or who is or has been a Judge of a High Court for not less than five years.
(3) A Member of the Appellate Authority shall be a person who is or has been a Judge of a High Court or who is or has been an officer not below the rank of a Secretary to the Government of India or who is or has been a Member of the Board for not less than three years.
Section 6. TERM OF OFFICE, CONDITIONS OF SERVICE, ETC., OF CHAIRMAN AND OTHER MEMBERS.
(1) Before appointing any person as the Chairman or other member, the Central Government shall satisfy itself that the person does not and will not, have any such financial or other interest as is likely to affect prejudicially his functions as such Member.
(2) The chairman and every other member shall hold office for such period, not exceeding five years, as may be specified by the Central Government in the order of his appointment, but shall be eligible for reappointment :
Provided that no person shall hold office as the chairman or other member after he has attained the age of sixty-five years.
(3) Notwithstanding anything contained in sub-section (1) a Member may -
(a) by writing under his hand and addressed to the Central Government resign his office at any time;
(b) be removed from his office in accordance with the provisions of section 7.
(4) A vacancy caused by the resignation or removal of the Chairman or any other member under sub-section (3) or otherwise shall be filled by fresh appointment.
(5) In the event of the occurrence of a vacancy in the office of the chairman by reason of his death, resignation or otherwise, such one of the Members, as the Central Government may, by notification, authorise in this behalf shall act as the chairman till the date on which a new Chairman, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.
(6) When the chairman is unable to discharge his functions owing to absence, illness or any other cause, such one of the Members as the chairman may authorise in writing in this behalf shall discharge the functions of chairman, till the date on which the chairman resumes his duties.
(7) The salaries and allowances payable to and the other terms and conditions of service of the chairman and other members shall be such as may be prescribed :
Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairman or any other Member shall be varied to his disadvantage after his appointment.
(8) The Chairman and every other Member shall before entering upon his office, make a declaration of fidelity and secrecy in the form set out in the Schedule.
(9) The Chairman or any other Member ceasing to hold office as such shall not hold any appointment or be connected with the management or administration in any company in relation to which any matter has been the subject-matter of consideration before the Board, or as the case may be, the Appellate Authority, for a period of five years from the date on which he ceased to hold such office.
Section 7. REMOVAL OF MEMBERS FROM OFFICE IN CERTAIN CIRCUMSTANCES.
(1) The Central Government may remove from office any Member, who -
(a) has been adjudged as insolvent, or
(b) has been convicted of an offence, which, in the opinion of the Central Government, involves moral turpitude, or
(c) has become physically or mentally incapable of acting as a Member, 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.
(2) Notwithstanding anything contained in sub-section (1), no member, shall be removed from his office on the ground specified in clause (d) or clause (e) of that sub-section unless the Supreme Court on a reference being made to it in this behalf by the Central Government, has on an enquiry held by it in accordance with such procedure as it may specify in this behalf, reported that the member ought, on such grounds, to be removed.
Section 8. SECRETARY, OFFICERS, AND OTHER EMPLOYEES OF ‘BOARD OR APPELLATE AUTHORITY.
(1) The Central Government shall appoint a Secretary to the Board and a Secretary (by whatever name called) to the Appellate Authority to exercise and perform, under the control of the Chairman, such powers and duties as may be prescribed or as may be specified by the Chairman.
(2) The Central Government may provide the Board and the Appellate Authority with such other officers and employees as may be necessary for the efficient performance of the functions of the Board and the Appellate Authority.
(3) The salaries and allowances payable to and the conditions of service of the Secretary and other officers and employees of the Board and the Appellate Authority shall be such as may be prescribed :
Provided that such Secretary, officer or other employee shall, before entering upon his duties, make a declaration of fidelity and secrecy in the form set out in the Schedule.
Section 9. SALARIES, ETC., BE DEFRAYED OUT OF THE CONSOLIDATED FUND OF INDIA.
The salaries and allowances payable to the Members and the administrative expenses, including salaries, allowances and pension, payable to or in respect of the officers and other employees of the Board and the Appellate Authority shall be defrayed out of the Consolidated Fund of India.
Section 10. VACANCIES, ETC., NOT TO INVALIDATE PROCEEDINGS OF BOARD AND APPELLATE AUTHORITY.
No act or proceeding of the Board or, as the case may be, the Appellate Authority shall be questioned on the ground merely of the existence of any vacancy or defect in the constitution of the Board or the Appellate Authority or any defect in the appointment of a person acting as Member of the Board or the Appellate Authority.
Section 11. MEMBERS AND STAFF OF BOARD AND APPELLATE AUTHORITY TO BE PUBLIC SERVANTS.
The Chairman and other Members and the officers and other employees of the Board and the Appellate Authority shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).
Section 12. CONSTITUTION OF BENCHES OF BOARD OR APPELLATE AUTHORITY.
(1) The jurisdiction, powers and authority of the Board or the Appellate Authority may be exercised by Benches thereof.
(2) The Benches shall be constituted by the Chairman and each Bench shall consist of not less than two Members.
(3) If the Members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and make a reference to the Chairman of the Board or, as the case may be, the Appellate Authority 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 13. PROCEDURE OF BOARD AND APPELLATE AUTHORITY.
(1) Subject to the provisions of this Act, the Board, or, as the case may be, the Appellate Authority, shall have powers to regulate -
(a) the procedure and conduct of the business;
(b) the procedure of the Benches, including the places at which the sittings of the Benches shall be held;
(c) the delegation to one or more members of such powers or functions as the Board or, as the case may be, the Appellate Authority may specify.
(2) In particular and without prejudice to the generality of the foregoing provisions, the powers of the Board, or, as the case may be, the Appellate Authority, shall include the power to determine the extent to which persons interested or claiming to be interested in the subject-matter of any proceeding before it may be allowed to be present or to be heard, either by themselves or by their representatives or to cross-examine witnesses or otherwise to take part in the proceedings.
(3) The Board or the Appellate Authority shall, for the purposes of any inquiry or for any other purpose under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying suits in respect of the following matters, namely :-
(a) the summoning and enforcing the attendance of any witness and examining him on oath;
(b) the discovery and production of document or other material object producible as evidence;
(c) the reception of evidence on affidavit;
(d) the requisitioning of any public record from any court or office;
(e) the issuing of any commission for the examination of witnesses;
(f) any other matter which may be prescribed.
Section 14. PROCEEDINGS BEFORE BOARD OR APPELLATE AUTHORITY TO BE JUDICIAL PROCEEDINGS.
The Board or the Appellate Authority shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974) and every proceeding before the Board or the Appellate Authority 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).
Section 15. REFERENCE TO BOARD.
(1) Where an industrial company has become a sick industrial company, the Board of Directors of the Company, shall, within sixty days from the date of finalisation of the duly audited accounts of the company for the financial year as at the end of which the company has become a sick industrial company, make a reference to the Board for determination of the measures which shall be adopted with respect to the company :
Provided that if the Board of Directors had sufficient reasons even before such finalisation to form the opinion that the company had become a sick industrial company, the Board of Directors shall, within sixty days after it has formed such opinion, make a reference to the Board for the determination of the measures which shall be adopted with respect to the company.
(2) Without prejudice to the provisions of sub-section (1), the Central Government or the Reserve Bank or a State Government or a public financial institution or a State level institution or a scheduled bank may, if it has sufficient reasons to believe that any industrial company has become, for the purposes of this Act, a sick industrial company, make a reference in respect of such company to the Board for determination of the measures which may be adopted with respect to such company :
Provided that a reference shall not be made under this sub-section in respect of any industrial company by -
(a) the government of any State unless all or any of the industrial undertakings belonging to such company are situated in such State;
(b) a public financial institution or a State level institution or a scheduled bank unless it has, by reason of any financial assistance or obligation rendered by it, or undertaken by it, with respect to, such company, an interest in such company.
Section 16. INQUIRY INTO WORKING OF SICK INDUSTRIAL COMPANIES.
(1) The Board may make such inquiry as it may deem fit for determining whether any industrial company has become a sick industrial company -
(a) upon receipt of a reference with respect to such company under section 15; or
(b) upon information received with respect to such company or upon its own knowledge as to the financial condition of the company.
(2) The Board may, If it deems necessary or expedient so to do for the expeditious disposal of an inquiry under sub-section (1), require by order any operating agency to enquire into and make a report with respect to such matter as may be specified in the order.
(3) The Board or, as the case may be the operating agency shall complete its inquiry as expeditiously as possible and endeavour shall be made to complete the inquiry within sixty days from the commencement of the inquiry.
Explanation : For the purposes of this sub section, an inquiry shall be deemed to have commenced upon the receipt by the Board of any reference or information or upon its own knowledge reduced to writing by the Board.
(4) Where the Board deems it fit to make an inquiry or to cause an inquiry to be made into any industrial company under sub-section (1) or, as the case may be, under sub-section (2), it may appoint one or more persons to be a special director or special directors of the company for safeguarding the financial and other interests of the company or in the public interest.
(4A) The Board may issue such directions to a special director appointed under sub-section (4) as it may deem necessary or expedient for proper discharge of his duties.
(5) The appointment of a special director referred to in sub-section (4) shall be valid and effective notwithstanding anything to the contrary contained in the Companies Act, 1956 (1 of 1956) or in any other law for the time being in force or in the memorandum and articles of association or any other instrument relating to the industrial company, and any provision regarding share qualification, age limit, number of directorships, removal from office of directors and such like conditions contained in any such law or instrument aforesaid, shall not apply to any director appointed by the Board.
(6) Any special director appointed under sub-section (4) shall -
(a) hold office during, the pleasure of the Board and may be removed or substituted by any person by order in writing by the Board;
(b) not incur any obligation or liability by reason only of his being a director or for anything done or omitted to be done in good faith in the discharge of his duties as a director or anything in relation thereto;
(c) not be liable to retirement by rotation and shall not be taken into account for computing, the number of directors liable to such retirement;
(d) not be liable to be prosecuted under any law for anything, done or omitted to be done in good faith in the discharge of his duties in relation to the sick industrial company.
Section 18. PREPARATION AND SANCTION OF SCHEMES.
(1) Where an order is made under sub-section (3) of section 17 in relation to any sick industrial company, the operating agency specified in the order shall prepare, as expeditiously as possible and ordinarily within a period of ninety days from the date of such order, a scheme with respect to such company providing for any one or more of the following measures, namely :-
(a) the financial reconstruction of the sick industrial company;
(b) the proper management of the sick industrial company by change in or take over of, management of the sick industrial company;
(c) the amalgamation of -
(i) the sick industrial company with any other company, or
(ii) any other company with the sick industrial company (hereafter in this section, in the case of sub-clause (i), the other company, and in the case of sub-clause (ii), the sick industrial company, referred to as ‘transferee company’);
(d) the sale or lease of a part or whole of any industrial undertaking of the sick industrial company;
(da) the rationalisation of managerial personnel, supervisory staff and workmen in accordance with law;
(e) such other preventive, ameliorative and remedial measures as may be appropriate;
(f) such incidental, consequential or supplemental measures as may be necessary or expedient in connection with or for the purposes of the measures specified in clauses (a) to (e).
(2) The scheme referred to in sub-section (1) may provide for any one or more of the following, namely -
(a) the constitution, name and registered office, the capital, assets, powers, rights, interests, authorities and privileges, duties and obligations of the sick industrial company or, as the case may be, of the transferee company;
(b) the transfer to the transferee company of the business, properties, assets and liabilities of the sick industrial company on such terms and conditions as may be specified in the scheme;
(c) any change in the Board of Directors, or the appointment of new Board of Directors, of the sick industrial company and the authority by whom, the manner in which and the other terms and conditions on which, such change or appointment shall be made and in the case of appointment of a new Board of Directors or of any director, the period for which such appointment shall be made;
(d) the alteration of the memorandum or articles of association of the sick industrial company or, as the case may be, of the transferee company for the purpose of altering the capital structure thereof, or for such other purposes as may be necessary to give effect to the reconstruction or amalgamation;
(e) the continuation by, or against, the sick industrial company or, as the case may be, the transferee company of any action or other legal proceeding, pending against the sick industrial company immediately before the date of the order made under sub-section (3) of section 17;
(f) the reduction of the interest or rights which the shareholders have in the sick industrial company to such extent as the Board considers necessary in the interests of the reconstruction, revival or rehabilitation of the sick industrial company or for the maintenance of the business of the sick industrial company;
(g) the allotment to the shareholders of the sick industrial company, of shares in the sick industrial company or, as the case may be, in the transferee company and where any shareholder claims payment in cash and not allotment of shares, or where it is not possible to allot shares to any shareholder the payment of cash to those shareholders in full satisfaction of their claims -
(i) in respect of their interest in shares in the sick industrial company before its reconstruction or amalgamation; or
(ii) where such interest has been reduced under clause (f) in respect of their interest in shares as so reduced;
(h) any other terms and conditions for the reconstruction or amalgamation of the sick industrial company;
(i) sale of the industrial undertaking of the sick industrial company free from all encumbrances and all liabilities of the company or other such encumbrances and liabilities as may be specified to any person, including a co-operative society formed by the employees of such undertaking and fixing of reserve price for such sale;
(j) lease of the industrial undertaking of the sick industrial company to any person including a co-operative society formed by the employees of such undertaking;
(k) method of sale of the assets of the industrial undertaking of the sick industrial company such as by public auction or by inviting tenders or in any other manner as may be specified and for the manner of publicity therefore;
(l) transfer or issue of the shares in the sick industrial company at the face value or at the intrinsic value which may be at discount value or such other value as may be specified to any industrial company or any person including the executives and employees of the sick industrial company;
(m) such incidental, consequential and supplemental matters as may be necessary to secure that the reconstruction or amalgamation or other measures mentioned in the scheme are fully and effectively carried out.
(3)(a) The scheme prepared by the operating agency shall be examined by the Board and a copy of the scheme with modification, if any, made by the Board shall be sent, in draft to the sick industrial company and the operating agency and in the case of amalgamation, also to any other company concerned, and the Board shall publish or cause to be published the draft scheme in brief in such daily newspapers as the Board may consider necessary, for suggestions and objections, if any, within such period as the Board may specify;
(b) The Board may make such modifications, if any, in the draft scheme as it may consider necessary in the light of the suggestions and objections received from the sick industrial company and the operating agency and also from the transferee company and any other company concerned in the amalgamation and from any shareholder or any creditors or employees of such companies:
Provided that where the scheme relates to amalgamation the said scheme shall be laid before the company other than the sick industrial company in the general meeting for the approval of the scheme by its shareholders and no such scheme shall be proceeded with unless it has been approved, with or without modification, by a special resolution passed by the shareholders of the company other than the sick industrial company.
(4) The scheme shall thereafter be sanctioned, as soon as may be, by the Board (hereinafter referred to as the ‘sanctioned scheme’) and shall come into force on such date as the Board may specify in this behalf :
Provided that different dates may be specified for different provisions of the scheme.
(5) The Board may on the recommendations of the operating agency or otherwise, review any sanctioned scheme and make such modifications as it may deem fit or may by order in writing direct any operating agency specified in the order, having regard to such guidelines as may be specified in the order, to prepare a fresh scheme providing for such measures as the operating agency may consider necessary.
(6) When a fresh scheme is prepared under sub-section (5) the provisions of sub-sections (3) and (4) shall apply in relation thereto as they apply to in relation to a scheme prepared under sub-section (1).
(6A) Where a sanctioned scheme provides for the transfer of any property or liability of the sick industrial company in favour of any other company or person or where such scheme provides for the transfer of any property or liability of any other company or person in favour of the sick industrial company, then, by virtue of, and to the extent provided in, the scheme, on and from the date of coming into operation of the sanctioned scheme or any provision thereof, the property shall be transferred to, and vest in, and the liability shall become the liability of, such other company or person or, as the case may be, the sick industrial company;
(7) The sanction accorded by the Board under sub-section (4) shall be conclusive evidence that all the requirements of this scheme relating to the reconstruction or amalgamation, or any other measure specified therein have been complied with and a copy of the sanctioned scheme certified in writing by an officer of the Board to be a true copy thereof, shall, in all legal proceedings (whether in appeal or otherwise) be admitted as evidence.
(8) On and from the date of the coming into operation of the sanctioned scheme or any provision thereof, the scheme or such provision shall be binding on the sick industrial company and the transferee company, or as the case may be, the other company and also on the shareholders, creditors and guarantors and employees of the said companies.
(9) If any difficulty arises in giving effect to the provisions of the sanctioned scheme, the Board may, on the recommendation of the operating agency or otherwise, by order do anything, not inconsistent with such provisions, which appears to it to be necessary or expedient for the purpose of removing the difficulty.
(10) The Board may, if it deems necessary or expedient so to do, by order in writing, direct any operating agency specified in the order to implement a sanctioned scheme with such terms and conditions and in relation to such sick industrial company as may be specified in the order.
(11) Where the whole of the undertaking of the sick industrial company is sold under a sanctioned scheme, the Board may distribute the sale proceeds to the parties entitled thereto in accordance with the provisions of section 529A and other provisions of the Companies Act, 1956 (1 of 1956).
(12) The Board may monitor periodically the implementation of the sanctioned scheme.
Section 19. REHABILITATION BY GIVING FINANCIAL ASSISTANCE.
(1) Where the scheme relates to preventive, ameliorative, remedial and other measures with respect to any sick industrial company, the scheme may provide for financial assistance by way of loans, advances or guarantees or relief’s or concessions or sacrifices from the Central Government, a State Government, any scheduled bank or other bank, a public financial institution or State level institution or any institution or other authority (any Government bank, institution or other authority required by a scheme to provide for such financial assistance being hereafter in this section referred to as the person required by the scheme to provide financial assistance) to the sick industrial company.
(2) Every scheme referred to in sub-section (1) shall be circulated to every person required by the scheme to provide financial assistance for his consent within a period of sixty days from the date of such circulation or within such further period, not exceeding sixty days, as may be allowed by the Board, and if no consent is received within such period or further period, it shall be deemed that consent has been given.
(3) Where in respect of any scheme the consent referred to in sub-section (2) is given by every person required by the scheme to provide financial assistance, the Board may, as soon as may be, sanction the scheme and from the date of such sanction the scheme shall be binding on all concerned.
(3A) On the sanction of the scheme under sub-section (3), the financial institutions and the banks required to provide financial assistance shall designate by mutual agreement a financial institution and a bank from amongst themselves which shall be responsible to disburse financial assistance by way of loans or advances or guarantees or relief’s or concessions or sacrifices agreed to be provided or granted under the scheme on behalf of all financial institutions and banks concerned.
(3B) The financial institution and the bank designated under sub-section (3A) shall forthwith proceed to release the financial assistance to the sick industrial company in fulfillment of the requirement in this regard.
(4) Where in respect of any scheme consent under sub-section (2) is not given by any person required by the scheme to provide financial assistance, the Board may adopt such other measures, including the winding-up of the sick industrial company, as it may deem fit.
Section 19A. ARRANGEMENT FOR CONTINUING OPERATIONS, ETC., DURING INQUIRY.
(1) At any time before completion of the inquiry under section 16, the sick industrial company or the Central Government or the Reserve Bank or a State Government or a public financial institution or a State level institution or a scheduled bank or any other institution, bank or authority providing or intending to provide any financial assistance by way of loans or advances or guarantees or relief’s or concessions to the sick industrial company may make an application to the Board -
(a) agreeing to an arrangement for continuing the operations of the sick industrial company; or
(b) suggesting a scheme for the financial reconstruction of the sick industrial company.
(2) The Board may, within sixty days of the receipt of the application under sub-section (1), pass such orders thereon as it may deem fit.
Section 20 -WINDING-UP OF SICK INDUSTRIAL COMPANY.
(1) Where the Board, after making inquiry under section 16 and after consideration of all the relevant facts and circumstances and after giving an opportunity of being heard to all concerned parties, is of opinion that the sick industrial company is not likely to make its net worth exceed the accumulated losses within a reasonable time while meeting all its financial obligations and that the company as a result thereof is not likely to become viable in future and that it is just and equitable that the company should be wound up, it may record and forward its opinion to the concerned High Court.
(2) The High Court shall, on the basis of the opinion of the Board, order winding-up of the sick industrial company and may proceed and cause to proceed with the winding-up of the sick industrial company in accordance with the provisions of the Companies Act, 1956 (1 of 1956).
(3) For the purpose of winding-up of the sick industrial company, the High Court may appoint any officer of the operating agency, if the operating agency gives its consent, as the liquidator of the sick industrial company and the officer so appointed shall for the purpose of the winding-up of the sick industrial company be deemed to be, and have all the powers of, the official liquidator under the Companies Act, 1956 (1 of 1956).
(4) Notwithstanding anything contained in sub-section (2) or sub-section (3), the Board may cause to be sold the assets of the sick industrial company in such manner as it may deem fit and forward the sale proceeds to the High Court for orders for distribution in accordance with the provisions of section 529A, and other provisions of the Companies Act, 1956 (1 of 1956).
Related Judgements
GUJARAT TRADE UNION MANCH v. GUJARAT STATE TEXTILE CORPORATION.
FERRO ALLOYS CORPORATION LTD. v. RAJHANS STEEL LTD.
Section 21. OPERATING AGENCY TO PREPARE COMPLETE INVENTORY, ETC.
Where, for the proper discharge of the functions of the Board under this Act, the circumstances so require, the Board may, through any operating agency, cause to be prepared -
(a) with respect to a company, a complete inventory of -
(i) all assets and liabilities of whatever nature;
(ii) all books of account, registers, maps, plans, records, documents of title or ownership of property and all other documents of whatever nature relating thereto;
(b) a list of shareholders and a list of creditors showing separately in the list of creditors, the secured creditors and the unsecured creditors;
(c) a valuation report in respect of the shares and assets in order to arrive at the reserve price for the sale of a part or whole of the industrial undertaking of the company or for fixation of the lease rent or share exchange ratio;
(d) an estimate of reserve price, lease rent or share exchange ratio; and
(e) Performa accounts, where no up-to-date audited accounts, are available.
Section 22. SUSPENSION OF LEGAL PROCEEDINGS, CONTRACTS, ETC.
(1) Where in respect of an industrial company, an inquiry under section 16 is pending, or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956) or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding-up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans, or advance granted to the industrial company shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority.
(2) Where the management of the sick industrial company is taken over or changed in pursuance of any scheme sanctioned under section 18, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956) or any other law or in the memorandum and articles of association of such company or any instrument having effect under the said Act or other law -
(a) it shall not be lawful for the shareholders of such company or any other person to nominate or appoint any person to be a director of the company;
(b) no resolution passed at any meeting of the shareholders of such company shall be given effect to unless approved by the Board :
(3) Where an inquiry under section 16 is pending or any scheme referred to in section 17 is under preparation or during the period of consideration of any scheme under section 18 or where any such scheme is sanctioned there under, for due implementation of the scheme, the Board may by order declare with respect to the sick industrial company concerned that the operation of all or any of the contracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force, to which such sick industrial company is a party or which may be applicable to such sick industrial company immediately before the date of such order, shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising there under before the said date, shall remain suspended or shall be enforceable with such adaptations and in such manner as may be specified by the Board :
Provided that such declaration shall not be made for a period exceeding, two years which may be extended by one year at a time so, however, that the total period shall not exceed seven years in the aggregate.
(4) Any declaration made under sub-section (3) with respect to a sick industrial company shall have effect notwithstanding anything, contained in the Companies Act, 1956 (1 of 1956) or any other law, the memorandum and articles of association of the company or any instrument having, effect under the said Act or other law or any agreement or any decree or order of a court, tribunal, officer or other authority or of any submission, settlement or standing order and accordingly; -
(a) any remedy for the enforcement of any right, privilege, obligation and liability suspended or modified by such declaration, and all proceedings relating thereto pending before any court, tribunal, officer or other authority shall remain stayed or be continued subject to such declaration; and
(b) on the declaration ceasing, to have effect -
(i) any right, privilege, obligation or liability so remaining suspended or modified, shall become revived and enforceable as if the declaration had never been made; and
(ii) any proceeding so remaining stayed shall be proceeded with, subject to the provisions of any law which may then be in force, from the stage which had been reached when the proceedings became stayed.
(5) In computing the period of limitation for the enforcement of any right, privilege, obligation or liability, the period during which it or the remedy for the enforcement thereof remains suspended under this section shall be excluded.
Section 22A. DIRECTION NOT TO DISPOSE OF ASSETS.
The Board may, if it is of opinion that any direction is necessary in the interest of the sick industrial company or creditors or shareholders or in the public interest, by order in writing direct the sick industrial company not to dispose of, except with the consent of the Board, any of its assets -
(a) during the period of preparation or consideration of the scheme under section 18; and
(b) during the period beginning with the recording of opinion by the Board for winding up of the company under sub-section (1) of section 20 and up to commencement of the proceedings relating to the winding up before the concerned High Court.
Section 23. LOSS OF FIFTY PER CENT NET WORTH BY INDUSTRIAL COMPANIES.
(1) If the accumulated losses of an industrial company, as at the end of any financial year (hereinafter referred to as the relevant financial year) have resulted in erosion of fifty per cent or more of its peak net worth during the immediately preceding four financial years, -
(a) the company shall, within a period of sixty days from the date (hereinafter referred to as the relevant date) of finalisation of the duly audited accounts of the company for the relevant financial year -
(i) report the fact of such erosion to the Board; and
(ii) hold a general meeting of the shareholders of the company for considering such erosion;
(b) the board of directors shall, at least twenty-one days before the date on which the meeting under sub-clause (ii) of clause (a) is held, forward, to every member of the company a report as to such erosion and the causes for such erosion;
(c) the company may, by ordinary resolution passed at the meeting, held under clause (a) remove a director (being a director appointed by the members of the company) and fill the vacancy created by such removal, so far as may be, in accordance with the procedure provided in sub-sections (2) to (6) of section 284 of the Companies Act, 1956 (1 of 1956).
(2) A director removed under sub-section (1) shall not be entitled to any compensation or damages for termination of his appointment as director or of any appointment terminating with that as director.
(3) If default is made in complying with the provisions of this section, every director or other officer of the company who is in default shall be punishable with imprisonment which shall not be less than six months but which may extend to two years and with fine.
Section 23A. PROCEEDINGS ON REPORT, ETC. OF LOSS OF FIFTY PER CENT NET WORTH.
(1) Without prejudice to the provisions of clause (a) of sub-section (1) of section 23, the Central Government or the Reserve Bank or a State Government or a public financial institution or a State level institution or a scheduled bank may, if it has sufficient reasons to believe that the accumulated losses of any industrial company have resulted in erosion of fifty per cent or more of its peak net worth during the immediately preceding four financial years, report the fact of such erosion to the Board.
(2) If the Board has, upon information received or upon its own knowledge, reason to believe that the accumulated losses of any industrial company have resulted in erosion of fifty per cent or more of its peak net worth during the immediately preceding four financial years, it may call for such information from that company, as it may deem fit.
(3) Where the Board is of the opinion that an industrial company referred to in sub-section (1) is not likely to make its net worth exceed its accumulated losses within a reasonable time while meeting all its financial obligations, and that the company as a result thereof is not likely to become viable in future, it may require by order an operating agency to inquire into and make a report with respect to such matters as may be specified in the order.
(4) After consideration of the report of the operating agency, the Board may publish or cause to be published a notice in such daily newspapers as the Board may consider necessary, for suggestions and objections, if any, within such period as the Board may specify, as to why the company should not be wound up.
(5) Where the Board, after consideration of the relevant facts and circumstances and after giving an opportunity of being heard to all concerned parties, is of the opinion that the industrial company is not likely to make its net worth exceed the accumulated losses within a reasonable time while meeting all its financial obligations and that the company as a result thereof, is not likely to become viable in future and that it is just and equitable that the company should be wound up, the Board may record and forward its opinion to the concerned High Court in relation to the company as if it were a sick industrial company, and the provisions of sub-sections (2), (3) and (4) of section 20 shall apply accordingly.
Section 23B. POWER OF BOARD TO CALL FOR PERIODIC INFORMATION.
On receipt of a report under sub-clause (i) of clause (a) of sub-section (1) of section 23 or under sub-section (1) of section 23A or upon information or its own knowledge under sub-section (2) of section 23A, the Board may call for any periodic information from the company as to the steps taken by the company to make its net worth exceed the accumulated losses and the company shall furnish such information.
Section 24. MISFEASANCE PROCEEDINGS.
(1) If, in the course of scrutiny or implementation of any scheme or proposal, it appears to the Board that any person who has taken part in the promotion, formation or management of the sick industrial company or its undertaking, including any past or present director, manager or officer or employee of the sick industrial company -
(a) has misapplied or retained, or become liable or accountable for, any money or property of the sick industrial company; or
(b) has been guilty of any misfeasance, malfeasance or non-feasance or breach of trust in relation to the sick industrial company, the Board may, by order, direct him to repay or restore the money or property or any part thereof, with or without interest, as it thinks just, or to contribute such sum to the assets of the sick industrial company or the other person, entitled thereto by way of compensation in respect of the misapplication, retainer, misfeasance or breach of trust, as the Board thinks just and also report the matter to the Central Government for any other action which that Government may deem fit.
(2) If the Board is satisfied on the basis of the information and evidence in its possession with respect to any person who is or was a director or an officer or other employee of the sick industrial company, that such person by himself or along with others had diverted the funds or other property of such company for any purpose other than a bona fide purpose of the company or had managed the affairs of the company in a manner highly detrimental to the interests of the company, the Board shall, by order, direct the public financial institutions, scheduled banks and State level institutions not to provide, during a period of ten years from the date of the order, any financial assistance to such person or any firm of which such person is a partner or any company or other body corporate of which such person is a director (by whatever name called).
(3) No order shall be made by the Board under this section against any person unless such person has been given an opportunity for making his submissions.
(4) This section shall apply notwithstanding that the matter is one for which the person may be criminally liable.
Section 25- APPEAL.
(1) Any person aggrieved by an order of the Board made under this Act may, within forty-five days from the date on which a copy of the order is issued to him, prefer an appeal to the Appellate Authority :
Provided that the Appellate Authority may entertain any appeal after the said period of forty-five days but not after sixty days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) On receipt of an appeal under sub-section (1), the Appellate Authority may, after giving an opportunity to the appellant to be heard, if he so desires, and after making such further inquiry as it deems fit, confirm, modify or set aside the order appealed against or remand the matter to the Board for fresh consideration.
Related Judgements
FERRO ALLOYS CORPORATION LTD. v. RAJHANS STEEL LTD.
Section 26. BAR OF JURISDICTION.
No order passed or proposal made under this Act shall be appeasable except as provided therein and no civil court shall have jurisdiction in respect of any matter Which the Appellate Authority or the Board 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 27. DELEGATION OF POWERS.
The Board may, by general or special order, delegate, subject to such conditions and limitations, if any, as may be specified in the order, to any Member or Secretary or other officer or employee of the Board or other person authorised by the Board to manage any industrial company or industrial undertaking or any operating agency, such powers and duties [except the powers and duties under sub-sections (2) and (4) of section 16, section 17, sub-sections (3) and (4) of section 19, sub-sections (1) and (4) of section 20, sub-section (3) of section 22 and section 24] under this Act as it may deem necessary.
Section 28. RETURNS AND INFORMATION.
(1) The Board shall furnish from time to time to the Central Government such returns as the Central Government may require.
(2) The Board may, for the purpose of efficient discharge of its functions under this Act, collect from, or furnish to, -
(a) the Central Government,
(b) the Reserve Bank,
(c) the scheduled bank or any other bank,
(d) the public financial institution,
(e) the State level institution,
(f) the sick industrial company and in case of amalgamation, the other company, such information as it may consider useful for the purpose in such manner and within such time as it may think fit.
Section 29. POWER TO SEEK THE ASSISTANCE OF CHIEF METROPOLITAN MAGISTRATE AND DISTRICT MAGISTRATE.
(1) The Board or any operating, agency, on being directed by the Board may, in order to take into custody or under its control all property, effects and actionable claims to which a sick industrial company is or appears to be entitled, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any property, books of account or any other documents of such sick industrial company be situate or be found, to take possession thereof, and the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, shall, on such request being made to him, -
(i) take possession of such property, books of account or other documents; and
(ii) cause the same to be entrusted to the Board or the operating agency.
(2) For the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use or cause to be used such force as may, in his opinion, be necessary.
(3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any court or before any authority on any ground whatsoever.
Section 30. PROTECTION OF ACTION TAKEN IN GOOD FAITH.
No suit or other legal proceeding shall lie against the Board or the Appellate Authority or the Chairman or any other member, officer or other employee of the Board or the Appellate Authority, or operating agency or any other person authorised by the Board or the Appellate Authority to discharge any function under this Act for any loss or damage caused or likely to be caused by any action which is in good faith done or intended to be done in pursuance of this Act.
Section 31. SAVING OF PENDING PROCEEDINGS.
Where a receiver or an official liquidator has been appointed in any proceeding pending immediately before the commencement of this Act, in any High Court for winding-up of an industrial company such proceeding shall not abate but continue in that High Court and no proceeding in respect of such industrial company shall lie or be proceeded with further before the Board.
Section 32. EFFECT OF THE ACT ON OTHER LAWS.
(1) The provisions of this Act and of any rules or schemes made there under shall have effect notwithstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 (46 of 1973) and the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) for the time being in force or in the Memorandum or Articles of Association of an industrial company or in any other instrument having effect by virtue of any law other than this Act.
(2) Where there has been under any scheme under this Act an amalgamation of a sick industrial company with another company, the provisions under section 72A of the Income-tax Act, 1961 (43 of 1961), shall, subject to the modifications that the power of the Central Government under that section may be exercised by the Board without any recommendation by the specified authority referred to in that section, apply in relation to such amalgamation as they apply in relation to the amalgamation of a company owning an industrial undertaking with another company.
Section 33. PENALTY FOR CERTAIN OFFENCES.
(1) Whoever violates the provisions of the Act or any scheme or any order of the Board, or the Appellate Authority and whoever makes a false statement or gives false evidence to the Board or the Appellate Authority, shall be punishable with simple imprisonment for a term which may extend to three years and shall also be liable to fine.
(2) No court shall take cognizance of any offence under sub-section (1) except on a complaint in writing of the secretary or any such other officer of the Board or the Appellate Authority or any such officer of an operating agency as may be authorised in this behalf by the Board or the Appellate Authority.
Section 34. OFFENCES BY COMPANIES.
(1) Where any offence, punishable under this Act 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, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where any offence punishable 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; and
(b) “director”, in relation to a firm, means a partner in the firm.
Section 35. POWER TO REMOVE DIFFICULTIES.
If any difficulty arises in giving effect to the provisions of this Act or the rules, scheme or orders made there under, the Central Government may, by notification remove the difficulty :
Provided that no such notification shall be made by the Central Government after the expiry of a period of three years from the date on which this Act receives the assent of the President.
Section 36. POWER TO MAKE RULES.
(1) The Central 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 power, such rules may provide for all or any of the following matters namely :-
(a) the salaries and allowances payable to and other terms and conditions of service of the Chairman and other members under sub-section (7) of section 6;
(b) the powers which may be exercised and the duties which may be performed by the Secretary to the Board or the Appellate Authority under sub-section (1) of section 8;
(c) the restrictions and conditions subject to which officers and employees may be appointed to the Board or the Appellate Authority under sub-section (2) of section 8;
(d) the salaries and allowances and other conditions of service of the Secretary and other officers and employees of the Board or the Appellate Authority under sub-section (3) of section 8;
(e) the additional matters referred to in sub-section (3) of section 13;
(f) any other matter which is required to be, or may be, prescribed.
(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 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 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.
THE SCHEDULE
[See sections 6(8) and 8(3)]
DECLARATION OF FIDELITY AND SECRECY
I, ………… do hereby declare that I will faithfully, truly and to the best of my skills and ability, execute and perform the duties required of me as the Chairman/Member Secretary/other officer or employee of the Board for the Industrial and Financial Reconstruction/The Appellate Authority for the Industrial and Financial Reconstruction and which properly relate to the office or position held by me in or in relation to the said Board/Appellate Authority.
I further declare that I will not communicate or allow to be communicated to any person not legally entitled thereto any information relating to the affairs of the Board/Appellate Authority, nor will I allow any such person to inspect or have access to any books or documents belonging to or in possession of the Board/Appellate Authority or the business of any person having any dealing with the said Board/Appellate Authority.
Signed before me.
Signature
November 30, 2014
Introduction
The origin of the law of Contempt in India can be traced from the English law. In England Superior Courts of record have form early times, exercised the power to commit for contempt persons who scandalized the Court or the Judges. The right of the Indian High Courts to punish for contempt, was in the first instance recognized by the Judicial Committee of the Privy Council which observed that the offence of the contempt of court and the powers of the High Courts to punish it are the same in such courts as in the Supreme Court in England. It also observed that the three chartered contempt. Almost all the High Courts in India, apart form the chartered High Courts have exercised the jurisdiction inherent in a court of record from the very nature of the court itself. It has been judicially accepted throughout India that the jurisdiction was a special one inherent in the very nature of the court.
The fist Indian stature on the law of contempt i.e., the Contempt of Courts Act was passed in 1926. It was enacted to define and limit the powers of certain courts in punishing contempt of courts. When the Contempt of Courts Act, 1926 (XII of 1926) was in existence in British India, various Indian States also had their corresponding enactment. These States were Hyderabad, Madhya Bharat, Mysore, Pepsu, Rajastha, Travancore-Cochin and Saurasjtra. State enactments of the Indian States and the Contempt of Courts Act, 1926 were replaced by the Contempt of Courts Act, 1952 (32 of 1952).
An attempt was made in April, 1960 to introduce in the Lok Sabha a Bill to consolidate and amend the law relating to Contempt of Courts. On an examination of the Bill, government appears to have felt that the law relating to Contempt of Courts in uncertain, undefined and unsatisfactory and that in the light of the constitutional changes which have taken place in the country, it would be advisable to have the entire law on the subject scrutinized by a Special Committee set up for the purpose. In pursuance to that decision a Committee was set up on 29th July, 1961 and it submitted its report on 28th February,1963 to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto.
Joint Select Committee of Parliament on Contempt of Courts went in detail and a new Bill, The Contempt of Courts Bill, 1968 was prepared by the Joint Select Committee.
Statement of objects and reasons
It is generally felt that the existing law relating to contempt of Courts is somewhat uncertain undefined and unsatisfactory. The jurisdiction to punish for contempt touches upon two important fundamental rights of the citizens namely, the right to personal liberty and the right to freedom of expression. It was, therefore, considered advisable to have the entire law on the subject scrutinized by a special committee. In pursuance of this, a Committee was set up in 1961 under the Chairmanship of the late Shri H.N. Sanayal the then Additional Solicitor General. The Committee made a comprehensive examination of the law and problems relating to contempt of Court in the light of the position obtaining in our own country and various foreign countries. The recommendations which the Committee made took note of the importance given to freedom of speech in the Constitution and of the need for safeguarding the status and dignity of Courts and interests of administration of justice.
The recommendations of the Committee have been generally accepted by Government after considering the view expressed on those recommendations by the State Governments, Union Territory Administrations, the Supreme Court, the High Courts and the Judicial Commissioners. The Bill seeks to give effect to the accepted recommendations of the Sanyal Committee.
Act 70 of 1971
The Contempt of Courts Act, 1971 (70 of 1971) was passed by the Parliament in December 1971 and it came into force w.e.f. 24th December, 1971.
List of amending act
The Contempt of Courts (Amendment) Act, 1976 ( 45 of 1976)
Preamble
(24th December, 1971)
An Act to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto.
Section 1. Short title and extent.
Act no. 70 of 1971
AN ACT TO DEFINE AND LIMIT THE POWERS OF CERTAIN COURTS IN P UNISHINGCONTEMPTS O [24th December, 1971]
BE it enacted by Parliament in the Twenty-second Year of the Republic of India as follows :-
(1) This Act may be called the Contempt of Courts Act, 1971.
(2) It extends to the whole of India
Provided that it shall not apply to the State of Jammu and Kashmir except to the extent to which the provisions of this Act relate to contempt of the Supreme Court.
Section 2. Definitions.
In this Act, unless the context otherwise requires -
(a) “Contempt of court” means civil contempt or criminal contempt”
(b) “Civil contempt” means willful disobedience to any judgement, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court.
(c) “Criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-
(d) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding , or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
(a) “High Court” means the High Court for a State or a Union territory and includes the court of the Judicial Commissioner in any Union territory.
Section 3. Innocent publication and distribution of matter not contempt.
(1) A person shall not be guilty of contempt of court on the ground that he has published (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at that time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending.
(2) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, the publication of any such matter as is mentioned in sub-section (1) in connection with any civil or criminal proceeding which is not pending at the time of publication shall not be deemed to constitute contempt of court.
(3) A person shall not be guilty of contempt of court on the ground that he has distributed a publication containing any such matter as is mentioned in sub-section (1), if at the time of distribution he had no reasonable grounds for believing that it contained or was likely to contain any such matter as aforesaid:
Provided that this sub-section shall not apply in respect of the distribution of—
(i) any publication which is a book or paper printed or published otherwise than in conformity with the rules contained in section 3 of the Press and Registration of Books Act, 1867 (25 of 1867);
(ii) any publication which is a newspaper published otherwise than in conformity with the rules contained in section 5 of the said Act.
- —For the purposes of this section, a judicial proceeding—
(a) is said to be pending—
(A) in the case of a civil proceeding, when it is instituted by the filing of a plaint or otherwise,
(B) in the case of a criminal proceeding under the Code of Criminal Procedure, 1898 (5 of 1898)1, or any other law—
(i) where it relates to the commission of an offence, when the charge-sheet or challan is filed, or when the court issues summons or warrant, as the case may be, against the accused, and
(ii) in any other case, when the court takes cognizance of the matter to which the proceeding relates, and
in the case of a civil or criminal proceeding, shall be deemed to continue to be pending until it is heard and finally decided, that is to say, in a case where an appeal or revision is competent, until the appeal or revision is heard and finally decided or, where no appeal or revision is preferred, until the period of limitation prescribed for such appeal or revision has expired;
(b) which has been heard and finally decided shall not be deemed to be pending merely by reason of the fact that proceedings for the execution of the decree, order or sentence passed therein are pending.
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1. Now see Code of Criminal Procedure, 1973 (2 of 1974).
Section 4. Fair and accurate report of judicial proceeding not contempt.
Subject to the provisions contained In section 7, a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any state thereof.
Section 5. Fair criticism of judicial act not contempt.
A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided.
Section 6. Complaint against presiding officers of subordinate courts when not contempt.
A person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presiding officer or any subordinate court to -
(a) Any other subordinate court, or
(b) The High court to which it is subordinate.
Explanation – In this section, ” subordinate court” means any court subordinate to a High court.
Section 7. Publication of information relating to proceeding in chambers or in camera not contempt except in certain cases.
(1) Notwithstanding anything contained in this Act, a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceedings before any court sitting in chambers or in camera except in the following cases, that is to say-
(a) Where the publication is contrary to the provisions of any enactment for the time being in force.
(b) Where the court, on grounds of public policy or in exercise of any power vested in it, expressly prohibits the publication of all information relating to the proceeding or of information of the description which is published.
(c) Where the court sits in chambers or in camera for reason connected with public order or the security of the State, the publication of information relating to those proceedings,
(d) Where the information relates to secret process, discovery or invention which is an issue in the proceedings.
(2) Without prejudice to the provisions contained in sub section (1) a person shall not be guilty of contempt of court for publishing the text or a fair and accurate summary of the whole, or any part, of an order made by a court sitting in chambers or in camera, unless the court has expressly prohibited the publication thereof on grounds of public policy, or for reasons connected with public order or the security of the State, or on the ground that it contains information relating to secret process, discovery or invention, or in exercise of any power vested on it.
Section 8. Other defences not affected.
Nothing contained in this Act shall be construed as Implying that any other defence which would have been a valid defence in any proceedings for contempt of court has ceased to be available merely by reason of the provisions of this Act.
Section 9. Act not to imply enlargement of scope of contempt.
Nothing contained in this Act shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court which not be so punishable apart from this Act.
Section 10. Power of High Court to punish contempt’s of subordinate courts.
Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt’s of courts subordinate to it and it has and exercise in respect of contempt’s of itself.
Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860).
Section 11. Power of High Court to try offences committed or offenders found Outside jurisdiction.
A High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction , and whether the person alleged to be guilty of contempt is within or outside such limits.
Section 12. Punishment for contempt of court.
(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.
Explanation – An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
(2) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub section for any contempt either in respect of itself or of a court subordinate to it.
(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that the he be detained in a civil prison for such period not exceeding six months as it may think fit.
(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person.
Provided that nothing contained in this sub section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.
(5) Notwithstanding anything contained in sub section (4) where the contempt of court referred to therein has been committed by a company and it is provided that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manger, secretary or other officer of the company, such director, manager , secretary or other officer shall also be deemed to be guilty of the be contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.
Explanation – For the purpose of sub sections (4) and (5)-
(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.
Section 13. Contempt’s not punishable in certain cases.
1[13. Contempts not punishable in certain cases.—Notwithstanding anything contained in any law for the time being in force,—
(a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;
(b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.]
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1. Subs. by Act 6 of 2006, sec. 2, for section 13 (w.e.f. 17-3-2006). Section 13, before substitution, stood as under:
“13. Contempts not punishable in certain cases.—Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice:”.
Section 14. Procedure where contempt is in the face of the Supreme Court or a High Court.
(1) When it is alleged, or appears to the Supreme Court or the High Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the court may cause such person to he detained in custody, and, at any time before the rising of the court, on the same day, or as early as possible thereafter, shall -
(a) Cause him to be informed in writing of the contempt with which he is charged.
(b) Afford him an opportunity to make his defence to the charge,
(c) After taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment , to determine the matter of the charge, and
(d) Make such order for the punishment or discharge of such person as may be just.
(2) Notwithstanding anything contained in sub section (1) where a person Charged with contempt under the sub section applies, whether orally or in writing, to have the charge against him tried by some Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, and the court is of opinion that it is practicable to do so and that in that interest of proper administration of justice the application should be allowed, it shall cause the matter to be placed, together with a statement of the facts of the case, before the Chief Justice for such directions as he may think fit to issue as respects the trial thereof.
(3) Notwithstanding anything contained in any other law, in any trial of a person charged with contempt under sub section (1) which is held, in pursuance of a direction given under sub section (2), by a Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, it shall not be necessary for the Judge or Judges in whose presence or hearing the offence is alleged to have been committed to appear as a witness and the statement placed before the Chief Justice under sub section (2) shall be treated as evidence in the case.
(4) Pending the determination of the charge, the court may direct that a person charged with contempt under this section shall be detained in such custody as it may specify.
Provided that the shall be released on bail, of a bond for such sum of money As the court thinks sufficient is executed with or without sureties conditioned that the person charged shall attend at the time and place mentioned in the bond and shall continue t so attend until otherwise directed by the court.
Provided further that the court may, if it thinks fit, instead of taking bail from such person, discharge him on his executing a bond without sureties for his attendance as aforesaid.
Section 15. Cognizance of criminal contempt in other cases.
(1) In the case of a criminal contempt, other than a contempt referred to in section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by—
(a) the Advocate-General, or
(b) any other person, with the consent in writing to the Advocate-General,1[or]
1[(c) in relation to the High Court for the Union territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer.]
(2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.
(3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty.
- —In this section, the expression “Advocate-General” means—
(a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;
(b) in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court has been established;
(c) in relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.
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1. Ins. by Act 45 of 1976, sec. 2 (w.e.f. 30-3-1976).
Section 16. Contempt by judge, magistrate or other person acting judicially.
(1) Subject to the provisions of any law for the time being in force, a judge, magistrate or other persons act in judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable and the provisions of this Act, so far as may be, apply accordingly.
(2) Notwithstanding in this section shall apply to any observations or remarks made by a judge, magistrate or other person act in judicially, regarding a subordinate court in an appeal or revision pending before such judge, magistrate or other person against the order or judgement of the subordinate court.
Section 17. Procedure after cognizance.
(1) Notice of every proceeding under Section 15 shall be served personally on the person charged, unless the court for reasons to be recorded directs otherwise.
(2) The notice shall be accompanied-
(a) In the case of proceedings commenced on a motion, by a copy of the motion as also copies of the affidavits, if any, on which such motion is founded and,
(b) In case of proceedings commenced on a reference by a subordinate court, by a copy of the reference.
(3) The court may, if it is satisfied that a person charged under Section 15 is likely to abscond or keep out of the way to avoid service of the notice, order the attachment of his property of such value or amount as it may deem reasonable.
(4) Every attachment under sub section (3) shall be effected in the manner provided in the code of Civil procedure., 1908 (5 of 1908)1, for the attachment of property in execution of a decree for payment of money, and if , after such attachment, the person charged appears and shows to the satisfaction of the court that he did not abscond or keep out of the way to avoid service of the notice, the court shall order the release of his property from attachment upon such terms as to costs or otherwise as it may think fit.
(5) Any person charged with contempt under Section 15 may file an affidavit in support of this defence, and the court may determine the matter of the charge either on the affidavits filed or after taking such further evidence as may be necessary, and pass such order as the justice of the case requires.
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1. Now see Code of Criminal Procedure, 1973 (2 of 1974).
Section 18. Hearing of cases of criminal contempt to be by Benches.
(1) Every case of criminal contempt under section 15 shall be heard and determined by a Bench of not less than two Judges.
(2) Sub section (1) shall not apply to the court of a judicial commissioner.
Section 19. Appeals.
(1) An appeals shall lie as of right from any order to decision of High Court in the exercise of its jurisdiction to punish for contempt-
(a) Where the order or decision is that of a single judge, to a Bench of not less than two Judges of the Court.
(b) Where the order or decision is that of a Bench, to the Supreme Court.
Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.
(2) Pending any appeal. The appellate court may order that-
(a) The execution of the punishment or order appealed against be suspended
(b) If the appellant is in confinement, he be released on bail, and
(c) The appeal be heard notwithstanding that the appellant has not purged his contempt.
(3) Where any person aggrieved by any order against which an appeal may be filed satisfied the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub section (2).
(4) An appeal under sub section (1) shall be filed-
(a) In the case of an appeal to a Bench of the High Court, within thirty days.
(b) In the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against.
Section 20. Limitation for actions for contempt.
No court shall initiate any proceedings if contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.
Section 21. Act not to apply to Nyaya Panchayatas or other village courts.
Nothing contained in this Act shall apply in relation to contempt of Nyaya Panchayats or other village courts, by whatever name known, for the administration of justice, established under any law.
Section 22. Act to be in addition to, and not in derogation of, other laws relating to contempt.
The provisions of this Act shall be in addition to, and not in derogation of the provision of any other law relating to contempt of courts.
Section 23. Power of Supreme Court and High Court to make rules.
The Supreme Court or, a the case may be, any High Court, may make rules, not inconsistent with the provisions of this Act, providing for any matter relating to its procedure.
Section 24. Repeal.
The Contempt of Courts Act, 1952 (32 of 1952) is hereby repealed.
Rules
Rules to regulate proceedings for contempt to the supreme court, 1975 g.s.r. 142 -
In exercise of the powers under section 23 of the Contempt of Courts Act, 1971 read with article 145 of the Constitution of India and all other powers enabling it in this behalf, the Supreme Court hereby makes, with the approval of the President, the following rules-
1. (1) These Rules may be called the Rules to Regulate Proceedings for contempt of the Supreme Court, 1975.
(2) They shall come into force on the date of their publication in the official Gazette (Note:- Published in the Gazette of India, dated 1st February,1975 and came into force from that date.
2. (1) Where contempt is committed in view or presence or hearing of the Court, the contemnor may be punished by the Court before which it is committed either forthwith or on such date as may be appointed by the Court in that behalf.
(2) Pending the determination of the charge, the Court may direct that the contemnor shall be detained in such custody as it may specify.
Provided that the contemnor may be released on bail on such terms as the Court may direct.
3. In case of contempt other than the contempt referred to in rule 2, the Court may take action.
(a) Suo matu, or
(b) On a petition made by Attorney General, or Solicitor General, or
(c) On a petition made by any person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General.
4. (a) Every petition under Rule 3 (b) or (c) shall contain :-
(i) The name, description and place of residence of the petitioner or petitioners and of the persons charged.
(ii) Nature of the contempt alleged, and such material facts, including the date or dates of commission of the alleged contempt, as may be necessary for the proper determination of the case.
(iii) If a petition has previously been made by him on the same facts, the petitioners shall give the details of the petition previously made and shall also indicate the result thereof.
(b) The Petition shall be supported by an affidavit.
(c) Whether the petitioner relies upon a document or documents in his possession or power, he shall file such document or documents or true copies thereof with the petition.
(d) No court-fee shall be payable on the petition, and on any documents filed in the proceedings.
5. Every petition under rule 3 (b) and (c) shall be posted before the Court for preliminary hearing and for orders as to issue of notice. Upon such hearing, the Court, if satisfied that no prima facie case has been made out for issue of notice, may dismiss the petition, and, if not so satisfied direct that notice of the petition be issued to the contemnor.
6. (1) Notice to the person charged shall be in Form 1. The person charged shall, unless otherwise ordered, appear in person before the Court a directed on the date fixed for hearing of the proceeding, and shall continue to remain present during hearing till the proceeding is finally disposed of by order of the Court
(2) When action is instituted on petition, a copy of the petition along with the annexure and affidavits shall be served upon the person charged.
7. The person charged may file his reply duly supported by an affidavit or affidavits.
8. No further affidavit or document shall be filed except with the leave of the Court.
9. Unless otherwise ordered by the Court, seven copies of the Paper Book shall be prepared in the Registry, one for the petitioner, one for the opposite party and the remaining for the use of the Court. The Paper Book in case shall be prepared at the expense of the Central Government and shall consist of the following documents :-
(i) Petition and affidavits filed by the petitioner,
(ii) A copy of, or a statement relating to, the objectionable matter constituting the alleged contempt.
(iii) Replay and affidavits of the parties.
(iv) Documents filed by the parties.
(v) Any other document which the Registrar may deem fit to include.
10. The Court may direct the Attorney- General or Solicitor- General to appear and assist the Court.
11. (1) The Court may, if it has reason to believe, that the person charged is absconding or is otherwise evading service of notice, or if he fails to appear in person or to continue to remain present in person in pursuance of the notice, direct a warrant bailable or non-bailable for his arrest, addressed to one or more police officers or may order attachment of property. The warrant shall be issued under the signature of the Registrar. The warrant shall be in Form II and shall be executed, as far as may be in the manner provided for execution of warrants under the Code of Criminal Procedure.
(2) The warrant shall be execute by the officer to officers to whom it is directed, and may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.
(3) Where a warrant is to be executed outside the Union Territory of Delhi, the Court may instead of directing such warrant to police officer, forward it to the Magistrate of the District or the Superintendent of Police or Commissioner of Police of the district within which the person charged is believed to be residing. The Magistrate or the police officer to whom the warrant is forwarded shall endorse his name thereon, and cause it to be executed.
(4) Every person who is arrested and detained shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the from the place of arrest to the Court of the Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
12. The court may, either suo motu, or on motion made for that purpose, order the attendance for cross-examination, for a person whose affidavit has been filed in the matter.
13. The court may make orders for the purpose of securing the attendance of any person to be examined as a witness and for discovery of production of any document.
14. The court may pass such orders as it thinks fit including orders as to costs which may recovered as if the order were a decree of the court.
15. Save as otherwise provided by the rules contained herein, the provisions of the Supreme Court Rules, 1966 shall, so far as may be, apply to proceedings in relation to proceedings in contempt under this part.
16. Where a person charged with contempt is adjusted guilty and is sentenced to suffer imprisonment, a warrant of commitment a d detention shall be made out in Form IV under the signature of the Registrar. Every such warrant shall remain in force until it is cancelled by order of the Court on until it is executed. The Superintendent of the Jail shall in pursuance of the order receive the person so adjusted and detain him in custody for the period specified therein, or until further orders.
November 30, 2014
Section 1. Short title, extent, and commencement.
ACT NO. 74 OF 1956
[21st December, 1956.]
An Act to formulate principles for determining when a sale or purchase of goods takes place in the course of inter-State trade or commerce or outside a State or in the course of import into or export from India, to provide for the levy, collection and distribution of taxes on sales of goods in the course of inter-State trade or commerce and to declare certain goods to be of special importance in inter-State trade or commerce and specify the restrictions and conditions to which State laws imposing taxes on the sale or purchase of such goods of special importance shall be subject.
(1) This Act may be called the Central Sales Tax Act, 1956.
(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, and different dates may be appointed for different provisions of this Act.
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1. The words “except the State of Jammu and Kashmir” omitted by Act 5 of 1958, sec. 2 (w.e.f. 13-3-1958).
2. Came into force on 5-1-1957, all sections except section 15, vide S.R.O. 78, dated 4th January, 1957, published in the Gazette of India, Extra., 1957, Pt. II, Sec. 3, p. 57. Section 15 came into force on 1-10-1958, vide G.S.R. 897, dated 23rd September, 1958, published in the Gazette of India, Extra., 1958, Pt. II, Sec. 3 (i), p. 476.
Section 2. DEFINITIONS.
In this Act, unless the context otherwise requires,—
(a) “appropriate State” means—
(i) in relation to a dealer who has one or more places of business situated in the same State, that State;
(ii) in relation to a dealer who has 1[***] places of business situated in different States, every such State with respect to the place or places of business situated within its territory;
2[***]
3[(aa) “business” includes—
(i) any trade, commerce or manufacture, or any adventure or concern in the nature of trade, commerce or manufacture, whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any gain or profit accrues from such trade, commerce, manufacture, adventure or concern; and
(ii) any transaction in connection with or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern;
(ab) “crossing the customs frontiers of India” means crossing in the limits of the area of a customs station in which imported goods or export goods are ordinarily kept before clearance by customs authorities.
Explanation.—For the purposes of this clause, “customs station” and “customs authorities” shall have the same meanings as in the Customs Act, 1962 (52 of 1962);]
4[(b) “dealer” means any person who carries on (whether regularly or otherwise) the business of buying, selling, supplying or distributing goods, directly or indirectly, for cash or for deferred payment, or for commission remuneration or other valuable consideration, and includes—
(i) a local authority, a body corporate, a company, any co-operative society or other society, club, firm, Hindu undivided family or other association of persons which carries on such business;
(ii) a factor, broker, commission agent, del credere agent, or any other mercantile agent, by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of buying, selling, supplying or distributing, goods belonging to any principal whether disclosed or not; and
(iii) an auctioneer who carries on the business of selling or auctioning goods belonging to any principal, whether disclosed or not and whether the offer of the intending purchaser is accepted by him or by the principal or a nominee of the principal.
Explanation 1.—Every person who acts as an agent, in any State, of a dealer residing outside that State and buys, sells, supplies, or distributes, goods in the State or acts on behalf of such dealer as—
(i) a mercantile agent as defined in the Sale of Goods Act, 1930
(3 of 1930), or
(ii) an agent for handling of goods or documents of title relating to goods, or
(iii) an agent for the collection or the payment of the sale price of goods or as a guarantor for such collection or payment,
and every local branch or office in a State of a firm registered outside that State or a company or other body corporate, the principal office or headquarters whereof is outside that State, shall be deemed to be a dealer for the purposes of this Act.
Explanation 2.—A Government which, whether or not in the course of business, buys, sells, supplies or distributes, goods, directly or otherwise, for cash or for deferred payment or for commission, remuneration or other valuable consideration, shall except in relation to any sale, supply or distribution of surplus, un-serviceable or old stores or materials or waste products or obsolete or discarded machinery or parts or accessories thereof, be deemed to be a dealer for the purposes of this Act;]
(c) “declared goods” means goods declared under section 14 to be of special importance in inter-State trade or commerce;
(d) “goods” includes all materials, articles, commodities and all other kinds of movable property, but does not include 5[newspapers] actionable claims, stocks, shares and securities.
5[(dd) “place of business” includes—
(i) in any case where a dealer carries on business through an agent by (whatever name called), the place of business of such agent;
(ii) a warehouse, godown or other place where a dealer stores his goods; and
(iii) a place where a dealer keeps his books of account;
(e) “prescribed” means prescribed by rules made under this Act;
(f) “registered dealer” means a dealer who is registered under section 7;
6[(g) “sale”, with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another for cash or deferred payment or for any other valuable consideration, and includes,—
(i) a transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration;
(ii) a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract;
(iii) a delivery of goods on hire-purchase or any system of payment by instalments;
(iv) a transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration;
(v) a supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration;
(vi) a supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration,
but does not include a mortgage or hypothecation of or a charge or pledge on goods;]
(h) “sale price” means the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in cases where such cost is separately charged:
7[Provided that in the case of a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract, the sale price of such goods shall be determined in the prescribed manner by making such deduction from the total consideration for the works contract as may be prescribed and such price shall be deemed to be the sale price for the purpose of this clause;]
8[(i) “sales tax law” means any law for the time being in force in any State or part thereof which provides for the levy of taxes on the sale or purchase of goods generally or on any specified goods expressly mentioned in that behalf and includes value added tax law, and “general sales tax law” means any law for the time being in force in any State or part thereof which provides for the levy of tax on the sale or purchase of goods generally and includes value added tax law;]
(j) “turnover” used in relation to any dealer liable to tax under this Act means the aggregate of the sale prices received and receivable by him in respect of sales of any goods in the course of inter-State trade or commerce made during any prescribed period 9[and determined in accordance with the provisions of this Act and the rules made thereunder];
7[(ja) “works contract” means a contract for carrying out any work which includes assembling, construction, building, altering, manufacturing, processing, fabricating, erection, installation, fitting out, improvement, repair or commissioning of any movable or immovable property;]
(k) “year”, in relation to a dealer, means the year applicable in relation to him under the general sales tax law of the appropriate State, and where there is no such year applicable, the financial year
Sale price
The definition of ‘sale price’ is in two parts. The first part says that ‘sale price’ means the amount payable to a dealer as consideration for the sale of any goods. The second part which is an inclusive clause, includes any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged. Where the cost of freight is part of the price, it would fall within the first part of the definition and to such a case, the exclusion clause in the second part has no application. So it is exigible tax; Hindustan Sugar Mills Ltd. v. State of Rajasthan, (1979) 43 STC 13 (SC).
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1. The words “one or more” omitted by Act 31 of 1958, sec. 2 (w.e.f. 1-10-1958).
2. Explanation omitted by Act 31 of 1958, sec. 2 (w.e.f. 1-10-1958).
3. Ins. by Act 103 of 1976, sec. 2 (w.e.f. 7-9-1976).
4. Subs, by Act 103 of 1976, sec. 2, for clause (b) (w.e.f. 7-9-1976).
5. Ins. by Act 31 of 1958, sec. 2 (w.e.f. 1-10-1958).
6. Subs. by Act 20 of 2002, sec. 150, for clause (g) (w.e.f. 11-5-2002).
7. Ins. by Act 18 of 2005, sec. 89 (w.e.f. 13-5-2005).
8. Subs.by Act 18 of 2005, sec. 89, for clause (i) (w.e.f. 13-5-2005). Clause (i), before substitution, stood as under:
‘(i) “sales tax law” means any law for the time being in force in any State or part thereof which provides for the levy of taxes on the sale or purchase of goods generally or on any specified goods expressly mentioned in that behalf, and “general sales tax law” means the law for the time being in force in any State or part thereof which provides for the levy of tax on the sale or purchase of goods generally;’.
9. Subs. by Act 28 of 1969, sec. 2, for “and determined in the prescribed manner” (w.r.e.f. 5-1-1957).
Section 3. WHEN IS A SALE OR PURCHASE OF GOODS SAID TO TAKE PLACE IN THE COURSE OF INTER-STATE TRADE OR COMMERCE.
A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase, -
(a) occasions the movement of goods from one State to another; or
(b) is effected by a transfer of documents of title to the goods during their movement from one State to another.
Explanation 1 : Where goods are delivered to a carrier or other bailee for transmission, the movement of the goods shall, for the purposes of clause
(b), be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee.
Explanation 2 : Where the movement of goods commences and terminates in the same State it shall not be deemed to be a movement of goods from one State to another by reason merely of the fact that in the course of such movement the goods pass through the territory of any other State.
Section 4. WHEN IS A SALE OR PURCHASE OF GOODS SAID TO TAKE PLACE OUTSIDE A STATE.
(1) Subject to the provisions contained in section 3, when a sale or purchase of goods is determined in accordance with sub-section (2) to take place inside a State, such sale or purchase shall be deemed to have taken place outside all other States.
(2) A sale or purchase of goods shall be deemed to take place inside a State, if the goods are within the State—
(a) in the case of specific or ascertained goods, at the time the contract of sale is made; and
(b) in the case of unascertained or future goods, at the time of their appropriation to the contract of sale by the seller or by the buyer, whether assent of the other party is prior or subsequent to such appropriation.
Explanation.—Where there is a single contract of sale or purchase of goods situated at more places than one, the provisions of this sub-section shall apply as if there were separate contracts in respect of the goods at each of such places.
Section 5. WHEN IS A SALE OR PURCHASE OF GOODS SAID TO TAKE PLACE IN THE COURSE OF IMPORT OR EXPORT.
(1) A sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India.
(2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India.
1[(3) Notwithstanding anything contained in sub-section (1), the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the course of such export, if such last sale or purchase took place after, and was for the purpose of complying with, the agreement or order for or in relation to such export.]
2[(4) The provisions of sub-section (3) shall not apply to any sale or purchase of goods unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner a declaration duly filled and signed by the exporter to whom the goods are sold in a prescribed form obtained from the prescribed authority.
(5) Notwithstanding anything contained in sub-section (1), if any designated Indian carrier purchases Aviation Turbine Fuel for the purposess of its international flight, such purchase shall be deemed to take place in the course of the export of goods out of the territory of India.
Explanation.—For the purposes of this sub-section, “designated Indian carrier” means any carrier which the Central Government may, by notification in the Official Gazette, specify in this behalf.]
Sale in the course of import
When the bill of lading is endorsed while the consignment is still on the high seas and the sale was in the course of import, as it was effected by transfer of documents to the goods before they had crossed the limits of the customs. The sale was covered by the latter part of section 5 (2) read with section 2 (ab) and as it was in course of import hence not liable to Sales Tax; Minerals and Metals Trading Corporation of India Ltd. v. Sales Tax Officer, (1998) 111 STC 434.
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1. Ins. by Act 103 of 1976, sec. 3 (w.r.e.f. 1-4-1976).
2. Ins. by Act 18 of 2005, sec. 90 (w.e.f. 13-5-2005).
Section 6. LIABILITY TO TAX ON INTER-STATE SALES.
1[(1)] Subject to the other provisions contained in this Act, every dealer shall, with effect from such date2 as the Central Government may, by notification in the Official Gazette, appoint, not being earlier than thirty days from the date of such notification, be liable to pay tax under this Act on all sales 3[of goods other than electrical energy] effected by him in the course of inter-State trade or commerce during any year on and from the date so notified:
4[Provided that a dealer shall not be liable to pay tax under this Act on any sale of goods which, in accordance with the provisions of sub-section (3) of section 5 is a sale in the course of export of those goods out of the territory of India.]
5[(1A) A dealer shall be liable to pay tax under this Act on a sale of any goods effected by him in the course of inter-State trade or commerce notwithstanding that no tax would have been leviable (whether on the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State.]
6[(2) Notwithstanding anything contained in sub-section (1) or sub-section (1A), where a sale of any goods in the course of inter-State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale during such movement effected by a transfer of documents of title to such goods to a registered dealer, if the goods are of the description referred to in sub-section (3) of section 8, shall be exempt from tax under this Act:
Provided that no such subsequent sale shall be exempt from tax under this sub-section unless the dealer effecting the sale furnishes to the prescribed authority in the prescribed manner and within the prescribed time or within such further time as that authority may, for sufficient cause, permit,—
(a) a certificate duly filled and signed by the registered dealer from whom the goods were purchased containing the prescribed particulars in a prescribed form obtained from the prescribed authority; and
(b) if the subsequent sale is made to a registered dealer, a declaration referred to in sub-section (4) of section 8:
Provided further that it shall not be necessary to furnish the declaration referred to in clause (b) of the preceding proviso in respect of a subsequent sale of goods if,—
(a) the sale or purchase of such goods is, under the sales tax law of the appropriate State exempt from tax generally or is subject to tax generally at a rate which is lower than three per cent. or such reduced rate as may be notified by the Central Government, by notification in the Official Gazette, under sub-section (1) of section 8 (whether called a tax or fee or by any other name); and
(b) the dealer effecting such subsequent sale proves to the satisfaction of the authority referred to in the preceding proviso that such sale is of the nature referred to in this sub-section.]
7[(3) Notwithstanding anything contained in this Act, no tax under this Act shall be payable by any dealer in respect of sale of any goods made by such dealer, in the course of inter-State trade or commerce, to any official, personnel, consular or diplomatic agent of—
(i) any foreign diplomatic mission or consulate in India; or
(ii) the United Nations or any other similar international body,
entitled to privileges under any convention or agreement to which India is a party or under any law for the time being in force, if such official, personnel, consular or diplomatic agent, as the case may be, has purchased such goods for himself or for the purposes of such mission, consulate, United Nations or other body.
(4) The provisions of sub-section (3) shall not apply to the sale of goods made in the course of inter-State trade or commerce unless the dealer selling such goods furnishes to the prescribed authority a certificate in the prescribed manner on the prescribed form duly filled and signed by the official, personnel, consular or diplomatic agent, as the case may be.]
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1. Section 6 re-numbered as sub-section (1) of that section by Act 31 of 1958, sec. 3 (w.e.f.1-10-1958).
2. 1st July, 1957, vide S.R.O. 940A, dated 26th March, 1957, published in the Gazette of India, Extra., Pt. II, Sec. 3, p. 1233/1.
3. Ins. by Act 61 of 1972, sec. 2 (w.e.f. 1-4-1973).
4. Ins. by Act 103 of 1976, sec. 4 (w.r.e.f. 1-4-1976).
5. Ins. by Act 28 of 1969, sec. 3 (w.r.e.f. 5-1-1957).
6. Subs. by Act 16 of 2007, sec. 2, for sub-section (2) (w.e.f. 1-4-2007). Earlier sub-section (2) was substituted by Act 61 of 1972, sec. 2 (w.e.f. 1-4-1973) and was amended by Act 25 of 1975, sec. 38 (w.e.f. 1-7-1975). Sub-section (2), before substitution by Act 16 of 2007, stood as under:
“(2) Notwithstanding anything contained in sub-section (1) or sub-section (1A), where a sale of any goods in the course of inter-State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale during such movement effected by a transfer of documents of title to such goods,—
(a) to the Government, or
(b) to a registered dealer other than the Government, if the goods are of the description referred to in sub-section (3) of section 8,
shall be exempt from tax under this Act:
Provided that no such subsequent sale shall be exempt from tax under this sub-section unless the dealer effecting the sale furnishes to the prescribed authority in the prescribed manner and within the prescribed time or within such further time as that authority may, for sufficient cause, permit,—
(a) a certificate duly filled and signed by the registered dealer from whom the goods were purchased containing the prescribed particulars in a prescribed form obtained from the prescribed authority; and
(b) if the subsequent sale is made—
(i) to a registered dealer, a declaration referred to in clause (a) of sub-section (4) of section 8, or
(ii) to the Government, not being a registered dealer, a certificate referred to in clause (b) of section (4) of section 8:
Provided further that it shall not be necessary to furnish the declaration or the certificate referred to in clause (b) of the preceding proviso in respect of a subsequent sale of goods if,—
(a) the sale or purchase of such goods is, under the sales tax law of the appropriate State exempt from tax generally or is subject to tax generally at a rate which is lower than four per cent. (whether called a tax or fee or by any other name); and
(b) the dealer effecting such subsequent sale proves to the satisfaction of the authority referred to in the preceding proviso that such sale is of the nature referred to in clause (a) or clause (b) of this sub-section.”
7. Subs. by Act 18 of 2005, sec. 91, for sub-section (3) (w.e.f. 13-5-2005). Sub-section (3), before substitution, stood as under:
“(3) Notwithstanding anything contained in this Act, if—
(a) any official or personnel of—
(i) any foreign diplomatic mission or consulate in India; or
(ii) the United Nations or any other similar international body,
entitled to privileges under any convention to which India is a party or under any law for the time being in force; or
(b) any consular or diplomatic agent of any mission, the United Nations or other body referred to in sub-clause (i) or sub-clause (ii) of clause (a),
purchases any goods for himself or for the purposes of such mission, United Nations or other body, then, the Central Government may, by notification in the Official Gazette, exempt, subject to such conditions as may be specified in the notification, the tax payable on the sale of such goods under this Act.”
Section 6A. BURDEN OF PROOF, ETC., IN CASE OF TRANSFER OF GOODS CLAIMED OTHERWISE THAN BY WAY OF SALE.
(1) Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority, within the prescribed time or within such further time as that authority may, for sufficient cause, permit, a declaration, duly filled and signed by the principal officer of the other place of business, or his agent or principal, as the case may be, containing the prescribed particulars in the prescribed form obtained from the prescribed authority, along with the evidence of despatch of such goods 2[and if the dealer fails to furnish such declaration, then, the movement of such goods shall be deemed for all purposes of this Act to have been occasioned as a result of sale].
(2) If the assessing authority is satisfied after making such inquiry as he may deem necessary that the particulars contained in the declaration furnished by a dealer under sub-section (1) are true, he may, at the time of, or at any time before, the assessment of the tax payable by the dealer under this Act, make an order to that effect and thereupon the movement of goods to which the declaration related shall be deemed for the purpose of this Act to have been occasioned otherwise than as a result of sale.
Explanation : In this section, “assessing authority”, in relation to a dealer, means the authority for the time being competent to assess the tax payable by the dealer under this Act.
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1. Ins. by Act 61 of 1972, sec. 3 (w.e.f. 1-4-1973).
2. Ins. by Act 20 of 2002, sec. 151 (w.e.f. 11-5-2002).
Section 7. REGISTRATION OF DEALERS.
(1) Every dealer liable to pay tax under this Act shall, within such time as may be prescribed for the purpose, make an application for registration under this Act to such authority in the appropriate State as the Central Government may, by general or special order, specify, and every such application shall contain such particulars as may be prescribed.
1[(2) Any dealer liable to pay tax under the sales tax law of the appropriate State, or where there is no such law in force in the appropriate State or any part thereof, any dealer having a place of business in that State or part, as the case may be, may, notwithstanding that he is not liable to pay tax under this Act, apply for registration under this Act to the authority referred to in sub-section (1), and every such application shall contain such particulars as may be prescribed.
Explanation.—For the purposes of this sub-section, a dealer shall be deemed to be liable to pay tax under the sales tax law of the appropriate State notwithstanding that under such law a sale or purchase made by him is exempt from tax or a refund or rebate of tax is admissible in respect thereof.]
2[(2A) Where it appears necessary to the authority to whom an application is made under sub-section (1) or sub-section (2) so to do for the proper realisation of the tax payable under this Act or for the proper custody and use of the forms referred to in clause (a) of the first proviso to sub-section (2) of section 6 or sub-section (1) of section 6Aor 3[sub-section (4) of section 8], he may, by an order in writing and for reasons to be recorded therein, impose as a condition for the issue of a certificate of registration a requirement that the dealer shall furnish in the prescribed manner and within such time as may be specified in the order such security as may be so specified, for all or any of the aforesaid purposes.]
(3) If the authority to whom an application under sub-section (1) or sub-section (2) is made is satisfied that the application is in conformity with the provisions of this Act and the rules made thereunder 2[and the condition, if any, imposed under sub-section (2A), has been complied with] he shall register the applicant and grant to him a certificate of registration in the prescribed form which shall specify the class or classes of goods for the purposes of sub-section (1) of section 8.
2[(3A) Where it appears necessary to the authority granting a certificate of registration under this section so to do for the proper realisation of tax payable under this Act or for the proper custody and use of the forms referred to in sub-section (3A), he may, at any time while such certificate is in force, by an order in writing and for reasons to be recorded therein, require the dealer, to whom the certificate has been granted, to furnish within such time as may be specified in the order and in the prescribed manner such security, or, if the dealer has already furnished any security in pursuance of an order under this sub-section or sub-section (2A), such additional security, as may be specified in the order, for all or any of the aforesaid purposes.]
4[(3B) No dealer shall be required to furnish any security and sub-section (2A) or any security or additional security under sub-section (3A) unless he has been given an opportunity of being heard.
(3BB) The amount of security which a dealer may be required to furnish under sub-section (2A) or sub-section (3A) or the aggregate of the amount of such security and the amount of additional security which he may be required to furnish under sub-section (3A), by the authority referred to therein shall not exceed—
(a) in the case of a dealer other than a dealer who has made an application, or who has been registered in pursuance of an application, under sub-section (2), a sum equal to the tax payable under this Act, in accordance with the estimate of such authority, on the turnover of such dealer for the year in which such security or, as the case may be, additional security is required to be furnished; and
(b) in the case of a dealer who has made an application, or who has been registered in pursuance of an application, under sub-section (2), a sum equal to the tax leviable under this Act, in accordance with the estimate of such authority on the sales to such dealer in the course of inter-state trade or commerce in the year in which such security or, as the case may be additional security is required to be furnished, had such dealer been not registered under this Act.]
5[(3C) Where the security furnished by a dealer under sub-section (2A) or sub-section (3A) is in the form of a surety bond and the surety becomes insolvent or dies, the dealer shall, within thirty days of the occurrence of any of the aforesaid events, inform the authority granting the certificate of registration and shall within ninety days of such occurence furnish a fresh surety bond or furnish in the prescribed manner other security for the amount of the bond.]
5[(3D) The authority granting the certificate of registration may by order and for good and sufficient cause forfeit the whole or any part of the security furnished by a dealer,—
(a) for realising any amount of tax or penalty payable by the dealer;
(b) if the dealer is found to have misused any of the forms referred to in sub-section (2A) to have failed to keep them in proper custody:
Provided that no order shall be passed under this sub-section without giving the dealer an opportunity of being heard.]
5[(3E) Where by reason of an order under sub-section (3D), the security furnished by any dealer is rendered insufficient, he shall make up the deficiency is such manner and within such time as may be prescribed.]
5[(3F) The authority issuing the forms referred to in sub-section (2A) may refuse to issue such forms to a dealer who has failed to comply with an order under that sub-section or sub-section (3A), or with the provisions of sub-section (3C) or sub-section (3E), until the dealer has complied with such order or such provisions, as the case may be.]
5[(3G) The authority granting a certificate of registration may, on application by the dealer to whom it has been granted, order the refund of any amount or part thereof deposited by the dealer by way of security under this section, if it is not required for the purposes of this Act.]
5[(3H) Any person aggrieved by an order passed under sub-section (2A), sub-section (3A), sub-section (3D) or sub-section (3G) may, within thirty days of the service of the order on him, but after furnishing the security, prefer, in such form and manner as may be prescribed, an appeal against such order to such authority (hereinafter this section referred to as the “appellate authority”) as may be prescribed:
Provided that the appellate authority may, for sufficient cause, permit such person to present the appeal—
(a) after the expiry of the said period of thirty days; or
(b) without furnishing the whole or any part of such security.]
6[(3-I) The procedure to be followed in hearing any appeal under sub-section (3H), and the fees payable in respect of such appeals shall be such as may be prescribed.]
6[(3J) The order passed by the appellate authority in any appeal under sub-section (3H) shall be final.]
7[(4) A certificate of registration granted under this section may—
(a) either on the application of the dealer to whom it has been granted or, where no such application has been made, after due notice to the dealer, be amended by the authority granting it if he is satisfied that by reason of the registered dealer having changed the name, place or nature of his business or the class or classes of goods in which he carries on business or for any other reason the certificate of registration granted to him requires to be amended; or
(b) be cancelled by the authority granting it where he is satisfied, after due notice to the dealer to whom it has been granted, that he has ceased to carry on business 8[or has ceased to exist or has failed without sufficient cause, to comply with an order under sub-section (3A) or with the provisions of sub-section (3C) or sub-section (3E) or has failed to pay any tax or penalty payable under this Act], or in the case of a dealer registered under sub-section (2) has ceased to be liable to pay tax under the sales tax law of the appropriate State or for any other sufficient reason.]
(5) A registered dealer may apply in the prescribed manner not later than
six months before the end of a year to the authority which granted his certificate of registration for the cancellation of such registration, and the authority shall, unless the dealer is liable to pay tax under this Act, cancel the registration accordingly, and where he does so, the cancellation shall take effect from the end of the year.
—————
1. Subs. by Act 31 of 1958, sec. 4, for sub-section (2) (w.e.f. 1-10-1958).
2. Ins. by Act 61 of 1972, sec. 4 (w.e.f. 1-4-1973).
3. Subs. by Act 16 of 2007, sec. 3, for “clause (a) of sub-section (4) of section 8” (w.e.f. 1-4-2007).
4. Subs. by Act 103 of 1976, sec. 5, for sub-section (3B) (w.e.f. 7-9-1976). Earlier sub-section (3B) was inserted by Act 61 of 1972, sec. 4 (w.e.f. 1-4-1973).
5. Ins. by Act 61 of 1972, sec. 4 (w.e.f. 1-4-1973).
6. Ins. by Act 61 of 1972, sec. 4 (w.e.f. 1-4-1973).
7. Subs. by Act 31 of 1958 sec. 4, for sub-section (4) (w.e.f. 1-10-1958).
8. Subs. by Act 61 of 1972, sec. 4, for “or has ceased to exist” (w.e.f. 1-4-1973).
Section 8. RATES OF TAX ON SALES IN THE COURSE OF INTER-STATE TRADE OR COMMERCE.
2[(1) Every dealer, who in the course of inter-State trade or commerce, sells to a registered dealer goods of the description referred to in sub-section (3), shall be liable to pay tax under this Act, which shall be 3[two per cent.] of his turnover or at the rate applicable to the sale or purchase of such goods inside the appropriate State under the sales tax law of that State, whichever is lower:
Provided that the Central Government may, by notification in the Official Gazette, reduce the rate of tax under this sub-section.]
4[(2) The tax payable by any dealer on his turnover in so far as the turnover or any part thereof relates to the sale of goods in the course of inter-State trade or commerce not falling within sub-section (1), shall be at the rate applicable to the sale or purchase of such goods inside the appropriate State under the sales tax law of that State.
Explanation. —For the purposes of this sub-section, a dealer shall be deemed to be a dealer liable to pay tax under the sales tax law of the appropriate State, notwithstanding that he, in fact, may not be so liable under that law.]
5[***]
(3) 6[The goods referred to in sub-section (1)]—
7[***]
(b) 8[***] are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for re-sale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing of goods for sale or 9[in the tele-communications network or] in mining or in the generation or distribution of electricity or any other form of power;
(c) are containers or other materials specified in the certificate of registration of the registered dealer purchasing the goods, being containers or materials intended for being used for the packing of goods for sale;
(d) are containers or other materials used for the packing of any goods or classes of goods specified in the certificate of registration referred to in 10[***] clause (b) or for the packing of any containers or other materials specified in the certificate of registration referred to in clause (c).
11[(4) The provisions of sub-section (1) shall not apply to any sale in the course of inter-State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner a declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority:
Provided that the declaration is furnished within the prescribed time or within such further time as that authority may, for sufficient cause, permit.]
12[(5) Notwithstanding anything contained in this section, the State Government may 13 [on the fulfilment of the requirements laid down in sub-section (4) by the dealer] if it is satisfied that it is necessary so to do in the public interest, by notification in the Official Gazette and subject to such conditions as may be specified therein direct,—
(a) that no tax under this Act shall be payable by any dealer having his place of business in the State in respect of the sales by him, in the course of inter-State trade or commerce, 13[to a registered dealer 14[***]] from any such place of business of any such goods or classes of goods as may be specified in the notification, or that the tax on such sales shall be calculated at such lower rates than those specified in sub-section (1) 15[***] as may be mentioned in the notification;
(b) that in respect of all sales of goods or sales of such classes of goods as may be specified in the notification, which are made, in the course of inter-State trade or commerce 13[to a registered dealer 14[ ***]] by any dealer having his place of business in the State or by any class of such dealers as may be specified in the notification to any person or to such class of persons as may be specified in the notification, no tax under this Act shall be payable or the tax on such sales shall be calculated at such lower rates than those specified in sub-section (1) 15[***] as may be mentioned in the notification.]
16[(6) Notwithstanding anything contained in this section, no tax under this Act shall be payable by any dealer in respect of sale of any goods made by such dealer, in the course of inter-State trade or commerce to a registered dealer for the purpose of setting up, operation, maintenance, manufacture, trading, production, processing, assembling, repairing, reconditioning, re-engineering, packaging or for use as packing material or packing accessories in a unit located in any special economic zone or for development, operation and maintenance of special economic zone by the developer of the special economic zone, if such registered dealer has been authorised to establish such unit or to develop, operate and maintain such special economic zone by the authority specified by the Central Government in this behalf.]
(7) The goods referred to in sub-section (6) shall be the goods of such class or classes of goods as specified in the certificate of registration of the registered dealer referred to in that sub-section.
(8) The provisions of sub-sections (6) and (7) shall not apply to any sale of goods made in the course of inter-State trade or commerce unless the dealer selling such goods furnishes to the 17[prescribed authority referred to in sub-selling such goods furnishes to the 17[prescribed authority referred to in sub-section (4) a declaration in the prescribed manner on the prescribed form obtained from the authority specified by the Central Government under sub-section (6)] in sub-section (5), duly filled in and signed by the registered dealer to whom such goods are sold.
Explanation.— For the purposes of sub-section (6), the expression “special economic zone” has the meaning assigned to it in clause (iii) to Explanation 2 to the proviso to section 3 of the Central Excise Act, 1944 (1 of 1944).]
———-
1. The Act has been extended to Goa, Daman and Diu (with modifications) by Reg. 12 of 1962, sec. 3 and Sch., to Kohima and Mokokchung districts of Nagaland (as in force on 5-8-1971) by Act 61 of 1972, sec. 14 (1) (w.e.f. 30-11-1972). The amendments made to the Act by Act 61 of 1972, came into force in the said districts (w.e.f. 1-4-1973) [ vide sec. 14(2), Act 61 of 1972].
2. Subs. by Act 16 of 2007, sec. 4(a), for sub-section (1) (w.e.f. 1-4-2007). Earlier sub-section (1) was substituted by Act 31 of 1958, sec. 5 (w.e.f. 1-10-1958) and was amended by Act 25 of 1975, sec. 38 (w.e.f. 1-7-1975) and by Act 32 of 2003, sec. 162 (w.e.f. 14-5-2003). Sub-section (1), before substitution by Act 16 of 2007, stood as under:
“(1) Every dealer, who in the course of inter-State trade or commerce—
(a) sells to the Government any goods; or
(b) sells to a registered dealer other than the Government goods of the description referred to in sub-section (3),
shall be liable to pay tax under this Act, with effect from such date as may be notified by the Central Government in the Official Gazette for the purpose, which shall be two per cent. of his turnover or at the rate applicable to the sale or purchase of such goods inside the appropriate State under the sales tax law of that State, or, as the case may be, under any enactment of that State imposing value added tax, whichever is lower:
Provided that the rate of tax payable under this sub-section by a dealer shall continue to be four per cent. of his turnover, until the rate of two per cent. takes effect under this sub-section.”
3. Subs. by S.O. 1277(E), dated 30th May, 2008, for “three per cent.” (w.e.f. 1-6-2008).
4. Subs. by Act 16 of 2007, sec. 4(a), for sub-section (2) (w.e.f. 1-4-2007). Earlier sub-section (2) was substituted by Act 31 of 1958, sec. 5 (w.e.f. 1-10-1958) and was amended by Act 8 of 1963, sec. 2 (w.e.f. 1-4-1963) and by Act 20 of 2002, sec. 152 (w.e.f. 11-5-2002). Earlier sub-section (2), before substitution by Act 16 of 2007, stood as under:
“(2) The tax payable by any dealer on his turnover in so far as the turnover or any part thereof relates to the sale of goods in the course of inter-State trade or commerce not falling within sub-section (1)—
(a) in the case of declared goods, shall be calculated at twice the rate applicable to the sale or purchase of such goods inside the appropriate State;
(b) in the case of goods other than declared goods, shall be calculated at the rate of ten per cent. or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher; and
(c) in the case of goods, the sale or, as the case may be, the purchase of which is, under the sales tax law of the appropriate State, exempt from tax generally shall be nil,
and for the purpose of making any such calculation under clause (a) or clause (b), any such dealer shall be deemed to be a dealer liable to pay tax under the sales tax law of the appropriate State, notwithstanding that he, in fact, may not be so liable under that law.
Explanation.— For the purposes of this sub-section, a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate State if under that law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods.”
5. Sub-section (2A) omitted by Act 20 of 2002, sec. 152 (w.e.f. 11-5-2002). Earlier sub-section (2A) [along with sub-sections (2), (3) and (4)] was substituted by Act 31 of 1958, sec. 5, for sub-sections (1), (2), (3) and (4) (w.e.f. 1-10-1958).
6. Subs. by Act 16 of 2007, sec. 4(b), for “The goods referred to in clause (b) of sub-section (1)” (w.e.f. 1-4-2007).
7. Clause (a) omitted by Act 8 of 1963, sec. 2 (w.e.f. 1-4-1963).
8. Certain words omitted by Act 8 of 1963, sec. 2 (w.e.f. 1-4-1963).
9. Ins. by Act 20 of 2002, sec. 152 (w.e.f. 11-5-2002).
10. The words “clause (a) or” omitted by Act 8 of 1963, sec. 2 (w.e.f. 1-4-1963).
11. Subs. by Act 16 of 2007, sec. 4(c), for sub-section (4) (w.e.f. 1-4-2007). Earlier sub-section (4) was amended by Act 61 of 1972, sec. 5 (w.e.f. 1-4-1973). Sub-seciton (4), before substitution by Act 16 of 2007, stood as under:
“(4) The provisions of sub-section (1) shall not apply to any sale in the course of inter-State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner—
(a) a declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority; or
(b) if the goods are sold to the Government, not being a registered dealer, a certificate in the prescribed form duly filled and signed by a duly authorised officer of the Government:
Provided that the declaration referred to in clause (a) is furnished within the prescribed time or within such further time as that authority may, for sufficient cause, permit.”
12. Subs. by Act 61 of 1972, sec. 5, for sub-section (5) (w.e.f. 1-4-1973).
13. Ins. by Act 20 of 2002, sec. 152 (w.e.f. 11-5-2002).
14. The words “or the Government” omitted by Act 16 of 2007, sec. 4(d) (w.e.f. 1-4-2007).
15. The words “or sub-section (2)” omitted by Act 16 of 2007, sec. 4(d) (w.e.f. 1-4-2007).
16. Subs. by Act 23 of 2004, sec. 118, for sub-section (6) (w.e.f. 10-9-2004). Sub-section (6), before substitution, stood as under:
“(6) Notwithstanding anything contained in this section, no tax under this Act shall be payable by any dealer in respect of sale of any goods made by such dealer, in the course of inter-State trade or commerce to a registered dealer for the purpose of manufacture, production, processing, assembling, repairing, reconditioning, re-engineering, packaging or for use as trading or packing material or packing accessories in an unit located in any special economic zone, if such registered dealer has been authoirsed to establish such unit by the authority specified by the Central Government in this behalf”.
17. Subs. by Act 23 of 2004, sec. 118, for “authority referred to in sub-section (6) a declaration in the prescribed manner on the prescribed form obtained from the authority referred to in sub-section (5)” (w.e.f. 10-9-2004).
Section 8A. DETERMINATION OF TURNOVER.
(1) In determining the turnover of a dealer for the purpose of this Act, the following deductions shall be made from the aggregate of the sale prices, namely : (a) the amount arrived at applying the following formula :
rate of tax × aggregate of sale prices `
_____________________________
100 + rate of tax
PROVIDED that no deduction on the basis of the above formula shall be made if the amount by way of tax collected by a registered dealer, in accordance with the provisions of this Act, has been otherwise deducted from the aggregate of sale prices.
Explanation : Where the turnover of a dealer is taxable at different rates, the aforesaid formula shall be applied separately in respect of each part of the turnover liable to a different rate of tax;
(b) the sale price of all goods returned to the dealer by the purchasers of such goods, -
(i) within a period of three months from the date of delivery of the goods, in the case of goods returned before the 14th day of May, 1966;
(ii) within a period of six months from the date of delivery of the goods in the case of goods returned on or after the 14th day of May, 1966 :
PROVIDED that satisfactory evidence of such return of goods and of refund or adjustment in accounts of the sale price thereof is produced before the authority competent to assess or, as the case may be, reassess the tax payable by the dealer under this Act; and
(c) such other deductions as the Central Government may, having regard to the prevalent market conditions, facility of trade and interests of consumers, prescribe.
(2) Save as otherwise provided in sub-section (1), in determining the turnover of a dealer for the purposes of this Act, no deduction shall be made from the aggregate of the sale prices.
————
1.Ins. by Act 28 of 1969, sec. 5 (w.r.e.f. 5-1-1957).
Section 9. LEVY AND COLLECTION OF TAX AND PENALTIES.
1[9. Levy and collection of tax and penalties.—(1) The tax payable by any dealer under this Act on sales of goods effected by him in the course of inter-State trade or commerce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provision of sub-section (2), in the State from which the movement of the goods commenced:
2[Provided that, in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods and being also a sale which does not fall within sub-section (2) of section 6, the tax shall be levied and collected—
(a) where such subsequent sale has been effected by a registered dealer, in the State from which the registered dealer obtained or, as the case may be, could have obtained, the form prescribed for the purposes of 3[sub-section (4) of section 8] in connection with the purchase of such goods; and
(b) where such subsequent sale has been effected by an unregistered dealer in the State from which such subsequent sale has been effected.]
(2) Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, re-assess, collect and enforce payment of any tax under general sales tax law of the appropriate State shall, on behalf of the Government of India, assess re-assess, collect and enforce payment of tax, including any 4[interest or penalty,] payable by a dealer under this Act as if the tax or 4[interest or penalty] payable by such a dealer under this Act is a tax or 4[interest or penalty] payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, 5[refunds, rebates, penalties,] 6[charging or payment of interest,] compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly:
Provided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, be rules made in this behalf make necessary provision for all or any of the matter specified in this sub-section.
7[(2A) All the 8[provisions relating to offences, interest and penalties] (including provisions relating to penalties in lieu of prosecution for an offence or in addition to the penalties or punishment for an offence but excluding the provisions relating to matters provided for in section 10 and 10A) of the general sales tax law of each State shall, with necessary modifications, apply in relation to the assessment, re-assessment, collection and the enforcement of payment of any tax required to be collected under this Act in such State or in relation to any process connected with such assessment, re-assessment, collection or enforcement of payment as if the tax under this Act were a tax under such sales tax law.]
9[(2B) If the tax payable by any dealer under this Act is not paid in time, the dealer shall be liable to pay interest for delayed payment of such tax and all the provisions for delayed payment of such tax and all the provisions relating to due date for payment of tax, rate of interest for delayed payment of tax, of the general sales tax law of each State, shall apply in relation to due date for payment of tax, rate of interest for delayed payment of tax, and assessment and collection of interest for delayed payment of tax under this Act in such States as if the tax and the interest payable under this Act were a tax and an interest under such sales tax law.]
(3) The proceeds in any financial year of any tax, 10[including any interest or penalty] levied and collected under this Act in any State (other than a Union Territory) on behalf of the Government of India shall be assigned to the State and shall be retained by it; and the proceeds attributable to Union territories shall form part of the Consolidated Fund of India.]
—————
1. Subs. by Act 28 of 1969, sec. 6, for section 9 (w.r.e.f. 5-1-1957). Earlier section 9 was substituted by Act 31 of 1958, sec. 6 (w.e.f. 1-10-1958).
2. Subs. by Act 103 of 1976, sec. 6, for the proviso (w.e.f. 7-9-1976).
3. Subs. by Act 16 of 2007, sec. 5, for “clause (a) of sub-section (4) of section 8” (w.e.f. 1-4-2007).
4. Subs. by Act 10 of 2000, sec. 119, for “penalty” (w.e.f. 12-5-2000).
5. Subs. by Act 61 of 1972, sec. 6, for “refunds, penalties” (w.e.f. 1-4-1973).
6. Ins. by Act 103 of 1976, sec. 6 (w.e.f. 7-9-1976).
7. Ins. by Act 103 of 1976, sec. 6 (w.e.f. 7-9-1976).
8. Subs. by Act 10 of 2000, sec. 119, for “provisions relating to offences and penalties” (w.e.f. 12-5-2000).
9. Ins. by Act 10 of 2000, sec. 119 (w.e.f. 12-5-2000).
10. Subs. by Act 10 of 2000, sec. 119, for “including any penalty” (w.e.f. 12-5-2000).
Section 9A. COLLECTION OF TAX TO BE ONLY BY REGISTERED DEALERS.
19A. COLLECTION OF TAX TO BE ONLY BY REGISTERED DEALERS. No person who is not a registered dealer shall collect in respect of any sale by him of goods in the course of inter-State trade or commerce any amount by way of tax under this Act, and no registered dealer shall make any such collection except in accordance with this Act and the rules made thereunder.
—————
1. Ins. by Act 31 of 1958, sec. 6 (w.e.f. 1-10-1958).
Section 9B. ROUNDING OFF OF TAX, ETC.
19B. ROUNDING OFF OF TAX, ETC.
The amount of tax, interest, penalty, fine or any other sum payable, and the amount of refund due, under the provisions of this Act shall be rounded off to the nearest rupee and, for this purpose, where such amount contains a part of a rupee consisting of paise, then, if such part is fifty paise or more it shall be increased to one rupee and if such part is less than fifty paise, it shall be ignored :
PROVIDED that nothing in this section shall apply for the purpose of collection by a dealer of any amount by way of tax under this Act in respect of any sale by him of goods in the course of inter-State trade or commerce.
———-
1.Ins. by Act 61 of 1972, sec. 7 (w.e.f. 1-4-1973).
Section 10. PENALTIES.
If any person—1[(a) furnishes a 2[***] declaration under sub-section (2) of section 6 or sub-section (1) of section 6A or sub-section (4) 3[or sub-section (8)] of section 8, which he knows, or has reason to believe, to be false; or
(aa) fails to get himself registered as required by section 7 or fails to comply with an order under sub-section (3A) or with the requirements of sub-section 3(C) or sub-section (3E) of that section;]
(b) being a registered dealer, falsely represents when purchasing any class of goods that goods of such class are covered by his certificate of registration; or
(c) not being a registered dealer, falsely represents when purchasing goods in the course of inter-State trade or commerce that he is a registered dealer; or
(d) after purchasing any goods for any of the purposes specified in 4[clause (b) or clause (c) or clause (d)] of sub-section (3) 3[or sub-section (6)] of section 8 fails, without reasonable excuse, to make use of the goods for any such purpose;
(e) has in his possession any form prescribed for the purpose of sub-section (4) 3[or sub-section (8)] of section 8 which has not been obtained by him or by his principal or by his agent in accordance with the provisions of this Act or any rules made thereunder;
5[(f) collects any amount by way of tax in contravention of the provisions contained in section 9A,]
he shall be punishable with simple imprisonment which may extend to six months, or with fine or with both; and when the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues.
—————
1. Subs. by Act 61 of 1972, sec. 8, for clause (a) (w.e.f. 1-4-1973).
2. The words “certificate or” omitted by Act 16 of 2007, sec. 6 (w.e.f. 1-4-2007).
3. Ins. by Act 20 of 2002, sec. 153 (w.e.f. 11-5-2002).
4. Subs. by Act 61 of 1972, sec. 8, for “clause (b)” (w.e.f. 1-4-1973).
5. Ins. by Act 31 of 1958, sec. 7 (w.e.f. 1-10-1958).
Section 10A. IMPOSITION OF PENALTY IN LIEU OF PROSECUTION.
1[10A. Imposition of penalty in lieu of prosecution—2[(1)] If any person purchasing goods is guilty of an offence under clause (b) or clause (c) or clause (d) of section 10, the authority who granted to him or, as the case may be, is competent to grant to him a certificate of registration under this Act may, after giving him a reasonable opportunity of being heard, by order in writing, impose upon him by way of penalty a sum not exceeding one and a half times 3[the tax which would have been levied under sub-section (2) of section 8 in respect of the sale to him of the goods, if the sale had been a sale falling within that sub-section]:
Provided that no prosecution for an offence under section 10 shall be instituted in respect of the same facts on which a penalty has been imposed under this section.]
4[(2) The penalty imposed upon any dealer under sub-section (1) shall be collected by the Government of India in the manner provided in sub-section (2) of section 9—
(a) in the case of an offence falling under clause (b) or clause (d) of section 10, in the State in which the person purchasing the goods obtained the form prescribed for the purposes of 5[sub-section (4) of section 8] in connection with the purchase of such goods;
(b) in the case of an offence falling under clause (c) of section 10, in the State in which the person purchasing the goods should have registered himself if the offence had not been committed.]
—————
1. Ins. by Act 31 of 1958, sec. 8 (w.e.f. 1-10-1958).
2. Section 10A re-numbered as sub-section (1) of that section by Act 28 of 1969, sec. 7 (w.r.e.f. 1-10-1958).
3. Subs. by Act 61 of 1972, sec. 9, for certain words (w.e.f. 1-4-1973).
4. Ins. by Act 28 of 1969, sec. 7 (w.r.e.f. 1-10-1958).
5. Subs. by Act 16 of 2007, sec. 7, for “clause (a) of sub-section (4) of section 8” (w.e.f. 1-4-2007).
Section 11. COGNIZANCE OF OFFENCES.
(1) No court shall take cognizance of any offence punishable under this Act or the rules made there under except with the previous sanction of the government within the local limits of whose jurisdiction the offence has been committed or of such officer of that government as it may, by general or special order, specify in this behalf; and no court inferior to that of a presidency magistrate or a magistrate of the first class shall try any such offence.
(2) All offences punishable under this Act shall be cognizable and bailable.
Section 12. INDEMNITY.
No suit, prosecution or other legal proceeding shall lie against any officer of government for anything which is in good faith done or intended to be done under this Act or the rules made there under.
Section 13. POWER TO MAKE RULES.
(1) The Central Government may, by notification in the Official Gazette, make rules providing for -
(a) the manner in which application for registration may be made under this Act, the particulars to be contained therein, the procedure for the grant of such registration, the circumstances in which registration may be refused and the form in which the certificate of registration may be given;
1[(aa) the manner of determination of the sale price and the deductions from the total consideration for a works contract under the proviso to clause (h) of section 2;]
2[[3(ab)] the form and the manner for furnishing declaration under sub-section (8) of section 8;]
(b) the period of turnover, the manner in which the turnover in relation to the sale of any goods under this Act shall be determined, and the deductions which may be made 4[under clause (c) of sub-section (1) of section 8A] in the process of such determination;
(c) the cases and circumstances in which, and the conditions subject to which, any registration granted under this Act may be cancelled;
5[(d) the form in which and the particulars to be contained in any declaration or certificate to be given under this Act 6[the State of origin of such form or certificate and the time within which any such certificate or declaration shall be produced or furnished];
(e) the enumeration of goods or class of goods used in the manufacture or processing of goods for sale or in mining or in the generation or distribution of electricity or any other form of power;
(f) the matters in respect of which provision may be made under the provision to 7[sub-section (2)] of section 9;
(g) the fees payable in respect of applications under this Act.]
8[(h) the proper functioning of the Authority constituted under section 19;
(i) the salaries and allowances payable to, and the terms and conditions of service of, the Chairman and Members under sub-section (3) of
section 19;
(j) any other matter as may be prescribed.]
9[(2) Every rule made by the Central Government under sub-section (1) 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 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.]
(3) The State Government may make rules, not inconsistent with the provisions of this Act and the rules made under sub-section (1), to carry out the purposes of this Act.
(4) In particular and without prejudice to the powers conferred by sub-section (3), the State Government may make rules for all or any of the following purposes, namely:—
(a) the publication of lists of registered dealers, of the amendments made in such lists from time to time, and the particulars to be contained in such lists;
10[(aa) the manner in which security may be furnished under sub-section (2A) or sub-section (3A) or sub-section (3C) of section 7 and the manner in which and the time within which any deficiency may be made up under sub-section (3E) of that section;]
(b) the form and manner in which accounts relating to sales in the course of inter-State trade or commerce shall be kept by registered dealers;
(c) the furnishing of any information relating to the stocks of goods of purchases, sales and deliveries of books by, any dealer or any other information relating to his business as may be necessary for the purposes of this Act;
(d) the inspection of any books, accounts or documents required to be kept under this Act, the entry into any premises at all reasonable times for the purposes of searching for any such books, accounts or documents kept or suspected to be kept in such premises and the seizure of such books, accounts or documents;
11[(e) the authority from whom, the conditions subject to which and fees subject to payment of which any form of certificate prescribed under clause (a) of the first proviso to sub-section (2) of section 6 or of declaration prescribed under sub-section (1) of section 6A or sub-section (4) of section 8 may be obtained, the manner in which such forms shall be kept in custody and records relating thereto maintained and the manner in which any such form may be used and any such certificate or declaration may be furnished;
(ee) the form and manner in which, and the authority to whom, an appeal may be preferred under sub-section (3H) of section 7, the procedure to be followed in hearing such appeals and the fees payable in respect of such appeals;]
(f) in the case of an Undivided Hindu Family, association, club, society, firm or company or in the case of a person who carries on business as a guardian or trustee or otherwise on behalf of another person, the furnishing of a declaration stating the name of the person who shall be deemed to be the manager in relation to the business of the dealer in the State and the form in which such declaration may be given;
(g) the time within which, the manner in which and 12[the authorities to whom] any change in the ownership of any business or in 13[the name, place or nature] of any business carried on by any dealer shall be furnished.
(5) In making any rule under this section 14[the Central Government or as the case may be, the State Government] may direct that a breach thereof shall be punishable with fine which may extend to five hundred rupees and when the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues.
—————
1. Ins. by Act 18 of 2005, sec. 92 (w.e.f. 13-5-2005).
2. Ins. by Act 20 of 2002, sec. 154 (w.e.f. 11-5-2002).
3. Clause (aa) relettered as clause (ab) by Act 18 of 2005, sec. 92 (w.e.f. 13-5-2005).
4. Ins. by Act 61 of 1972, sec. 10 (w.e.f. 1-4-1973).
5. Subs. by Act 31 of 1958, sec. 9, for clause (d) (w.e.f. 1-10-1958).
6. Ins. by Act 61 of 1972, sec. 10 (w.e.f. 1-4-1973).
7. Subs. by Act 28 of 1969, sec. 8, for “sub-section (3)” (w.r.e.f. 5-1-1957).
8. Ins. by Act 41 of 2001, sec. 2 (w.e.f. 17-3-2005).
9. Subs. by Act 61 of 1972, sec. 10, for sub-section (2) (w.e.f. 1-4-1973).
10. Ins. by Act 61 of 1972, sec. 10 (w.e.f. 1-4-1973).
11. Subs. by Act 61 of 1972, sec. 10, for clause (e) (w.e.f. 1-4-1973).
12. Subs. by Act 31 of 1958, sec. 9, for “the authorities to which” (w.e.f. 1-10-1958).
13. Subs. by Act 31 of 1958, sec. 9, for “the nature” (w.e.f. 1-10-1958).
14. Subs. by Act 61 of 1972, sec. 10, for “the State Government” (w.e.f. 1-4-1973).
Section 14. CERTAIN GOODS TO BE OF SPECIAL IMPORTANCE IN INTER-STATE TRADE OR COMMERCE.
It is hereby declared that the following goods are of special importance in inter-State trade or commerce:—
1[(i) cereals, that is to say,—
(i) paddy (Oryza sativa L.);
(ii) rice (Oryza sativa L.);
(iii) wheat (Triticum vulgar, T. compactum, T. sphaerococcum, T. durum, T. aestivum L. T. dicoccum);
(iv) jowar or milo (Sorghum vulgare Pers);
(v) bajra (Pennisetum typhoideum L.);
(vi) maize (Zea mays D.);
(vii) ragi (eleusine coracana Gaertn.);
(viii) kodon (paspalum scrobiulatum L.);
(ix) kutki (Panicum miliare L.);
(x) barley (Hordeum vulgare L.);]
2[3[(ia)] coal, including coke in all its forms, but excluding charcoal:
Provided that during the period commencing on the 23rd day of February, 1967 and ending with the date of commencement of section 11 of the Central Sales Tax (Amendment) Act, 1972 (61 of 1972) this clause shall have effect subject to the modification that the words “but excluding charcoal” shall be omitted;]
(ii) cotton, that is to say all kinds of cotton (indigenous or imported) in its unmanufactured state, whether ginned or unginned, baled, pressed or otherwise, but not including cotton waste;
4[(iia) cotton fabrics covered under heading Nos. 52.05, 52.06, 52.07, 52.08, 52.09, 52.10, 52.11, 52.12, 58.01, 58.02, 58.03, 58.04, 58.05, 5[58.06,] 59.01, 59.03, 59.05, 59.06, and 60.01 of the Schedule to the Central Exercise Tariff Act, 1985 (5 of 1986);]
6[(iib) cotton yarn, but not including cotton yarn waste;]
7[(iic) crude oil, that is to say, crude petroleum oils and crude oils obtained from bituminous minerals (such as shale, calcareous rock, sand), whatever their composition, whether obtained from normal or condensation oil-deposits or by the destructive distillation of bituminous minerals and whether or not subjected to all or any of the following processes:—
(1) decantation;
(2) de-salting;
(3) dehydration;
(4) stabilisation in order to normalise the vapour pressure;
(5) elimination of very light fractions with a view to returning them to the oil-deposits in order to improve the drainage and maintain the pressure;
(6) the addition of only those hydrocarbons previously recovered by physical methods during the course of the above mentioned processes;
(7) any other minor process (including addition of pour point depressants or flow improvers) which does not change the essential character of the substance;]
8[(iid) Aviation Turbine Fuel sold to an aircraft with a maximum take-off mass of less than forty thousand kilograms operated by scheduled airlines.
Explanation.—For the purposes of this clause, “scheduled airlines” means the airlines which have been permitted by the Central Government to operate any Scheduled air transport service;]
(iii) hides and skins, whether in a raw or dressed state;
9[(iv) iron and steel, that is to say,—
(i) 10[pig iron, sponge iron and] cast iron including 11[ingot moulds, bottom plates], iron scrap, cost iron scrap, runner scrap and iron skull scrap;
(ii) steel semis (ingots, slabs, blooms and billets of all qualities, shapes and sizes);
(iii) skelp bars, tin bars, sheet bars, hoe-bar and sleeper bars;
(iv) steel bars (rounds, rods, squares, flat, octagons and hexagons, plain and ribbed or twisted, in coil form as well as straight lengths;
(v) steel structurals (angles, joists, channels, tees, sheet piling sections, Z-sections or any other rolled sections);
(vi) sheets, hoops, strips and skelp, both black and galvanised, hot and cold rolled plain and corrugated, in all qualities, in straight lengths and in coil form, as rolled and in rivetted condition;
(vii) Plates both plain and chequered in all qualities;
(viii) discs, rings, forgings and steel castings;
(ix) tools, alloy and special steels of any of the above categories;
(x) steel melting scrap in all forms including steel skull, turnings and borings;
(xi) steel tubes, both welded and seamless, of all diameters and lengths including tube fittings;
(xii) tin-plates, both hot dipped and electrolytic and tinfree plates;
(xiii) fish plate bars, bearing plate bars, crossing sleeper bars, fish plates, bearing plates, crossing sleepers and pressed steel sleepers—heavy and light crane rails;
(xiv) wheels, tyres, axles and wheels sets;
(xv) wire rods and wires—rolled, drawn, galvanised, aluminised, tinned or coated such as by copper;
(xvi) defectives, rejects, cuttings, or end pieces of any of the above categories;]
12[(v) jute, that is to say, the fibre extracted from plants belonging to the species Corchorrus capsularies and Corchorus olitorius and the fibre known as mesta or bimli extracted from plants of the species Hibiscus cannabinus and Hibiscus sabdariffa—Varaltissima and the fibre known as Sunn or Sunn-hemp extracted from plants of the species Crotalaria juncea whether baled or otherwise;]
13[(va) liquified petroleum gas for domestic use;]
14[(vi) oilseeds, that is to say,—
(i) groundnut or peanut (Arachis hypogaea);
(ii) sesamum or til (Sesamum orientale);
(iii) cotton seed (Gossypium Spp);
(iv) soyabean (Glycine seja);
(v) rapeseed and mustard—
(1) torta (Brassica campestris var toria);
(2) rai (Brassica juncea);
(3) jamba—taramira (Eruca Satiya);
(4) sarson, yellow and brown (Brassica campestris var sarson);
(5) banarasi rai or true mustard (Brassica nigra);
(vi) linseed (Linum usitatissimum);
(vii) castor (Ricinus communis);
(viii) coconut (i.e., Copra excluding tender coconuts) (cocosnucifera);
(ix) sunflower (Helianthus annus);
(x) nigar seed (Guizotia abyssinica);
(xi) neem, vepa (Azadirachta indica);
(xii) mahua, illupai, ippe (Madhuca indica M. Latifolia, Bassia, Latifolia and Madhuca longifolia syn. M. Longifolia);
(xiii) karanja, pongam, honga (Pongamia pinnata syn. P. Glabra);
(xiv) kusum (Schleichera oleosa, syn. S. Trijuga);
(xv) punna, Undi (Calophyllum inophyllum);
(xvi) kokum (Carcinia indica);
(xvii) sal (Shorea rebusta);
(xviii) tung (Aleurites fordii and A. montana);
(xix) red palm (Elaeis guinensis);
(xx) safflower (Carthanus tinctorius);]
15[(via) pulses, that is to say,—
(i) gram or gulab gram (Cicerarietinum L.);
(ii) tur or arhar (Cajanus cajan);
(iii) moong or green gram (Phaseolus aureus);
(iv) masur or lentil (Lens esculemta Moench, Lens culinarie Medic.);
(v) urad or black gram (Phaseolus mungo);
(vi) moth (Phaseolus aconitifolius Jacq);
(vii) lakh or khesari (Lathyrus sativus L.);]
16[(vii) man-made fabrics covered under heading Nos. 54.08, 54.09, 54.10, 54.11, 54.12, 55.07, 55.08, 55.09, 55.10, 55.11, 55.12, 58.01, 58.02, 58.03, 58.04, 58.05, 17[58.06,] 59.01, 59.02, 59.03, 59.05, 59.06, and 60.01 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986);]
18[(viii) sugar covered under sub-heading Nos. 1701.20, 1701.31, 1701.39, and 1702.11 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986);]
19[***]
20[(x) woven fabrics of wool covered under heading Nos. 51.06, 51.07, 58.01, 58.02, 58.03 and 58.05 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1985);]
21[***]
—————
1. Ins. by Act 103 of 1976, sec. 7 (w.e.f. 7-9-1976).
2. Subs. by Act 61 of 1972, sec. 11, for clause (i) (w.r.e.f. 5-1-1957).
3. Clause (i) re-numbered as clause (ia) by Act 103 of 1976, sec. 7 (w.e.f. 7-9-1976).
4. Subs. by Act 26 of 1988, sec. 85, for item (iia) (w.e.f. 13-5-1988). Earlier item (iia) was inserted by Act 16 of 1957, sec. 3 (w.e.f. 4-6-1957) and was substituted by Act 31 of 1958, sec. 10 (w.e.f. 1-10-1958).
5. Ins. by Act 13 of 1989, sec. 50 (w.e.f. 12-5-1989).
6. Ins. by Act 31 of 1958, sec. 10 (w.e.f. 1-10-1958)
7. Ins. by Act 103 of 1976, sec. 7 (w.e.f. 7-9-1976).
8. Subs. by the Act 22 of 2007, sec. 142, for clause (iid). Earlier clause (iid) was inserted by Act 14 of 2001, sec. 139 (w.e.f. 11-5-2001). Clause (iid), before substitution by the Act 22 of 2007, stood as under:
“(iid) Aviation Turbine Fuel sold to a Turbo-Prop Aircraft.
Explanation.—For the purposes of this clause, “Turbo-Prop Aircraft” means an aircraft deriving thrust, mainly from propeller, which may be driven by either turbine engine or piston engine;”.
9. Subs. by Act 61 of 1972, sec. 11, for clause (iv) (w.e.f. 1-4-1973).
10. Subs. by Act 14 of 2001, sec. 139, for “pig iron and” (w.e.f. 11-5-2001).
11. Subs. by Act 38 of 1978, sec. 3 and Sch. II, for “ingot moulds bottom plates” (w.e.f. 26-11-1978).
12. Subs. by Act 61 of 1972, sec. 11, for clause (v) (w.e.f. 1-4-1973).
13. Ins. by Act 21 of 2006, sec. 71 (w.e.f. 18-4-2006).
14. Subs. by Act 61 of 1972, sec. 11, for clause (vi) (w.e.f. 1-4-1973).
15. Ins. by Act 103 of 1976, sec. 7 (w.e.f. 7-9-1976).
16. Subs. by Act 26 of 1988, sec. 85, for item (vii) (w.e.f. 13-5-1988). Earlier item (vii) was inserted by Act 31 of 1958, sec. 10 (w.e.f. 1-10-1958).
17. Ins. by Act 13 of 1989, sec. 50.
18. Subs. by Act 26 of 1988, sec. 85, for item (viii) (w.e.f. 13-5-1988). Earlier item (viii) was inserted by Act 31 of 1958, sec. 10 (w.e.f. 1-10-1958).
19. Clause (ix) omitted by Act 16 of 2007, sec. 8 (w.e.f. 1-4-2007). Earlier clause (ix) was inserted by Act 31 of 1958, sec. 10 (w.e.f. 1-10-1958) and was substituted by Act 26 of 1988, sec. 85 (w.e.f. 13-5-1988) and was amended by Act 13 of 1989, sec. 50 (w.e.f. 12-5-1989). Clause (ix), before omission by Act 16 of 2007, stood as under:
“(ix) unmanufactured tobacco and tobacco refuse covered under sub-heading No. 2401.00, cigars and cheroots of tobacco covered under heading No. 24.02, cigarettes and cigarillos of tabacco covered under sub-heading Nos. 2403.11, and 2403.21 and other manufactured tobacco covered under sub-heading Nos. 2404.11, 2404.12, 2404.13, 2404.19, 2404.21, 2404.29, 2404.31, 2404.39, 2404.41, 2404.50 and 2404.60 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986);”
20. Subs. by Act 26 of 1988, sec. 85, for item (x) (w.e.f. 13-5-1988). Earlier item (x) was inserted by Act 31 of 1958, sec. 10 (w.e.f. 1-10-1958).
21. Item (xi) omitted by Act 19 of 1968, sec. 43 (w.e.f. 11-5-1968).
Section 15. RESTRICTIONS AND CONDITIONS IN REGARD TO TAX ON SALE OR PURCHASE OF DECLARED GOODS WITHIN A STATE.
Every sales tax law of a State shall, insofar as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely :-
(a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed 2four per cent of the sale or purchase price thereof, and such tax shall not be levied at more than one stage;3[***]
(b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce,4 and tax has been paid under this Act in respect of the sale of such goods in the course of inter-State trade or commerce, the tax levied under such law 5shall be reimbursed to the person making such sale in the course of inter-State trade or commerce in such manner and subject to such conditions as may be provided in any law in force in that State;
6(c) where a tax has been levied under that law in respect of the sale or purchase inside the State of any paddy referred to in sub-clause (i) of clause (i) of section 14, the tax leviable on rice procured out of such paddy shall be reduced by the amount of tax levied on such paddy;
7[(ca) where a tax on sale or purchase of paddy referred to in sub-clause (i) of clause (i) of section 14 is leviable under the law and the rice procured out of such paddy is exported out of India, then, for the purposes of sub-section (3) of section 5, the paddy and rice shall be treated as a single commodity;]
(d) each of the pulses referred to in clause (via) of section 14, whether whole or separated, and whether with or without husk, shall be treated as a single commodity for the purposes of levy of tax under that law.
—————
1. Subs. by Act 31 of 1958, sec. 11, for section 15 (w.e.f. 1-10-1958).
2. Subs. by Act 25 of 1975, sec. 38, for “three per cent.” (w.e.f. 1-7-1975).
3. Certain words omitted by Act 20 of 2002, sec. 155 (w.e.f. 11-5-2002).
4. Subs. by Act 61 of 1972, sec. 12, for “the tax so levied” (w.e.f. 1-4-1973).
5. Subs. by Act 61 of 1972, sec. 12, for “shall be refunded to such person” (w.e.f. 1-4-1973).
6. Ins. by Act 103 of 1976, sec. 8 (w.e.f. 7-9-1976).
7. Ins. by Act 33 of 1996, sec. 87 (w.e.f. 28-9-1996).
Section 16. DEFINITIONS.
In this Chapter, -
(a) “appropriate authority”, in relation to a company, means the authority competent to assess tax on the company;
(b) “company” and “private company” have the meanings respectively assigned to them by clauses (i) and (iii) of sub-section (1) of section 3 of the Companies Act, 1956 (1 of 1956).
—————
*. Sections 16 ins. by Act 61 of 1972, sec. 13 (w.e.f. 1-4-1973).
Section 17. COMPANY IN LIQUIDATION.
(1) Every person, -
(a) who is the liquidator of any company which is being wound up, whether under the orders of a court or otherwise; or
(b) who has been appointed the receiver of any assets of a company, (hereinafter referred to as the liquidator) shall, within thirty days after he has become such liquidator, give notice of his appointment as such to the appropriate authority.
(2) The appropriate authority shall, after making such inquiry or calling for such information as it may deem fit, notify to the liquidator within three months from the date on which he receives notice of the appointment of the liquidator the amount which, in the opinion of the appropriate authority would be sufficient, to provide for any tax which is then, or is likely thereafter to become, payable by the company.
(3) The liquidator shall not part with any of the assets of the company or the properties in his hands until he has been notified by the appropriate authority under sub-section (2) and on being so notified, shall set aside an amount equal to the amount notified and, until he so sets aside such amount, shall not part with any of the assets of the company or the properties in his hands :
PROVIDED that nothing contained in this sub-section shall debar the liquidator from parting with such assets or properties in compliance with any order of a court or for the purpose of the payment of the tax payable by the company under this Act or for making any payment to secured creditors whose debts are entitled under law to priority of payment over debts due to government on the date of liquidation or for meeting such costs and expenses of the winding up of the company as are in the opinion of the appropriate authority reasonable.
(4) If the liquidator fails to give the notice in accordance with sub- section (1) or fails to set aside the amount as required by, or parts with any of the assets of the company or the properties in his hands in contravention of the provisions of sub-section (3), he shall be personally liable for the payment of the tax which the company would be liable to pay:
PROVIDED that if the amount of any tax payable by the company is notified under sub-section (2), the personal liability of the liquidator under this sub-section shall be to the extent of such amount.
(5) Where there are more liquidator than one, the obligations and liabilities attached to the liquidator under this section shall attach to all the liquidators jointly and severally.
(6) The provisions of this section shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force.
—————
*. Sections 17 ins. by Act 61 of 1972, sec. 13 (w.e.f. 1-4-1973).
Section 18. LIABILITY OF DIRECTORS OF PRIVATE COMPANY IN LIQUIDATION.
Notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), when any private company is wound up after the commencement of this Act, and any tax assessed on the company under this Act for any period, whether before or in the course of or after its liquidation, cannot be recovered, then, every person who was a director of the private company at any time during the period for which the tax is due shall be jointly and severally liable for the payment of such tax unless he proves that the non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company.
—————
*. Sections 18 ins. by Act 61 of 1972, sec. 13 (w.e.f. 1-4-1973).
November 30, 2014
Section 1. Short title, extent, and commencement
(1) This Act may be called the Dowry Prohibition Act, 1961.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date 1as the Central Government may, by notification in the Official Gazette, appoint.
——————————-
1. Came into force on 1-7-1961 vide S.O. 1410, dated 20-6-1961.
Section 2. Definition of ‘dowry’.
In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly.
(a) By one party to a marriage to the other party to the marriage, or (b) By the parent of either party to a marriage or by any other person, , to either party to the marriage or to any other person,
at or before 1[or any time after the marriage] 2[in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
3[***]
Explanation II.—The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).
——————————–
1. Subs. by Act 43 of 1986, sec. 2, for “or after the marriage” (w.e.f. 19-11-1986).
2. Subs. by Act 63 of 1984, sec. 2, for certain words (w.e.f. 2-10-1985).
3. Explanation I omitted by Act 63 of 1984, sec. 2 (w.e.f. 2-10-1985).
Section 3. Penalty for giving or taking dowry.
1(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable 2 with imprisonment for a term which shall not be less than 3 five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:]
Provided that the Court may, for a adequate and special reasons to be recorded in he judgment, impose a sentence of imprisonment of a term of less than 4 five years.]
5(2) Nothing is sub section (1) shall apply to, or in relation to, -
(a) Presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf).
(b) Presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf).
Provided that such presents are entered in a list maintained in accordance with the rules made under this Act.
Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given .
—————————————
1. Section 3 re-numbered as sub-section (1) thereof by Act 63 of 1984, sec. 3 (w.e.f. 2-10-1985).
2. Subs. by Act 63 of 1984, sec. 3, for certain words (w.e.f. 2-10-1985).
3. Subs. by Act 43 of 1986, sec. 3, for certain words (w.e.f. 19-11-1986).
4. Subs. by Act 43 of 1986, sec. 3, for “six months” (w.e.f. 19-11-1986).
5. Ins. by Act 63 of 1984, sec. 3 (w.e.f. 2-10-1985).
Section 4. Penalty for demanding dowry.
1 Penalty for demanding dowry.- If any person demands, directly orindirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, 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 may extend to ten thousand rupees.
Provided that the Court may, for a adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.]
——————————————
1. Subs. by Act 63 of 1984, sec. 4, for section 4 (w.e.f. 2-10-1985).
Section 4A. Ban on advertisement .- If any person
(a) Offers through any advertisement in any newspaper, periodical, journal or through any other media, any share in his property or of any money or both as a share in any business or other interest as consideration fore the marriage of his son or daughter or any other relatives.
(b) Prints or published or circulates any advertisement referred to in clause (a),
he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees.
Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than six months.
———————————-
1. Ins. by Act 43 of 1986, sec. 4 (w.e.f. 19-11-1986).
Section 5. Agreement for giving or taking dowry to be void
Any agreement for the giving or taking of dowry shall be void.
Section 6. Dowry to be for the benefit of the wife or her heirs
(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman-
(a) if the dowry was received before marriage, within 1[three months] after the date of marriage; or
(b) if the dowry was received at the time of or after the marriage, within 1[three months] after the date of its receipt; or
(c) if the dowry was received when the woman was a minor, within 1[three months] after she has attained the age of eighteen years,
and pending such transfer, shall hold it in trust for the benefit of the woman.
2[(2) If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefor, 3[or as required by sub-section (3),] he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine
4[which shall not be less than five thousand rupees, but which may extend to ten thousand rupees] or with both.]
(3) Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being:
3[Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall,—
(a)if she has no children, be transferred to her parents; or
(b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children.]
2[(3A) Where a person convicted under sub-section (2) for failure to transfer any property as required by sub-section (1) 3[or sub-section (3)] has not, before his conviction under that sub-section, transferred such property to the woman entitled thereto or, as the case may be, 6[her heirs, parents or children] the Court shall, in addition to awarding punishment under that sub-section, direct, by order in writing, that such person shall transfer the property to such woman or, as the case may be, 6[her heirs, parents or children] within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such Court and paid to such woman or, as the case may be,6[her heirs, parents or children].
(4) Nothing contained in this section shall affect the provisions of section 3 or section 4.
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1. Subs. by Act 63 of 1984, sec. 5, for “one year” (w.e.f. 2-10-1985).
2. Subs. by Act 63 of 1984, sec. 5, for sub-section (2) (w.e.f. 2-10-1985).
3.Ins. by Act 43 of 1986, sec. 5 (w.e.f. 19-11-1986).
4. Subs. by Act 43 of 1986, sec. 5, for certain words (w.e.f. 19-11-1986).
5. Ins. by Act 63 of 1984, sec. 5 (w.e.f. 2-10-1985).
6. Subs. by Act 63 of 1986, sec. 5, for “her heirs” (w.e.f. 19-11-1986).
Section 7. Cognizance of offences
1(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.
(b) No court shall take cognizance of an offence under this Act except upon-
(i) Its own knowledge or a police report of the facts which constitute such offence, or
(ii) A complaint by the person aggrieved by the offence or a parent or other relative of such person, or by nay recognized welfare institution or organisation.
(c) It shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of an offence under this Act.
Explanation – For the purpose of this sub section, “recognized welfare institution or organisation” means a social welfare institution or organisation recognized in this behalf by the Central or State Government.
(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to any offence punishable under this Act.
2(3)Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.]
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1. Subs. by Act 63 of 1984, sec. 6, for section 7 (w.e.f. 2-10-1985).
2. Ins. by Act 43 of 1986, sec. 6 (w.e.f. 19-11-1986).
Section 8. Offence to be cognizable for certain purpose and to be non bailable and non-compoundable
1[8. Offences to be cognizable for certain purposes and to be 2[non-bailable] and non-compoundable.—(1) The Code of Criminal Procedure, 1973 (2 of 1974), shall apply to offences under this Act as if they were cognizable offences—
(a) for the purposes of investigation of such offences; and
(b) for the purposes of matters other than—
(i) matters referred to in section 42 of that Code; and
(ii) the arrest of a person without a warrant or without an order of a Magistrate.
(2) Every offence under this Act shall be 3[non-bailable] and non-compoundable.]
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1. Subs. by Act 63 of 1984, sec. 7, for section 8 (w.e.f. 2-10-1985).
2. Subs. by Act 43 of 1986, sec. 7, for “bailable” (w.e.f. 19-11-1986).
3. Subs. by Act 43 of 1986, sec. 7, for “bailable” (w.e.f. 19-11-1986).
Section 8 A. Burden of proof in certain cases
1[8A. Burden of proof in certain cases.—Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under these sections shall be on him.]
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1. Ins. by Act 43 of 1986, sec. 8 (w.e.f. 19-11-1986).
Section 8 B. Dowry Prohibition Officers
1 Dowry Prohibition Officers -
(1) The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act.
(2) Every Dowry Prohibition Officer shall exercise and perform the
following powers and functions, namely:-
(a) To see that the provisions of this Act are complied with,
(b) To prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry,
(c) To collect such evidences as may be necessary for the prosecution of persons committing offences under the Act, and
(d) To perform such additional functions as may be assigned to him by the State Government, or as may be specified in the rule made under this Act.
(3) The State Government may, by notification in the Official Gazette, confer such powers of a police officer as may be specified in the notification on the Dowry Prohibition Officer who shall exercise such powers subject to such limitations and conditions as may be specified by rules made under this Act.
(4) The State Government may, for the purpose of advising and assisting Dowry Prohibition Officers in the efficient performance of their functions under this Act, appoint an Advisory Board consisting of not more than five social welfare workers (out of whom at least two shall be women) form the area in respect of which such Dowry Prohibition Officer exercise jurisdiction under sub section (1).
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1. Ins. by Act 43 of 1986, sec. 8 (w.e.f. 19-11-1986).
Section 9. Power to make rules
(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purpose of this Act.
1(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for -
(a) The form and manner in which, and the person by whom, any list of presents referred to in such section (2) of section 3 shall be maintained and all other matters connected therewith, and
(b) The better co-ordination of policy and action with respect to the administration of this Act.
2[(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 session or 3[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 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.
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1. Ins. by Act 63 of 1984, sec. 8 (w.e.f. 2-10-1985).
2. Sub-section (2) renumbered as sub-section (3) thereof by Act 63 of 1984, sec. 8 (w.e.f. 2-10-1985).
3. Subs. by Act 20 of 1983, sec. 2 and Sch., for certain words (w.e.f. 15-3-1984).
Section 10. Power of State Government to make rules
(1) The State Government may, by notification in the Official Gazette, 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 :-
(a) The additional functions to be performed by the Dowry Prohibition Officers under sub section (2) of Section 8B.
(b) Limitations and conditions subject to which a Dowry Prohibition Officer may exercise his functions under sub section (3) of section 8B.
(3) Every rule made by the State Government under this section shall be laid as soon as may be after it is made before the State Legislature.
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1. Subs. by Act 43 of 1986, sec. 9, for section 10 (w.e.f. 19-11-1986).
Appendix I
RELEVANT PROVISIONS OF INDIAN PENAL CODE, 1860 AND INDIAN EVIDENCE ACT, 1872
Indian Penal Code, 1860
304B. Dowry Death – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death” and such husband or relatives shall be deemed to have caused her death.
Explanation – For the purposes of this sub section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
Rule
THE DOWRY PROHIBITION (MAINTENANCE OF LIST OF PRESENTS TO THE BRIDE AND BRIDEGROOM ) RULES, 1985
In exercise of the powers conferred by section 9 of the Dowry Prohibition Act, 1961 (28 of 1961), the Central Government hereby makes the following rules, namely :-
1. Short title and commencement – (1) These rules may be called the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985.
(2) They shall come into force on the 2nd day of October, 1985 being the date appointed for the coming into force of the Dowry Prohibition (Amendment) Act, 1984 (63 of 1984).
2. Rules in accordance with which lists of presents are to be maintained – (1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride.
(2) The list of presents which are given at the time of marriage to the bridegroom shall be maintained by the bridegroom.
(3) Every list of presents referred to in sub rule (1) or sub rule (2):
(a) Shall be prepared at the time of the marriage or as soon as possible after the marriage,
(b) Shall be in writing,
(c) Shall contain,-
(i) A brief description of each present,
(ii) The approximate value of the present
(iii) The name of the person who has given the present, and
(iv) Where the person giving the present is related to the bride or bridegroom, a description of such relationship.
(d) Shall be signed by both the bride and the bridegroom.
Explanation 1- Where the bride is unable to sign, she may affix her thumb impression in lieu of her signature after having the list read out to her and obtaining the signature, on the list, of the person who has so read out the particulars contained in the list.
Explanation 2- Where the bridegroom is unable to sign, he may affix his thumb impression in lieu of his signature after having the list read out to him and obtaining the signature, on the list of the person who has so read out the particulars contained in the list.
(4) The bride or the bridegroom may, if she or he so desires obtain on either or both of the lists referred to in sub-rule (1) or sub rule 92) the signature or signatures of any other person or persons present at the time of the marriage.
November 30, 2014
Section 1. SHORT TITLE, EXTENT AND COMMENCEMENT.
(1) This Act may be called the Equal Remuneration Act, 1976.
(2) It extends to the whole of India.
(3) It shall come into force on such date * , not being later than three years from the passing of this Act, as the Central Government may, by notification, appoint and different dates may be appointed for different establishments or employments.
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* Came into force on 8-3-1976, vide S.O. 175(E), dated 6th March, 1976.
Section 2. DEFINITIONS.
In this Act, unless the context otherwise requires, – (a) “appropriate Government” means, -
(i) in relation to any employment carried on by or under the authority of the Central Government or a railway administration, or in relation to a banking company, a mine, oilfield or major port or any corporation established by or under a Central Act, the Central Government, and
(ii) in relation to any other employment, the State Government;
(b) “commencement of this Act” means, in relation to an establishment or employment, the date on which this Act comes into force in respect of that establishment or employment;
(c) “employer” has the meaning assigned to it in clause (f) of section 2 of the Payment of Gratuity Act, 1972 (39 of 1972);
(d) “man” and “woman” mean male and female human beings, respectively, of any age;
(e) “notification” means a notification published in the Official Gazette;
(f) “prescribed” means prescribed by rules made under this Act;
(g) “remuneration” means the basic wage or salary, and any additional emoluments whatsoever payable, either in cash or in kind, to a person employed in respect of employment or work done in such employment, if the terms of the contract of employment, express or implied, were fulfilled;
(h) “same work or work of a similar nature” means work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a woman and the differences, if any, between the skill, effort and responsibility required of a man and those required of woman are not of practical importance in relation to the terms and conditions of employment :
(i) “worker” means a worker in any establishment or employment in respect of which this Act has come into force;
(j) words and expressions used in this Act and not defined but defined in the Industrial Disputes Act, 1947 (14 of 1947), shall have the meanings respectively assigned to them in that Act.
Section 3. ACT TO HAVE OVERRIDING EFFECT.
The provisions of this act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act, or in any instrument having effect under any law for the time being in force.
Section 4. DUTY OF EMPLOYER TO PAY EQUAL REMUNERATION TO MEN AND WOMEN WORKERS FOR SAME WORK OR WORK OF A SIMILAR NATURE.
(1) No employer shall pay to any worker, employed by him in an establishment or employment, remuneration, whether payable in cash or in kind, at rates less favourable than those at which remuneration is paid by him to the workers of the opposite sex in such establishment or employment for performing the same work or work of a similar nature.
(2) No employer shall, for the purpose of complying with the provisions of sub-section (1), reduce the rate of remuneration of any worker.
(3) Where, in an establishment or employment, the rates of remuneration payable before the commencement of this Act for men and women workers for the same work or work of a similar nature are different only on the ground of sex, then the higher (in cases where there are only two rates), or, as the case may be, the highest (in cases where there are more than two rates), of such rates shall be the rate at which remuneration shall be payable, on and from such commencement, to such men and women workers :
Provided that nothing in this sub-section shall be deemed to entitle a worker to the revision of the rate of remuneration payable to him or her with reference to the service rendered by him or her before the commencement of this Act.
Section 5. NO DISCRIMINATION TO BE MADE WHILE RECRUITING MEN AND WOMEN WORKERS.
On and from the commencement of this Act, no employer shall, while making recruitment for the same work or work of a similar nature, 1or in any condition of service subsequent to recruitment such as promotions, training or transfer, make any discrimination against women except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force :
Provided that the provisions of this section shall not affect any priority or reservation for Scheduled Castes or Scheduled Tribes, ex-servicemen, retrenched employees or any other class or category of persons in the matter of recruitment to the posts in an establishment or employment.
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1. Ins. by Act 49 of 1987, sec. 2 (w.e.f. 16-12-1987).
Section 6. ADVISORY COMMITTEE.
(1) For the purpose of providing increasing employment opportunities for women, the appropriate Government shall constitute one or more Advisory Committees to advise it with regard to the extent to which women may be employed in such establishments or employments as the Central Government may, by notification, specify in this behalf.
(2) Every Advisory Committee shall consist of not less than ten persons, to be nominated by the appropriate Government, of which one-half shall be women.
(3) In tendering its advice, the Advisory Committee shall have regard to the number of women employed in the concerned establishment or employment, the nature of work, hours of work, suitability of women for employment, as the case may be, the need for providing increasing employment opportunities for women, including part-time employment and such relevant factors as the Committee may think fit.
(4) The Advisory Committee shall regulate its own procedure.
(5) The appropriate Government may, after considering the advice tendered to it by the Advisory Committee and after giving to the persons concerned in the establishment or employment an opportunity to make representations, issue such directions in respect of employment of women workers, as the appropriate Government may think fit.
Section 7. POWER OF APPROPRIATE GOVERNMENT TO APPOINT AUTHORITIES FOR HEARING AND DECIDING CLAIMS AND COMPLAINTS.
(1) The appropriate Government may, by notification, appoint such officers, not below the rank of a Labour Officer, as it thinks fit to be the authorities for the purpose of hearing and deciding -
(a) complaints with regard to the contravention of any provision of this Act;
(b) claims arising out of non-payment of wages at equal rates to men and women workers for the same work or work of a similar nature; and may, by the same or subsequent notification, define the local limits within which each such authority shall exercise its jurisdiction.
(2) Every complaint or claim referred to in sub-section (1) shall be made in such manner as may be prescribed.
(3) If any question arises as to whether two or more works are of the same nature or of a similar nature, it shall be decided by the authority appointed under sub-section (1).
(4) Where a complaint or claim is made to the authority appointed under sub-section (1) it may, after giving the applicant and the employer an opportunity of being heard, and after such inquiry as it may consider necessary, direct, – (i) in the case of a claim arising out of non-payment of wages at equal rates to men and women workers for the same work or work of a similar nature, that payment be made to the worker of the amount by which the wages payable to him exceed the amount actually paid;
(ii) in the case of complaint, that adequate steps be taken by the employer so as to ensure that there is no contravention of any provision of this Act.
(5) Every authority appointed under sub-section (1) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such authority 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) Any employer or worker aggrieved by any order may be an authority appointed under sub-section (1), on a complaint or claim may, within thirty days from the date of the order, prefer an appeal to such authority as the appropriate Government may, by notification, specify in this behalf, and that authority may, after hearing the appeal, confirm, modify or reverse the order appealed against and no further appeal shall lie against the order made by such authority.
(7) The authority referred to in sub-section (6) may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the period specified in sub-section (6), allow the appeal to be preferred within a further period of thirty days but not thereafter.
(8) The provisions of sub-section (1) of section 33C of the Industrial Disputes Act, 1947 (14 of 1947), shall apply for the recovery of monies due from an employer arising out of the decision of an authority appointed under this section.
Section 8. DUTY OF EMPLOYERS TO MAINTAIN REGISTERS.
On and from the commencement of this Act, every employer shall maintain such registers and other documents in relation to the workers employed by him as may be prescribed.
Section 9. INSPECTORS.
(1) The appropriate Government may, by notification, appoint such persons as it may think fit to be Inspectors for the purpose of making an investigation as to whether the provisions of this Act, or the rules made there under, are being complied with by employers, and may define the local limits within which an Inspector may make such investigation.
(2) Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).
(3) An Inspector may, at any place within the local limits of his jurisdiction, -
(a) enter, at any reasonable time, with such assistance as he thinks fit, any building, factory, premises or vessel;
(b) require any employer to produce any register, muster-roll or other documents relating to the employment of workers, and examine such documents;
(c) take on the spot or otherwise, the evidence of any person for the purpose of ascertaining whether the provisions of this Act are being, or have been, complied with;
(d) examine the employer, his agent or servant or any other person found in charge of the establishment or any premises connected therewith or any person whom the Inspector has reasonable cause to believe to be, or to have been a worker in the establishment;
(e) make copies, or take extracts from, any register or other document maintained in relation to the establishment under this Act.
(4) Any person required by an Inspector to produce any register or other document or to give any information shall comply with such requisition.
Section 10. PENALTIES.
(1) If after the commencement of this Act, any employer, being required by or under the Act, so to do -
(a) omits or fails to maintain any register or other document in relation to workers employed by him, or
(b) omits or fails to produce any register, muster-roll or other document relating to the employment of workers, or
(c) omits or refuses to give any evidence or prevents his agent, servant, or any other person in charge of the establishment, or any worker, from giving evidence, or
(d) omits or refuses to give any information, he shall be punishable1 with simple imprisonment for a term which may extend to one month or with fine which may extend to ten thousand rupees or with both.
(2) If, after the commencement of this Act, any employer – (a) makes any recruitment in contravention of the provisions of this Act, or
(b) makes any payment of remuneration at unequal rates to men and women workers, for the same work or work of a similar nature, or
(c) makes any discrimination between men and women workers in contravention of the provisions of this Act, or
(d) omits or fails to carry out any direction made by the appropriate Government under sub-section (5) of section 6, he shall be punishable 2with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with imprisonment for a term which shall be not less than three months but which may extend to one year or with both for the first offence, and with imprisonment which may extend to two years for the second and subsequent offences.
(3) If any person being required so to do, omits or refuses to produce to an Inspector any register or other document or to give any information, he shall be punishable with fine which may extend to five hundred rupees.
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1. Subs. by Act 49 of 1987, sec. 3, for “with fine which may extend to one thousand rupees” (w.e.f. 16-12-1987).
2. Subs. by Act 49 of 1987, sec. 3, for “with fine which may extend to five thousand rupees” (w.e.f. 16-12-1987).
Section 11. OFFENCES BY COMPANIES.
(1) Where an offence under this Act 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, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act 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 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; and
(b) “director”, in relation to a firm, means a partner in the firm.
Section 12. COGNIZANCE AND TRIAL OF OFFENCES.
1[12. Cognizance and trial of offences. (1) No court inferior to that of a metropolitan magistrate or judicial Magistrate of the first class shall try any offence punishable under this Act.
(2) No court shall take cognizance of an offence punishable under this Act except upon -
(a) its own knowledge or upon a complaint made by the appropriate Government or an officer authorised by it in this behalf, or
(b) a complaint made by the person aggrieved by the offence or by any recognised welfare institution or organisation.
Explanation : For the purposes of this sub-section “recognised welfare institution or organisation” means a social welfare institution or organisation recognised in this behalf by the Central or State Government.
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1. Subs. by Act 49 of 1987, sec. 4, for section 12 (w.e.f. 16-12-1987).
Section 13. POWER TO MAKE RULES.
-(1) The Central 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 power, such rules may provide for all or any of the following matters, namely:-
(a) the manner in which complaint or claim referred to in sub-section (1) of section 7 shall be made;
(b) registers and other documents which an employer is required under section 8 to maintain in relation to the workers employed by him;
(c) any other matter which is required to be, or may be, prescribed.
(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 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 14. POWER OF CENTRAL GOVERNMENT TO GIVE DIRECTIONS.
The Central Government may give directions to a State Government as to the carrying into execution of this Act in the State.
Section 15. ACT NOT TO APPLY IN CERTAIN SPECIAL CASES.
Nothing in this Act shall apply -
(a) to cases affecting the terms and conditions of a woman’s employment in complying with the requirements of any law giving special treatment to women, or
(b) to any special treatment accorded to women in connection with -
(i) the birth or expected birth of a child, or
(ii) the terms and conditions relating to retirement, marriage or death or to any provision made in connection with the retirement, marriage or death.
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1. Subs. by Act 49 of 1987, sec. 5, for section 15 (w.e.f. 16-12-1987).
Section 16. POWER TO MAKE DECLARATION.
Where the appropriate Government is, on a consideration of all the circumstances of the case, satisfied that the differences in regard to the remuneration, or a particular species of remuneration, of men and women workers in any establishment or employment is based on a factor other than sex, it may, by notification, make a declaration to that effect, and any act of the employer attributable to such a difference shall not be deemed to be contravention of any provision of this Act.
Section 17. POWER TO REMOVE DIFFICULTIES.
If any difficulty arises in giving effect to the provisions of this Act the Central Government may, by notification, make any order, not inconsistent with the provisions of this Act, which appears to it to be necessary for the purpose of removing the difficulty:
Provided that every such order shall, as soon as may be after it is made, be laid before each House of Parliament.
Section 18. REPEAL AND SAVING.
(1) The Equal Remuneration Ordinance, 1975 (12 of 1975), is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the Ordinance so repealed (including any notification, nomination, appointment, order or direction made there under) shall be deemed to have been done or taken under the corresponding provisions of this Act as if this Act were in force when such thing was done or action was taken.
November 30, 2014
Chapter I: PRELIMINARY
Section 1. Short title, extent and commencement.
(1) This Act may be called The Immoral Traffic (Prevention) Act, 1956.
(2) It extends to the whole of India.
(3) This section shall come into force at once; and the remaining provisions of this come into force on such date as the Central Government may, by notification in the official Gazette appoint.
Section 2. Definitions.
In this Act, unless the context otherwise requires-
(a) “Brother” includes any house, room, conveyance or place, or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes;
(aa) “Child’ means a person who has not completed the age of sixteen years;
(b) “Corrective institution” means an institution, by whatever name called (being an institution established or licenced as such under Section 21), in which persons, who are in need of correction, may be detained under this Act, and includes a shelter where under trials may be kept in pursuance of this Act;
(c) “Magistrate” means a Magistrate specified in the second column of the Schedule as being competent to exercise the powers conferred by the section in which the expression occurs and which is specified in the first column of the Schedule;
(ca) “Major” means a person who has completed the age of eighteen years;
(cb) “Minor” means a person who has completed the age of sixteen years but has not completed the age of eighteen years;
(d) “Prescribed’ means prescribed by rules made under this Act;
(e) 1[* * * * * *].
(f) “Prostitution” means the sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly;
(g) “Protective home” means an institution, by whatever name called (being an institution established or licenced as such under Section 21), in which persons who are in need of care and protection, may be kept under this Act and where appropriate technically qualified persons, equipments and other facilities have been provided but does not include, -
(i) A shelter where undertrials may be kept in pursuance of this Act, or
(ii) A corrective institution;
(h) “Public place” means any place intended for use by, or accessible to, the public and includes any public conveyance;
(i) “Special police officer” means a police officer appointed by or on behalf of the State Government to be in charge of police duties within a specified area for the purpose of this Act;
(j) “Trafficking police officer” means a police officer appointed by the Central Government under sub-section (4) of Section 13.
1. Sub-section (e) emitted by Act No 46 of 1978.
Section 2-A. Rule of construction regarding enactments not extending to Jammu and Kashmir.
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.
Section 3. Punishment for keeping a brothel or allowing premises to be used as a brothel.
(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel, shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent to conviction with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.
(2) A any person who, -
(a) Being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or
(b) Being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.
(2-A) For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause (b) of that subsection, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if, -
(a) A report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or
(b) A copy of the list of all things found during the search referred to in clause (a) is given to such person.
(3) Notwithstanding any thing contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (d) of sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.
Section 4. Punishment for living on the earnings of prostitution.
(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both, and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years.
(2) Where any person over the age of eighteen years is proved, -
(a) To be living with, or to be habitually in the company of, a prostitute; or
(b) To have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding abetting or compelling her prostitution; or
(c) To be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1).
Section 5. Procuring, inducing or taking person for the sake of prostitution.
(1) Any person who-
(a) Procures or attempts to procure a person whether with or without his/her consent, for the purpose of prostitution; or
(b) Induces a person to go from any place, with the intent that he/she may for the purpose of prostitution become the inmate of, or frequent, a brothel; or
(c) Takes or attempts to take a person or causes a person to be taken, from one place to another with a view to his/her carrying on, or being brought up to carry on prostitution; or
(d) Causes or induces a person to carry on prostitution; shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:
Provided that if the person in respect of whom an offence committed under this sub-section, -
(i) Is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and
(ii) Is a minor; the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years.
1(2) [* * * * * *]
(3) An offence under, this section shall he triable, -
(a) In the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or taken such persons made; or
(b) In the place to which she may have gone as a result of the inducement or to which he/she is taken or caused to be taken or an attempt to take him/her is made.
1. Sub-sec. (2) emitted by Act No. 44 of 1986.
Section 6. Detaining a person in premises where prostitution is carried on.
(1) Any person who detains any other person, whether with or without his consent,-
(a) In any brothel, or
(b) In or upon any premises with intent that such person may have sexual intercourse with a person, who is not the spouse of such person, shall he punishable on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
Provided that the court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term, which may be less than seven years.
(2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub-section (1).
(2-A) Where a child or minor found in a brothel, is, on medical examination, detected to have been sexually abused, it shall be presumed unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.
(3) A person shall be presumed to detail a person in a brothel or in upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person, with intent to compel or induce her to remain there,
(a) Withholds from her any jewellery, wearing apparel, money or other property belonging to her, or
(b) Threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person.
(4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl or to have been pledged by such woman or girl or for the recovery of any money alleged to be payable by such woman or girl.
Section 7. Prostitution in or in the vicinity of public place.
(1) Any person who carries on prostitution and the person with whom such prostitution is carried on, in any premises:
(a) Which are within the area or areas, notified under subjection (3), or
(b) Which are within a distance of two hundred meters of any place of public religious worship, educational institution, hotel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.
(I-A) Where an offence committed under sub-section (1) is in respect of a child or minor, the person committing the offence shall be punishable with imprisonment of either description for a term which not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Any person who:
(a) Being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place; or
(b) Being the tenant, lessee, occupier or person in charge of any premises referred to in sub-section (1) knowingly permits the same or any part thereof to be used for prostitution; or
(c) Being the owner, lessor or landlord of any premises referred to in sub-section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use. Shall be punishable on first conviction with imprisonment for a, term which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine, which may extend to two hundred rupees, and if the public place or premises happen to be a hotel, the licence for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extend to one year:
Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel, such licence shall also be liable to be cancelled.
Explanation. -For the purposes of this subjection, “hotel” shall have the meaning as in clause (6) of Section 2 of the Hotel-Receipts Tax Act, 1980 (54 of 1980).
(3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the official Gazette, direct that the prostitution shall not be carried on in such area or areas as may be specified in the notification.
(4) Where the notification is issued under Sub-section (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notification with reasonable certainty.
(5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued.6. Detaining a person in premises where prostitution is carried on.
(1) Any person who detains any other person, whether with or without his consent,-
(a) In any brothel, or
(b) In or upon any premises with intent that such person may have sexual intercourse with a person, who is not the spouse of such person, shall he punishable on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
Provided that the court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term, which may be less than seven years.
(2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub-section (1).
(2-A) Where a child or minor found in a brothel, is, on medical examination, detected to have been sexually abused, it shall be presumed unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.
(3) A person shall be presumed to detail a person in a brothel or in upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person, with intent to compel or induce her to remain there,
(a) Withholds from her any jewellery, wearing apparel, money or other property belonging to her, or
(b) Threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person.
(4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl or to have been pledged by such woman or girl or for the recovery of any money alleged to be payable by such woman or girl.
Section 8. Seducing or soliciting for purpose of prostitution.
Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not:
(a) By words, gestures, willful exposure of her person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavour to tempt, or attracts or endeavour to attract the attention of, any person for the purpose of prostitution; or
(b) Solicits or molests any person, or loiters, or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution,
Shall be punishable on first conviction with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to one year, and also with fine which may extend to five hundred rupees:
Provided that where an offence under this Section is committed by a man he shall be punishable with imprisonment for a period of not less than seven days but which may extend to three months.
Section 9. Seduction of a person in custody.
Any person who having the custody, charge or care of or in a position of authority over any person causes or aids or abets the seduction for prostitution of that shall be punishable on conviction with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
1[(2) * * * * * * *]
1. Sub-section (2) emitted by Act No. 44 of 1986.
Section 10. Omitted.
1[10. * * * * * * *]
1. Sec. 10 omitted by Act No. 44 of 1986.
Section 11. Notification of address of previously convicted offenders.
(1) When any person having been convicted-
(a) By a court in India of an offence punishable under this Act or punishable under Section 363, Section 365, Section 366, Section 366-A, Section 366-B, Section 367, Section 368, Section 370, Section 371, Section 372 or Section 373 of the Indian Penal Code (45 of 1860), with imprisonment for a term of two years or up wards; or
(b) By a court or tribunal in any other country of an offence which would, if committed in India, have been punishable under this Act, or under any of the aforesaid sections with imprisonment for a like term, is within a period of five years after release from prison, again convicted of any offence Punishable under this Act or under of those section with, imprisonment for a term of two years or upwards by a court, such court may, if it thinks fit, at the time of passing the sentence of imprisonment on such person, also order that his residence, and any change of, or absence from, such residence, after release, be notified according to rules made under Section 23 for a period not exceeding five years from the date of expiration of that sentence.
(2) If such conviction is set-aside on appeal or otherwise, such order shall become void.
(3) All order under this section may also be made by an Appellate Court or by the High Court when exercising its powers of revision.
(4) Any person charged with a breach of any rule referred to in sub-section
(1) may be tried by a Magistrate of competent jurisdiction in the District in which the place last notified as his residence is situated.
Section 12. Omitted
1[12. * * * * * * ]
1. Section 12 omitted by Act No. 44 of 1986.
Section 13. Special police officer and advisory body.
(1) There shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that government for dealing with offences under this Act in that area.
(2) The special police officer shall not he below the rank of an inspector of Police.
(2-A) The District Magistrate may, if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the powers conferred by or under this Act on a special police officer, with respect to particular cases or classes of cases or to cases generally:
Provided that no such power shall be conferred on, -
(a) A retired police officer unless such officer, at the time of his, retirement, was holding a post not below the rank of an inspector;
(b) A retired military officer unless such officer, at the time of his retirement, was holding a post not below the rank of a commissioned officer.
(3) For the efficient discharge of his functions in relation to offences under this Act, -
(a) The special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers wherever practicable) as the State Government may think fit; and
(b) The State Government may associate with the special police officer a nonofficial advisory body consisting of not more than five leading social welfare workers of that area (including women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act.
(4) The Central Government may, for the purpose of investigating any offence under this Act or under any other law for the time being in force dealing with sexual exploitation of persons and committed in more than one State appoint such number of police officers as trafficking police officers and they shall exercise all the powers and discharge all the functions as are exercisable by special police officers under this Act with the modification that they shall exercise such powers and discharge such functions in relation to the whole of India.
Section 14. Offences to be cognizable.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code:
Provided that, notwithstanding anything contained in that Code, -
(i) Arrest without warrant may be made only by the special police officer or under his direction or guidance, or subject to his prior approval;
(ii) When the special police officer requires any officer subordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made; and the latter officer before arresting the person shall inform him of the substance of the, order and, on being required by such person, show him the order;
(iii) Any police officer not below the rank of sub-inspector specially authorised by the special police officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any valuable evidence relating to any offence under this Act is likely to be destroyed or concealed, or the person who has committed or is suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made.
Section 15. Search without warrant.
(1) Notwithstanding anything contained in any other law for the time being in force, whenever the special police officer or the trafficking police officer as the case may be, has reasonable grounds for believing that an offence punishable under this Act has been or is being committed in respect of a person living in any premises, and that search of the premises with warrant cannot be made without undue delay, such officer may, after recording the grounds of his belief, enter and search such premises without a warrant.
(2) Before making a search under subsection (1), the special police officer or the trafficking police officer, as the case may be shall call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search and may issue an order in writing to them or any of them so to do:
Provided that the requirement as to the respectable inhabitants being from the locality in which the place to be searched is situate shall not apply to a woman required to attend and witness the search.
(3) Any person who, without reasonable cause, refuses or neglects, to attend and witness a search under this section, when called upon to do so by an order in writing delivered or, tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code (45 of 1860).
(4) The special police officer or the trafficking police officer, as the case may be, entering any premises under sub-section (1) shall be entitled to remove therefrom all the persons found therein.
(5) The special police officer or the trafficking police officer, as the case may be, after removing person under subsection (4) shall forthwith produce her before the appropriate Magistrate.
(5-A) Any person who is produced before a Magistrate under sub-section (5), shall be examined by a registered medical practitioner for the purposes of determination of the age of such person, or for the detection of any injuries as a result of sexual abuse or for the presence of any sexually transmitted diseases.
Explanation. -In this sub-section, “registered medical practitioner” has the same meaning as in the Indian Medical Council Act, 1956 (102 of 1956).
(6) The special police officer or the trafficking police officer, as the case may be, and other persons taking part in, or attending, and witnessing a search shall not be liable to any civil or criminal proceeding against them in respect of anything lawfully done in connection with, or for the purpose of, the search.
(6-A) The special police officer or the trafficking police officer, as the case may be, making a search under this section shall be accompanied by at least two women police officers, and where any woman or girl removed under sub-section (4) is required to be interrogated it shall be done by woman police officer and if no woman police officer is available, the interrogation shall be done only in the presence of a lady member of a recognized welfare institution or organization.
Explanation. -For the purposes of this sub-section and Section 17-A, “recognised welfare institution or Organisation” means such institution or Organisation, as may be recognized in this behalf by the State Government.
(7) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be, apply to any search under this section as they apply to any search made under the authority of a warrant issued under 94 of the said Code.
Section 16. Rescue of person.
(1) Where a Magistrate has reason to believe from information received from the police or from any other person authorised by State Government in this behalf or otherwise, that any person is living, or is carrying, or is being made to carry on, prostitution in a brothel, he may direct a police officer not below the rank of a sub-inspector to enter such brothel, and to remove therefrom such person and produce her before him.
(2) The police officer, after removing the person shall forthwith produce her before the Magistrate issuing the order.
Section 17. Intermediate custody, of persons removed under Section 15 or rescued under Section 16.
(1) When the special police officer removing a person under subsection (4) of Section 15 or a police officer rescuing a person under sub-section (1) of Section 16, is for any reason unable to produce her before the appropriate Magistrate as required by sub-section (5) of Section 15, or before the Magistrate issuing the order under sub-section (2) of Section 16, he shall forthwith produce her before the nearest Magistrate of any class, who shall pass such orders as he deems proper for her safe custody until she is produced before the appropriate Magistrate, or, as the case may be, the Magistrate issuing the order:
Provided that no person shall be,
(i) Detained in custody under this sub-section for a period exceeding tell days from the date of the order under this sub-section; or
(ii) Restored to or placed in the custody of a person who may exercise a harmful influence over her.
(2) When the person is produced before the appropriate Magistrate under subsection (5) of Section 15 or the Magistrate under sub-section (2) of Section 16, he shall, after giving her an opportunity of being heard, cause an inquiry to be made as to the correctness of the information received under subsection (1) of Section 16, the age, character and antecedents of the person and the suitability of her parents, guardian or husband for taking charge of her and the nature of the influence which the conditions in her home are likely to have on her if she is sent home, and, for this purpose, he may direct a Probation officer appointed under the Probation of Offenders Act, 1958, to inquire into the above circumstances and into the personality of the person and the prospects of her rehabilitation.
(3) The Magistrate may, while an inquiry is made into a case under sub-section (2), pass such orders, as he deems proper for the safe custody of the person:
Provided that where a person rescued under Section 16 is a child or minor, it shall be open to the magistrate to place such child or minor in any institution established or recognised under any Children Act for the time being in force in any State for the safe custody of children:
Provided further that no person shall be kept in custody for this purpose for a period exceeding three weeks from the date of such an order, and no person shall be kept ill the custody of a person likely to have a harmful influence over her.
(4) Where the Magistrate is satisfied, after making an inquiry as required under sub-section (2), -
(a) That the information received is correct; and
(b) That she is in need of care and protection,
He may, subject to the provisions of subsection (5), make an order that such person be detained for such period, being not less than one year and not more than three, as may be specified in the order, in a protective home, or in such other custody, as he shall, for reasons to be recorded in writing, consider suitable:
Provided that such custody shall not be that of a person or body of persons of a religious persuasion different from that of the person, and that those entrusted with the custody of the person, including the persons in charge of a protective home; may be required to enter into a bond which may, where necessary and feasible contained undertaking based on directions relating to the proper care, guardianship, education, training and medical and psychiatric treatment of the person as well as supervision by a person appointed by the Court, which will be in force for a period not exceeding three years.
(5) In discharging his functions under sub-section (2), a Magistrate may summon a panel of five respectable persons, three of whom shall, wherever practicable, be women, to assist him; and may, for this purpose, keep a list of experienced social welfare workers, particularly women social welfare workers, in the field of suppression of immoral traffic in persons.
(6) An appeal against an order made under sub-section (4) shall lie to the Court of Session whose decision on such appeal shall be final.
Section 17-A. Conditions to Be Observed Before Placing Persons Rescued Under Section 16 To Parents Or Guardians.
Notwithstanding anything contained in sub-section (2) of Section 17, the magistrate making an inquiry under Section 17, may, before passing all order for handing over any person rescued under Section 16 to the parents, guardian or husband, satisfy himself about the capacity or genuineness of the parents, guardian or husband to keep such person by causing an investigation to be made by a recognized welfare institution or Organisation.
Section 18. Closure of brothel and eviction of offenders from the premises.
(1) A Magistrate may, on receipt of information from the police or otherwise, that any house, room, place or any portion thereof within a distance of two hundred meters of any public place referred to in sub-section (1) of Section 7 is being run or used as a brothel by any person, or is being used by prostitutes for carrying on their trade, issue notice on the owner, lessor or landlord or such house, room, place or portion or the agent of the owner, lessor or landlord or on the tenant, lessee, occupier of, or any other person in charge of such house, room, place, or portion, to show cause within seven days of the receipt of the notice why the same should not he attached for improper use thereof, and if, after hearing the person concerned, the Magistrate is satisfied that the house, room, place or portion is being used as a brothel or for carrying on prostitution, then the Magistrate may pass orders,-
(a) Directing eviction of the occupier within seven days of the passing of the order from the house, room, place, or portion;
(b) Directing that before letting it out during the period of one year or in a case where a child or minor has been found in such house, room, place or portion during a search under Section 15, during the period of three years, immediately after the passing of the order, the owner, lessor or landlord or the agent of the owner, lessor or landlord shall obtain the previous approval of the Magistrate;
Provided that, if the Magistrate finds that the owner, lessor or landlord as well as the agent of the owner, lessor or landlord, was innocent of the improper user of the house, room, place, or portion, he may cause the same to be restored to the owner, lessor or landlord or the agent of the owner, lessor landlord, with a direction that the house, room, place or portion shall not be leased out, or otherwise given possession of, to or for the benefit of the person who was allowing the improper use therein.
(2) A court convicting a person of any offence under Section 3 or Section 7 may pass orders under sub-section (1), without further notice to such person to show cause as required in that sub-section.
(3) Orders passed by the Magistrate or court under sub-section (1) or sub-section (2), shall not be subject to appeal and shall not be stayed or set aside by the order of any court, civil or criminal, and the said orders shall cease to have validity after the expiry of one year or three years, as the case may be:
Provided that where a conviction under Section 3 or Section 7 is set aside on an appeal on the ground that such house, room, place, or any portion thereof is not being run or uses as a brothel or is not being used by prostitutes for carrying on their trade, any order passed by the trial court under sub-section (1) shall also be set aside. (4) Notwithstanding anything contained in any other law for the time being in force, when a Magistrate passes an order under subsection (1), or a Court passes all order under sub-section (2), any lease or a agreement under which the house, room, place or portion is occupied at the time shall become void and inoperative.
(5) When an owner, lessor or landlord, or the agent of such owner, lessor or landlord fails to comply with a direction given under clause (b) of sub-section (1) he shall be punishable with fine which may extend to five hundred rupees or when he fails to comply with a direction under the proviso to that subsection, he shall be deemed to have committed an offence under clause (b) of sub-section (2), of Section 3 or clause (c) of sub-section (2) of Section 7, as the case may be, and punished accordingly.
Section 19. Application for being kept in a protective home or provided care and protection by court,
(1) A person who is carrying oil, or is being made to carry oil prostitution, may make all applications, to the Magistrate within the local limits of whose jurisdiction she is carrying on, or is being made to carry on prostitution, for an order that she may be-
(a) Kept in a protective home, or
(b) Provided care and protection by the court in the manner specified in subsection (3).
(2) The Magistrate may pending inquiry under sub-section (3) direct that the person be kept in such custody, as he may consider proper, having regard to the circumstances of the case.
(3) If the Magistrate after hearing the applicant and making such inquiry as he may consider necessary, including an inquiry by a Probation Officer appointed under the Probation of Offender Act, 1958, (20 of 1958) into the personality, conditions of home and prospects of rehabilitation of the applicant, is satisfied that an order should be made under this section, he shall for reasons to be recorded, make an order that the applicant to be kept:
(i) In a protective home, or
(ii) In a corrective institution, or
(iii) Under the supervision of a person appointed by the Magistrate for such period as may be specified in the order.
Section 20. Removal of prostitute from any place.
(1) A Magistrate on receiving information that any person residing in or frequenting any place within the local limits of his jurisdiction is a prostitute, may record the substance of the information received and issue a notice to such person requiring her to appear before the Magistrate and show cause why she should not be required to remove herself from the place and be prohibited form reentering it.
(2) Every notice issued under subsection (1) shall be accompanied by a copy of the record aforesaid and the copy shall be served along with the notice on the person against whom the notice is issued.
(3) The Magistrate shall, after the service of the notice referred to in subsection (2), proceed to inquire into the truth of the information received, and after giving the person an opportunity of adducing evidence; take such further evidence as he thinks fit and if upon such inquiry it appears to him that such person is a prostitute and that it is necessary in the interest of the general public that such person should be required to remove herself therefrom and be prohibited from re-entering the same, the Magistrate shall, by order in writing communicate to the person in the manner specified therein, require her after a date (to be specified in the order) which shall not be less than seven days from the date of the order, to remove herself from the place to such place whether within or without the local limits of his jurisdiction, by such route or routes and within such time as may be specified in the order and also prohibit her from reentering the place without the permission in writing of the Magistrate having jurisdiction over such place.
(4) Whoever, -
(a) Fails to comply with an order issued under this section, within the period specified therein, or whilst an order prohibiting her from re-entering a place without permission is in force, re-enters the place without such permission, or
(b) Knowing that any person has, under this section, been required to remove herself from the place and has not obtained the requires site permission to re-enter it, harbours or conceals such person in the place, shall be punishable with fine which may extend to two hundred rupees and in the case of a continuing offence with an additional fine which may extend to twenty rupees for every day after the first during which she or he has persisted in the offence.
Section 21. Protective homes.
(1) The State Government may in its discretion establish as many protective homes and corrective institutions under this Act as it thinks fit and such homes and institutions when established shall be maintained in such manner as may be prescribed.
(2) No person or no authority other than the State government shall, after the commencement of this Act, establish or maintain any protective home or corrective institution except under and in accordance with the conditions of, a licence issued under this section by the State Government.
(3) The State Government may, on application made to it in this behalf by a person or authority, issue to such person or authority a licence in the prescribed form for establishing and maintaining or as the case may be, for maintaining a protective home or corrective institution and a licence so issued may contain such conditions as the State Government may think fit to impose in accordance with the rules made under this Act:
Provided that any such condition may require that the management of the protective home or corrective institution shall, wherever practicable, be entrusted to women:
Provided further that a person or authority maintaining any protective home at the commencement of this Act shall be allowed a period of six months from such commencement to make an application for such licence:
Provided also that a person or authority maintaining any corrective institution at the commencement of the Suppression of Immoral Traffic in Women and Girls (Amendment) Act, 1978, shall be allowed a period of six months from such commencement to make an application for such licence.
(4) Before issuing a licence, the State Government may require such officer or authority as it may appoint for this purpose, to make a full and complete investigation in respect of the application received in this behalf and report to it the result of such investigation and in making any such investigation the officer or authority shall allow such procedure as may be prescribed.
(5) A licence, unless sooner revoked, shall remain in force for such period as may be specified in the licence and may, on application made in this behalf at least thirty days before the date of its expiration, be renewed for a like period.
(6) No licence issued or renewed under this Act shall be transferable.
(7) Where any person or authority to whom a licence has been granted under this Act or any agent or servant of such person or authority commits a breach of any of the conditions thereof or any of the provisions of this Act or of any of the rules made under this Act, or where the State Government is not satisfied with the conditions, management or superintendence or any protective home or corrective institution the State Government may, without prejudice to any other penalty which may have been incurred under this Act, for reasons to be recorded, revoke the licence by order in writing:
Provided that no such order shall be made until an opportunity is given to the holder of the licence to show cause why the licence shall not be revoked
(8) Where a licence in respect of a protective home or corrective institution has been revoked under the foregoing subsection such protective home or corrective institution shall cease to function from the date of, such revocation.
(9) Subject to any rule that may be made in this behalf the State Government may also vary or amend any licence issued or renewed under this Act.
(9-A) The State Government or any authority authorised by it in this behalf may, subject to any rules that may be made in this behalf, transfer an inmate of a protective home to another protective home or to a corrective institution or an inmate of a corrective institution to another corrective institution or to a protective home, where such transfer is considered desirable having regard to the conduct of the person to be transferred, the kind of training to be imparted and other circumstances of the case:
Provided that, -
(i) No person who is transferred under this sub-section shall be required to stay in the home or institution to which she is transferred for a period longer than she was required to stay in the home or institution from which she was transferred;
(ii) Reasons shall be recorded for every order of transfer under this subsection (10) whoever establishes or maintains a protective home or corrective institution except in accordance with the provisions of this section, shall be punishable in the case of a first offence with fine which may extend to one thousand rupees and in the case of second or subsequent offence with imprisonment for a term which may extend to one year, or with fine which may extend to two thousand rupees, or with both.
Section 21-A. Production of records.
Every person or authority who is licensed- under subsection (3) of Section 21 to establish or maintain, or, as the case may be, for maintaining, a protective home or corrective institution
Section 22. Trials.
No Court, inferior to that of a Metropolitan Magistrate or a judicial magistrate of the first class, shall try any offence under Section 3, Section 4, Sectioii.5, Section 6, Section 7 or Section 8.
Section 22-A. Power to establish special Courts.
(1) If the State Government is satisfied that it is necessary for the purpose of providing for speedy trial of offences under this Act in any district or metropolitan area, it may, by notification in the official Gazette and after consultation with the High Court, establish one or more Courts of Judicial Magistrates of the first class, or, as the case may be, Metropolitan Magistrate, in such district or metropolitan area.
(2) Unless otherwise directed by the High Court, a court established under sub-section (1) shall exercise jurisdiction only in respect of cases under this Act.
(3) Subject to the provisions of sub-section (2), the jurisdiction and powers of the presiding officer of a court established under sub-section (1) in any district or metropolitan area shall extend throughout the district or the metropolitan area, as the case may be.
(4) Subject to the foregoing provisions of this section, a Court established under sub-section (1) in any district or metropolitan area shall be deemed to be a court established under subsection (1) of Section 11, or, as the case may be, sub-section (1) of Section 16 of the Code of Criminal Procedure, 1973 (2 of 1974) and provisions of the Code shall apply accordingly in relation to such courts.
Explanation. -In this section, “High Court” has the same meaning as in clause (e) of Section 2 of the Code of Criminal Procedure, 1973.
Section 22-AA. Power of Central Government to establish special courts.
1[22-AA. Power of Central Government to establish special courts. -
(1) If the Central Government is satisfied that it is necessary for the purpose of providing for speedy trial of offences under this Act and committed in more than one State, it may, by notification in the official Gazette and after consultation with the High Court concerned, establish one or more courts of Judicial Magistrates of the first class or Metropolitan Magistrates for the trial of such offences.
(2) The provisions of Section 22-A, shall, so far as may be, apply to the courts established under sub-section (1), as they apply to Courts established under that section.
1. Ins. by Act No. 44 of 1986 (w.e.f. 26-1-1987).
Section 22-B. Power of court to try cases summarily.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the State Government may, if it considers it necessary so to do, direct that offences under this Act shall be tried in a summary way by a Magistrate including the presiding officer of a court established under sub-section (1) of Section 22-A and the provisions of Section 262 to 265 (both inclusive) of the said Code, shall, as far as may be, apply to such trial:
Provided that in the case 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, undersirable 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 re-hear the case in the manner provided by the said Code]
Section 23. Power to make rules.
(1) The State Government may, by notification in the official Gazette, make rules for carrying on the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for:
(a) The notification of any place as a public place;
(b) The placing in custody of persons for whose safe custody orders have been passed under subsection (1) of Section 17 and their maintenance;
(bb) The discharge of an offender under subsection (3) of Section 10-A from a corrective institution and the form of licence to be granted to such offender;
(c) The detention and keeping in protective homes or, as the case may be, in corrective institutions or person under this Act and their maintenance;
(d) The carrying out of the provisions of Section 11 regarding notification of residence or change of or absence from residence by released convicts;
(e) The delegation of authority to appoint the special police officer under subsection (1) of Section 13;
(f) The carrying into effect of the provisions of Section 18;
(g) (i) The establishment, maintenance, management and superintendence of protective homes and corrective institutions under Section 21 and the appointment, powers and duties of persons employed in such home or institution;
(ii) The form in which an application for a licence may be made and the particulars to be contained in such application;
(iii) The procedure for the issue or renewal of a licence, the time within which such licence shall be issued or renewed and the procedure to be followed in making a full and complete, investigation in respect of all application for licence;
(iv) The form of a licence and the condition to be specified therein;
(v) The manner in which the accounts of a protective home and a corrective institution shall be maintained and audited;
(vi) The maintenance of registers and statements by a licensee and the form of such registers and statements;
(vii) The care, treatments, maintenance, training, instruction, control and discipline of the inmates of protective home and corrective institutions;
(viii) The visits to and communications with inmates;
(ix) The temporary detention of persons sentenced to detention in protective homes or in corrective institution until arrangements are made for sending them to such homes or institutions;
(x) The transfer of all inmate from:
(a) Protective home to another, or to a corrective institution,
(b) One corrective institution to another, or to a protective home, under subsection (9-A) of Section 21;
(xi) The transfer in pursuance of an order of the Court from a protective home or a corrective institution to a prison of a person found to be incorrigible or exercising bad influence upon other inmates of the protective home or the corrective institution and the period of her detention in such prison;
(xii) The transfer to a protective home or corrective institution of persons sentenced under Section 7 or Section 8 and the period of their detention in such home or institution;
(xiii) The discharge of inmates front a protective home or corrective institution either absolutely or subject to conditions, and their arrest in the event of breach of such conditions;
(xiv) The grant of permission to inmates to absent themselves for short periods;
(xv) The inspection of protective homes and corrective institutions and other institutions in which a persons may be kept, detained and maintained;
(h) Any other matter which has to be, or may be prescribed.
(3) In making any rule under clause (d) or clause (g) or sub-section (2), the State Government may provide that a breach thereof be punishable with fine which may extend to two hundred and fifty rupees.
(4) All rules made under this Act shall, as soon as may be after they are made, be laid before the State Legislature.
Section 24. Act not to be in derogation of certain other Acts.
Nothing in this Act shall be construed to be in derogation of the provisions of the Reformatory Schools Act, 1897 or any State Act enacted in modification of the said Act or otherwise, relating to juvenile offenders.
Section 25. Repeal and savings.
(1) As from the date of the coming into force in ally State of the provisions other than Section I of this Act, all State Acts relating to suppression of immoral traffic in persons or to the prevention of prostitution, in force in that State immediately before such date shall stand repealed.
(2) Notwithstanding the repeal by this Act, of any State Act referred to in sub-section (1), anything done or any action taken including any direction given in any register, rule or order made, any restriction imposed under the provision of such State Act shall in so far as such thing or action is not inconsistent with the provisions of this Act be deemed to have been done or taken under the provisions of this Act as if the said provisions were in force when such thing was done or such action was taken and shall continue in force accordingly until superseded by anything done or any action taken under this Act.
Explanation. -In this section, the expression ‘State Act “includes” a Provincial Act’.
Section 26- THE SCHEDULE
[SEE SECTION 2(C)]
|
Section
|
Magistrate competent to exercise the powers
|
|
7(l)
|
District Magistrate.
|
|
11 (4)
|
Metropolitan Magistrate or Judicial Magistrate of the first class.
|
|
12 (4)
|
1[* * * * * * *]
|
|
15(5)
|
Metropolitan Magistrate, Judicial Magistrate of the first class, District Magistrate or Sub-divisional Magistrate.
|
|
16
|
Metropolitan Magistrate, Judicial Magistrate of the first class, District Magistrate or Sub-divisional Magistrate.
|
|
18
|
District Magistrate or Sub-divisional Magistrate.
|
|
19
|
Metropolitan Magistrate, Judicial Magistrate of the first class, District Magistrate or Sub-divisional Magistrate.
|
|
20
|
District Magistrate, Sub-divisional Magistrate or any Executive Magistrate specially empowered by the State Government.
|
|
22-B
|
Metropolitan Magistrate of Judicial Magistrate of the first class.
|
1. Figures and words omitted by Act No. 44 of 1986 (w.e.f. 2-6-1987).
November 30, 2014
Section 1. Short title, extent and commencement.
(1) This Act may be called the Prevention of Cruelty to Animals Act, 1960.
(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, and different dates may be appointed for different States and for the different provisions contained in this Act.1
——————–
1. See Annexure for notifications under Section 1(3).
Section 2. Definitions.
In this Act, unless the context otherwise requires, -
(a) “Animal” means any living creature other than a human being;
1[(b) “Board” means the Board established under Section 4, and as reconstituted form time to time under Section 5A.]
(c) “Captive animal” means any animal (not being a domestic animal) which is in captivity or confinement, where permanent or temporary, or which is subjected to any appliance or contrivance for the purposes of hindering or preventing its escape form captivity or confinement or which is pinioned or which is or appears to be maimed;
(d) “Domestic animal” means any animal which is tamed or which has been or is being sufficiently tamed to serve some purpose for the use of man or which, although it neither has been nor is intended to be so tamed, is or has become in fact wholly or partly tamed;
(e) “Local authority” means a municipal committee, district board or other authority for the time being invested by law with the control and administration of any matters within a specified local area;
(f) “Owner”, used with reference to an animal, includes not only the owner but also any other person for the time being in possession or custody of the animal, whether with or without the consent of the owner.
(g) “Phooka” or “doom dev” includes any process of introducing air or any substance into the female organ of a milch animal with the object of drawing off from the animal any secretion of milk;
(h) “Prescribed” means prescribed by Rules made under this Act;
(i) “Street” includes any way, road, lane, square, court, alley, passage or open space, whether a thorough fare or not to which the public have access.
——————–
1. Substituted by Act 26 of 1982 which came into force on 30th July 1982.
Section 3. Duties of persons having charge of animals.
It shall be the duty of every person having the care or charge of any animal to take all reasonable measures to ensure the well being of such animal and to prevent the infliction upon such animal of unnecessary pain or suffering.
Section 4. Establishment of Animal Welfare Board of India.
Chapter Ii 1[Animal Welfare Board Of India]
——————–
1. Subs. by Act 26 of 1982; S. 3, for the words “Animal Welfare Board”.
4. Establishment of Animal Welfare Board of India-
(1) For the promotion of animal welfare generally and for the purpose of protecting animals from being subjected to unnecessary pain or suffering, in particular, there shall be established by the Central Government, as soon as may be after the commencement of this Act, a Board to be called the 1[Animal Welfare Board of India.]
(2) The Board shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and may by its name sue and be sued.
——————–
1. Subs. by Act 26 of 1982; S. 4 for the words “Animal Welfare Board”.
Section 5. Constitution of the Board.
(1) The Board shall consist of the following persons, namely: -
(a) The Inspector-General of Forests, Government of India, ex-officio;
(b) The Animal Husbandry Commissioner to the Government of India, ex-officio;
1(ba) Two persons to represent respectively the Ministries of the Central Government dealing with Home Affairs and Education, to be appointed by the Central Government;
(bb) One person to represent the Indian Board for Wild Life, to be appointed by the Central Government;
(bc) Three persons who, in the opinion of the Central Government, are or have been actively engaged in animal welfare work and are well-known humanitarians, to be nominated by the Central Government;]
(c) One person to represent such association of veterinary practitioners as in the opinion of the Central Government ought to be represented on the Board, to be elected by that association in the prescribed manner;
(d) Two persons to represent practitioners of modern and indigenous systems of medicine, to be nominated by the Central Government;
2[(e) One person to represent each of such two municipal corporations as in the opinion of the Central Government ought to be represented on the Board, to be elected by each of the said corporations in the prescribed manner;]
(f) One person to represent each of such three organisations actively interested in animal welfare as in the opinion of the Central Government ought to be represented on the Board, to be chosen by each of the said organisations in the prescribed manner;
(g) One person to represent each of such three societies dealing with prevention of cruelty to animals as in the opinion of the Central Government ought to be represented on the Board, to be chosen in the prescribed manner;
(h) Three persons to be nominated by the Central Government;
(i) Six Members of Parliament, four to be elected by the House of the People (Lok Sabha) and two by the Council of States (Rajya Sabha).
(2) Any of the persons referred to in clause (a) or 3 [clause (b) or clause (ba) or clause (bb)] of sub-section (1) may depute any other person to attend any of the meetings of the Board.
4[(3) The Central Government shall nominate one of the members of the Board to be its Chairman and another member of the Board to be its Vice-Chairman.]
——————–
1. Inserted by Act 26 of 1982; Section 5(a)(i).
2. Subs. by Act 26 of 1982; S.5 (a)(ii), for the original clause.
3. Subs. by Act 26 of 1982; S.5 (b), for the word, brackets and letter “clause (b)”.
4. Subs. by Act 26 of 1982; Section 5(c) for the original clause.
Section 5 A. Reconstitution of the Board.
1[Reconstitution of the Board. (1) In order that the Chairman and other members of the Board hold office till the same date and that their terms of office come to an end on the same date, the Central Government may, by notification in the Official Gazette, reconstitute, as soon as may be after the Prevention of Cruelty to Animals (Amendment) Act, 1982 comes into force, the Board.
(2) The Board as reconstituted under sub-section (1) shall be reconstituted from time to time on the expiration of every third year from the date of its reconstitution under sub-section (1).
(3) There shall be included amongst the members of the Board reconstituted under sub-section (1), all persons who immediately before the date on which such reconstitution is to take effect, are Members of the Board but such persons shall hold office only for the unexpired portion of the term for which they would have held office if such reconstitution had not been made and the vacancies arising as a result of their ceasing to be Members of the Board shall be filled up as casual vacancies for the remaining period of the term of the Board as so reconstituted :
Provided that nothing in this sub-section shall apply in relation to any person who ceases to be a Member of the Board by virtue of the amendment made in sub-section (1) of section 5 by sub-clause (ii) of clause (a) of section 5 of the Prevention of Cruelty to Animals (Amendment) Act, 1982.]
——————–
1. Ins. by Act 26 of 1982; S. 6,
Section 6. Terms of office and conditions of service of Members of the Board.
1[Terms of office and conditions of service of Members of the Board. (1) The term for which the Board may be reconstituted under section 5A shall be three years from the date of the reconstitution and the Chairman and other Members of the Board as so reconstituted shall hold office till the expiry of the term for which the Board has been so reconstituted.
(2) Notwithstanding anything contained in sub-section (1)-
(a) The term of office of an ex-officio Member shall continue so long as he holds the office by virtue of which he is such a Member;
(b) The term of office of a Member elected or chosen under clause (c), clause (e), clause (f), clause (g), clause (h) or clause (i) of section 5 to represent any body of persons shall come to an end as soon as he ceases to be a Member of the body which elected him or in respect of which he was chosen;
(c) The term of office of a Member appointed, nominated, elected or chosen to fill a casual vacancy shall continue for the remainder of the term of office of the Member in whose place he is appointed, nominated, elected or chosen;
(d) The Central Government may, at any time, remove for reasons to be recorded in writing a Member from office after giving him a reasonable opportunity of showing cause against the proposed removal and any vacancy caused by such removal shall be treated as casual vacancy for the purpose of clause (c).
(3) The Members of the Board shall receive such allowances, if any, as the Board may, subject to the previous approval of the Central Government, provide by regulations made in this behalf.
(4) No act done or proceeding taken by the Board shall be questioned on the ground merely of the existence of any vacancy in, or defect in the constitution of the Board and in particular, and without prejudice to the generality of the foregoing, during the period intervening between the expiry of the term for which the Board has been reconstituted under section 5A and its further reconstitution under that section, the ex-officio members of the Board shall discharge all the powers and functions of the Board.]
——————–
1. Subs. by Act 26 of 1982, S. i, for the original Section.
Section 7. Secretary and other employees of the Board.
(1) The Central Government shall appoint 1[x x x] the Secetary of the Board.
(2) Subject to such rules as may be made by the Central Government in this behalf, the Board may appoint such member of other officers and employees as may be necessary for the exercise of its powers and the discharge of its functions and may determine the terms and conditions of service of such officers and other employees by regulations made by it with the previous approval of the Central Government.
——————–
1. The words “one of its officers to be” omitted by Act, 26 of 1982.
Section 8. Funds of the Board.
The funds of the Board shall consist of grants made to it from time to time by the Government and of contributions, donations, subscriptions, bequests, gifts and the like made to it by any local authority or by any other person.
Section 9. Functions of the Board.
The functions of the Board shall be-
(a) To keep the law in force in India for the prevention of cruelty to animals under constant study and advise the Government on the amendments to be undertaken in any such law from time to time;
(b) To advise the Central Government on the making of rules under this Act with a view to preventing unnecessary pain or suffering to animals generally, and more particularly when they are being transported from one place to another or when they are used as performing animals or when they are kept in captivity or confinement;
(c) To advise the Government or any local authority or other person on improvements in the design of vehicles so as to lessen the burden on draught animals;
(d) To take all such steps as the Board may think fit for 1[amelioration of animals] by encouraging, or providing for, the construction of sheds, water-troughs and the like and by providing for veterinary assistance to animals;
(e) To advise the Government or any local authority or other person in the design of slaughter-houses or the maintenance of slaughter houses or in connection with slaughter of animals so that unnecessary pain or suffering, whether physical or mental, is eliminated in the pre-slaughter stages as far as possible, and animals are killed, wherever necessary, in as humane a manner as possible;
(f) To take all such steps as the Board may think fit to ensure that unwanted animals are destroyed by local authorities, whenever it is necessary to do so, either instantaneously or after being rendered insensible to pain or suffering;
(g) To encourage, by the grant of financial assistance or otherwise, 2[the formation or establishment of pinjrapoles, rescue homes animal shelters, sanctuaries and the like] where animals and birds may find a shelter when they have become old and useless or when they need protection;
(h) To co-operate with, and co-ordinate the work of, associations or bodies established for the purpose of preventing unnecessary pain or suffering to animals or for the protection of animals and birds;
(i) To give financial and other assistance to animal welfare organisations functioning in any local area or to encourage the formation of animal welfare organisations in any local area which shall work under the general supervision and guidance of the Board;
(j) To advise the Government on matters relating to the medical care and attention which may be provided in animal hospitals and to give financial and other assistance to animal hospitals whenever the Board thinks it necessary to do so;
(k) To impart education in relation to the humane treatment of animals and to encourage the formation of public opinion against the infliction of unnecessary pain or suffering to animals and for the promotion of animal welfare by means of lectures, books, posters, cinematographic exhibitions and the like;
(l) To advise the Government on any matter connected with animal welfare or the prevention of infliction of unnecessary pain or suffering on animals.
——————–
1. Subs. by Act 26 of 1982, S. 9(a) for the word “ameliorating the condition of beats of burden”.
2. Subs. by Act 26 of 1982; S. 9(b) for the words “the formation of pinjrapoles, sanctuaries and the like”.
Section 10. Power of Board to make regulations.
The Board may, subject to the previous approval of the Central Government, make such regulations as it may think fit for the administration of its affairs and for carrying out its functions.
Section 11. Section.
(1) If any person-
(a) Beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or cause, or, being the owner permits, any animal to be so treated’, or
(b) 1[Employs in any work or labour or for any purpose any animal which, by reason of its age or any disease] infirmity, wound, sore or other cause, is unfit to be so employed or, being the owner, permits any such unfit animal to be so employed; or
(c) Wilfully and unreasonably administers any injurious drug or injurious substance to 2[any animal] or wilfully and unreasonably causes or attempts to cause any such drug or substance to be taken by 2[any animal;] or
(d) Conveys or carries, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering; or (e) keeps or confines any animal in any cage or other receptacle which does not measure sufficiently in height, length and breadth to permit the animal a reasonable opportunity for movement; or
(f) Keeps for an unreasonable time any animal chained or tethered upon an unreasonably short or unreasonably heavy chain or cord; or
(g) Being the owner, neglects to exercise or cause to be exercised reasonably and dog habitually chained up or kept in close confinement; or
(h) Being the owner of 3[any animal] fails to provide such animal with sufficient food, drink or shelter; or
(i) Without reasonable cause, abandons any animal in circumstances which render it likely that it will suffer pain by reason of starvation or thirst; or
(j) Wilfully permits any animal, of which he is the owner, to go at large in any street while the animal is affected with contagious or infectious disease or, without reasonable excuse permits any diseased or disabled animal, of which he is the owner, to die in any street; or
(k) Offers for sale or, without reasonable cause, has in his possession any animal which is suffering pain by reason of mutilation, starvation, thirst, overcrowding or other illtreatment; or
4[(l) Mutilates any animal or kills any animal (including straydogs) by using the method of strychnine injections in the heart or in any other unnecessarily cruel manner; or]
5[(m) Solely with a view to providing entertainment
(i) Confines or causes to be confined any animal (including tying of an animal as a bait in a tiger or other sanctuary) so as to make it an object of prey for any other animal; or
(ii) Incites any animal to fight or bait any other animal; or]
(n) 6[x x x] Organizes, keeps, uses or acts in the management of, any place for animal fighting or for the purpose of baiting any animal or permits or offers any place to be so used or receives money for the admission of any other person of any place kept or used for any such purposes; or
(o) Promotes or takes part in any shooting match or competition wherein animals are released from captivity for the purpose of such shooting; he shall be punishable 7[in the case of a first offence, with fine which shall not be less than, ten rupees but which may extend to fifty rupees, and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both.]
(2) For the purposes of sub-section (1) an owner shall be deemed to have committed an offence if he has failed to exercise reasonable care and supervision with a view to the prevention of, such offence:
Provided that where on owner is convicted of permitting cruelty by reason only of having failed to exercise such care and supervision, he shall not be liable to imprisonment without the option of a fine.
(3) Nothing in this section shall apply to-
(a) The dehorning of cattle, or the castration or branding or nose-roping of any animal, in the prescribed manner; or
(b) The destruction of stray dogs in lethal chambers or 8[by such other methods as may be prescribed.] or
(c) The extermination or destruction of any animal under the authority of any law for the time being in force; or
(d) Any matter dealt with in Chapter IV; or
(e) The commission or omission of any act in the course of the destruction or the preparation for destruction of any animal as food for mankind unless such destruction or preparation was accompanied by the infliction of unnecessary pain or suffering.
——————–
1. Subs. by Act 26 of 1982, S. 10 (a) (i) for the words “employs in any work or labour any animal which, by reason of any disease”.
2. Subs. by Act 26 of 1982; S. I0 (a (ii) for the words “any domestic or captive animal”.
3. Subs. by Act 26 of 1982, S. 10(a)(iii) for the words “any captive animal”.
4. Subs. by Act 26 of 1982; S. 10(a)(iv) for the original clause.
5. Subs. by Act 26 of 1982; S. 10(a)(v) for the original clause.
6. The words “for the purpose of his business” omitted by Act 26 of 1982, S. 10(a)(vi).
7. Subs. by Act 26 of 1982; S. 10(a)(vii) for the portion beginning with the words “in the case of a first offence” and ending with the words “or with both”.
8. Subs. by Act 26 of 1982, S. 10(b), for the words “by other methods with a minimum of suffering.”
Section 12. Penalty for practising phooka or doom dev.
If any person performs upon any cow or other milch animal the operation called phooka or 1[doom dev or any other operation (including injection of any substance) to improve lactation which is injurious to the health of the animal] or permits such operation being performed upon any such animal in his possession or under his control, he shall be punishable with fine which may extend to one thousand rupees, or with imprisonment for a term which may extend to two years, or with both, and the animal on which the operation was performed shall be forfeited to the Government.
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1. Subs. by Act 26 of 1982; S. 11, for the words “doom dev”.
Section 13. Destruction of suffering animals.
(1) Where the owner of an animal is convicted of an offence under section 11, it shall be lawful for the court, if the court is satisfied that it would be cruel to keep the animal alive, to direct that the animal be destroyed and to assign the animal to any suitable person for that purpose, and the person to whom such animal is so assigned shall, as soon as possible, destroy such animal or cause such animal to be destroyed in his presence without unnecessary suffering; and any reasonable expense incurred in destroying the animal may be ordered by the court to be recovered from the owner as if it were a fine :
Providing that unless the owner assents thereto, no order shall be made under this section except upon the evidence of a veterinary officer in charge of the area.
(2) When any magistrate, commissioner of police or district superintendent of police has reason to believe that an offence under section 11 has been committed in respect of any animal, he may direct the immediate destruction of the animal, if in his opinion, it would be cruel to keep the animal alive.
(3) Any police officer above the rank of a constable or any person authorised by the State Government in this behalf who finds any animal so diseased or so severely injured or in such a physical conditions that in his opinion it cannot be removed without cruelty, may, if the owner is absent or refuses his consent to the destruction of the animal, forthwith summon the veterinary officer in charge of the area in which the animal is found, and if the veterinary officer certifies that the animal is mortally injured or so severely injured or in such a physical condition that it would be cruel to keep it alive, the police officer or the person authorised, as the case may be, may, after obtaining orders from a magistrate, destroy the animal injured or cause it to be destroyed 1[in such manner as may be prescribed.]
(4) No appeal shall lie, from any order of a magistrate for the destruction of an animal.
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1. Ins. by Act 26 of 1982, S. 12
Section 14. Experiments on animals.
Nothing contained in this Act shall render unlawful the performance of experiments (including experiments involving operations) on animals for the purpose of advancement by new discovery of physiological knowledge or of knowledge which will be useful for saving or for prolonging life or alleviating suffering or for combating any disease, whether of human beings, animals or plants.
Section 15. Committee for control and supervision of experiments on animals.
(1) If at any time, on the advice of the Board, the Central Government is of opinion that it is necessary so to do for the purpose of controlling and supervision experiments on animals, it may, by notification in the official Gazette, constitute a Committee consisting of such number of officials and non-officials, as it may think fit to appoint thereto.
(2) The Central Government shall nominate one of the Members of the Committee to be its Chairman.
(3) The Committee shall have power to regulate its own procedure in relation to the performance of its duties.
(4) The funds of the Committee shall consist of grants made to it from time to time by the Government and of contributions, donations, subscriptions, bequests, gifts and the like made to it by any person.
Section 15 A. Sub-Committees.
1[Sub-Committees. (1) The Committee may constitute as many subcommittees as it thinks fit for exercising any power or discharging any duty of the Committee or for inquiring into or reporting and advising on any matter which the Committee may refer.
(2) A sub-committee shall consist exclusively of the Members of the Committee.]
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1. Ins. by Act 26 of 1982, S. 13.
Section 16. Staff of the Committee.
Subject to the control of the Central Government, the Committee may appoint such number of officers and other employees as may be necessary to enable it to exercise its powers and perform its duties, and may determine the remuneration and other terms and conditions of service of such officers and other employees.
Section 17. Duties of the Committee and power of the Committee to make rules relating to experiments on animals.
(1) It shall be the duty of the Committee to take all such measures as may be necessary to ensure that animals are not subjected to unnecessary pain or suffering before, during or after the performance of experiments on them, and for that purpose it may, by notification in the Gazette of India and subject to the condition of previous publication, make such rules as it may think fit in relation to the conduct of such experiments.
1[(1A) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for the following, matters, namely:
(a) The registration of’ persons or institutions carrying on experiments on animals;
(b) The reports and other information which shall be forwarded to the Committee by persons and institutions carrying on experiments on animals.]
(2) In particular, and without prejudice to the generality of the foregoing power, rules made by the Committee shall be designed to secure the following Objects, namely:
(a) That in cases where experiments are performed in any institution, the responsibility therefor is placed on the person in charge of the institution and that, in cases where experiments are performed outside an institution by individuals, the individuals are qualified in that behalf and the experiments are performed on their full responsibility;
(b) That experiments are performed with due care and humanity, and as far as possible experiments involving operations are performed under the influence of some anaesthetic of sufficient power to prevent the animals feeling pain;
(c) That animals which, in the course of experiments under the influence of anaesthetics, are so injured that their recovery would involve serious suffering, are ordinarily destroyed while still insensible;
(d) That experiments on animals are avoided wherever it is possible to do so; as for example, in medical schools, hospitals, colleges and the like, if other teaching devices such as books, models, films and the like may equally suffice;
(e) That experiments on larger animals are avoided when it is possible to achieve the same results by experiments upon small laboratory animal like guineapigs, rabbits, frogs and rats;
(f) That, as far as possible, experiments are not performed merely for the purpose of acquiring manual skill;
(g) That animals intended for the performance of experiments are properly looked after both before and after experiments;
(h) That suitable records are maintained with respect to experiments performed on animals.
(3) In making any rules under this section, the Committee shall be guided by such directions as the Central Government (consistently with the object for which the Committee is set up) may give to it, and the Central Government is hereby authorised to give such directions.
(4) All rules made by the Committee shall be binding on all individuals performing experiments outside institutions and on person’s incharge of institutions in which experiments are performed.
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1. Ins. by Act 26 of 1982, S. 14.
Section 18. Power of entry and inspection.
For the purpose of ensuring that the rules made by it are being complied with, the Committee may authorise any of its officers or any other person in writing to inspect any institution or place where experiments are being carried on and report to it as a result of such inspection, and any officer or person so authorised may-
(a) Enter at any time considered reasonable by him and inspect any institution or place in which experiments on animals are being carried on; and
(b) Require any person to produce any record kept by him with respect to experiments on animals.
Section 19. Power to prohibit experiments on animals.
If the Committee is satisfied, on the report of any officer or other person made to it as a result of any inspection under section 18 or otherwise, that the rules made by it under section 17 are not being complied with by any person or institution carrying on experiments on animals, the Committee may, after giving an opportunity to the person or institution of being heard in the matter, by order, prohibit the person or institution from carrying on any such experiments either for a specified period or indefinitely, or may allow the person or institution to carry on such experiments subject to such special conditions as the Committee may think fit to impose.
Section 20. Penalties.
If any person-
(a) Contravenes any order made by the Committee under section 19; or
(b) Commits a breach of any condition imposed by the Committee under that section; he shall be punishable with fine which may extend to two hundred rupees, and, when the contravention or breach of condition has taken place in any institution the person in charge of the institution shall be deemed to be guilty of the offence and shall be punishable accordingly.
Section 21. Exhibit, and “train” defined.
In this Chapter, “exhibit means exhibit or any entertainment to which the public are admitted through sale of tickets, and “exhibitor” and “train for the purpose of any such exhibition, and the expressions “exhibitor” and “trainer” have respectively the corresponding meanings.
Section 22. Restriction on exhibition and training of performing animals.
No person shall exhibit or train –
(i) Any performing animal unless he is registered in accordance with the provisions of this chapter;
(ii) As a performing animal, any animals, which the Central Government may, by notification in the official Gazette, specify as an animal, which shall not be exhibited or trained as a performing animal,
Section 23. Procedure for registration.
(1) Every person desirous of exhibiting or training any performing animal shall, on making an application in the prescribed form to the prescribed authority and on payment of the prescribed fee, be registered under this Act unless he is a person who, by reason of an order made by the court under this Chapter, is not entitled to be so registered.
(2) An application for registration under this Chapter shall contain such particulars as to the animals and as to the general nature of the performance in which as may which the animals are to be exhibited or for which they are to be trained as may be prescribed, and the particulars so given shall be entered in the register maintained by the prescribed authority.
(3) The prescribed authority shall give to every person whose name appears on the register kept by them, a certificate of registration in the prescribed form containing the particulars entered in the register.
(4) Every register kept under this Chapter shall at all reasonable times be open for inspection on payment of the prescribed fee, and any person shall, on payment of the prescribed fee, be entitled to obtain copies thereof or make extracts therefrom.
(5) Any person whose name is entered provisions of any order made under this Act by any court, be entitled, on making an application for the purpose, to have the particulars entered in the register with respect to him varied, and where any such particulars are so varied, the existing certificate shall be cancelled and a new certificate issued.
Section 24. Power of court to prohibit or restrict exhibition and training of performing animals.
(1) Where it is proved to the satisfaction of any magistrate on a complaint made by a police officer or any off the prescribed authority referred to in section 23, that the training or exhibition of any performing animal has been accompanied by unnecessary pain or suffering and should be prohibited or allowed only subject to conditions, the court may make an order against the person in respect of whom the complaint is made, prohibiting the training or exhibition or imposing such conditions in relation thereto, as may be specified by the order.
(2) Any court by which an order is made under this section, shall cause a copy of the order to be sent, as soon as may be after the order is made, to the prescribed authority by which the person against whom the order is made is registered, and shall cause the particulars of the order to be endorsed upon the certificate held by that person, and that person shall produce his certificate on being so required by the court for the purposes of endorsement, and the prescribed authority to which a copy of an order is sent under this section shall enter the particulars of the order in that register.
Section 25. Power to enter premises.
(1) Any person authorised in writing by the prescribed authority referred to in section 23 and any police officer not below the rank of a sub-inspector may-
(a) Enter at all reasonable times and inspect any premises in which any performing animals are being trained or exhibited or kept for training or exhibition, and any such animals found therein; and
(b) Require any person who, he has reason to believe is a trainer or exhibitor of performing animals to produce his certificate of registration.
(2) No person or police officer referred to in sub-section (1) shall be entitled under this section to go on or behind the stage during a public performance of performing animals.
Section 26. Offences.
If any person–
(a) Not being registered under this Chapter, exhibits or trains any performing animal; or
(b) Being registered under this Act, exhibits or trains any performing animal with respect to which or in a manner with respect to which, he is not registered; or
(c) Exhibits or trains as a performing animal, any animal which is not to be used for the purpose by reason of a notification issued under clause (ii) of section 22; or
(d) Obstructs or wilfully delays any person or police officer referred to in section 25 in the exercise of powers under this Act as to entry and inspection; or
(e) Conceal any animal with a view to avoiding such inspection; or
(f) Being a person registered under this Act, on being duly required in pursuance of this Act to produce his certificate under this Act, fails without reasonable excuse so to do; or
(g) Applies to be registered under this Act when not entitled to be so registered. He shall be punishable on conviction with fine, which may extend to five hundred rupees, or with imprisonment, which may extend to three months, or with both.
Section 27. Exemptions.
Nothing contained in this Chapter shall apply to-
(a) The training of animals for bona fide military or police purpose or the exhibition of any animal so trained; or
(b) Any animals kept in any zoological garden or by any society or association, which has for its principal object the exhibition of animals for educational or scientific purposes.
Section 28. Saving as respects manner of killing prescribed by religion.
Nothing contained in this Act shall render it an offence to kill any animal in a manner required by the religion of any community.
Section 29. Power of court to deprive person convicted of ownership of animal.
(1) If the owner of any animal is found guilty of any offence under this Act the court upon his conviction thereof, may, if it thinks fit, in addition to any other punishment make an order that the animal with respect to which the offence was committed shall be forfeited to Government and may, further, make such order as to the disposal of the animal as it thinks fit under the circumstances.
(2) No order under sub-section (1) shall be made unless it is shown by evidences to a previous conviction under this Act or as to the character of the owner or otherwise as to the treatment of the animal that the animal, if left with the owner, is likely to be exposed to further cruelty.
(3) Without prejudice to the provisions contained in sub-section (1), the court may also order that a person convicted of an offence under this Act shall, either permanently or during such period as is fixed by the order, be prohibited from having the custody of any animal of any kind whatsoever, or as the court thinks fit of any animal of any kind or species specified in the order.
(4) No order under sub-section (3) shall be made unless-
(a) It is shown by evidence as to a previous conviction or as to the character of the said person or otherwise as to the treatment of the animal in relation to which he has been convicted that an animal in the custody of the said person is likely to be exposed to cruelty;
(b) It is stated in the complaint upon which the conviction was made that it is the intention of the complainant upon the conviction of the accused to request that an order be made as aforesaid; and
(c) The offence for which the conviction was made was committed in an area in which under the law for the time being in force a licence is necessary for the keeping of any such animal as that in respect of which the conviction was made.
(5) Notwithstanding anything to the contrary contained in any law for the time being in force, any person in respect of whom an order is made under subsection (3) shall have no right to the custody of any animal contrary to the provisions of the order, and if he contravenes the provisions of any order, he shall be punishable with fine which may extend to one hundred rupees, or with imprisonment for a term which may extend to three months, or with both.
(6) Any court, which has made an order under sub-section (3), may at any time, either on its own motion or on application made to it in this behalf, rescind or modify, such order.
Section 30. Presumption as to guilt in certain cases.
If any person is charged with the offences of killing a goat, cow or its progeny contrary to the provisions of clause (i) of sub-section (1) of section 11, and it is proved that such person had in his possession, at the time the offence is alleged to have been committed, the skin of any such animal as is referred to in this section with any part of the skin of the head attached thereto, it shall be presumed until the contrary is proved that such animal was killed in a cruel manner.
Section 31. Cognoscibility of offences.
Notwithstanding anything contained in the Code or Criminal Procedure, 1898, (5 of 1898) an offence punishable under clause (1)or clause (n) or clause (o) of sub-section (1) of section 11 or under section 12 shall be a cognizable offence within the meaning of that Code.
Section 32. Powers of search and seizure.
(1) If a police officer not below the rank of sub inspector or any person authorised by the State Government in this behalf has reason to believe that an offence under clause (1) of sub-section 11 in respect of any such animal as is referred to in section 30 is being, or is about to be, or has been, committed in any place, or that any person has in his possession the skin of any such animal with any part of the skin of the head attached thereto, he may enter and search such place or any place in which he has reason to believe any such skin to be, and may seize such skin or any article or thing used for intended to be used in the commission of such offence.
(2) If a police officer not below the rank of sub-inspector, or any person authorised by the State Government in this behalf, has reason be believe that phooka or 1[doom dev or any other operation of the nature referred to in section 12] has just been, or is being, performed on any animal within the limits of his jurisdiction, he may enter any place in which he has reason to believe such animal to be, and may seize the animal and produce it for examination by the veterinary officer in charge of the area in which the animal is seized.
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1. Subs, by Act 26 of 1982 S. 15 for the words “doom dev”.
Section 33. Search Warrants.
(1) If a magistrate of the first or second class or a presidency magistrate or a sub-divisional magistrate or a commissioner of police or district superintendent of police, upon information in writing, and after such inquiry as he thinks necessary, has reason to believe that an offence under this Act is being, or is about to be, or has been committed in any place, he may either himself enter and search or by his warrant authorise any police officer not below the rank of sub-inspector to enter and search the place.
(2) The provisions of the Code or Criminal Procedure, 1898, (5 of 1898) relating to searches shall so far as those provisions can be made applicable, apply to searches under this Act.
Section 34. General power of seizure for examination.
Any police officer above the rank of a constable or any person authorised by the State Government in this behalf, who has reason to believe that an offence against his Act has been or is being, committed in respect of any animal, may, if in his opinion the circumstances so require, seize the animal and produce the same for examination by the nearest magistrate or by such veterinary officer as may be prescribed, and such police officer or authorised person may, when seizing the animal, require the person in charge thereof to accompany it to the place of examination.
Section 35. Treatment and care of animals.
(1) The State Government, may be general or special order appoint infirmaries for the treatment and care of animals in respect of which offences against this Act have been committed, and may authorise the detention therein of any animal pending its production before a magistrate.
(2) The magistrate before whom a prosecution for an offence against this Ac has been instituted may direct that the animals concerned shall be treated and care for in an infirmary, until it is fit to perform its usual work or is otherwise fit for discharge, or that it shall be sent to a pinjrapole, or if the veterinary officer in charge of the area in which the animal is found or such other veterinary officer as may be authorised in this behalf by rules made under this Act certifies that it is incurable or cannot be removed without cruelty, that it shall be destroyed.
(3) An animal sent for care and treatment to an infirmary shall not, unless the magistrate directs that it shall be sent to a pinjrapole or that it shall be destoryed, be released from such place except upon a certificate of its fitness for discharge issued by the veterinary officer in charge of the area in which the infirmary is situated or such other veterinary officer as may be authorised in this behalf by rules made under this Act.
(4) The cost of transporting the animal to an infirmary or pinjrapole and of its maintenance and treatment in an infirmary, shall be payable by the owner of the animal in accordance with a scale of rates to be prescribed by the district magistrate, or, in presidency-towns, by the commissioner of police;
Provided that when the magistrate so orders on account of the poverty of the owner of the animal, no charge shall be payable for the treatment of the animal.
(5) Any amount payable by an owner of an animal under sub-section (4) may be recovered in the same manner as an arrear of land revenue.
(6) If the owner refuses or neglects to remove the animal within such time as a magistrate may specify, the magistrate may direct that the animal be sold and that the proceeds of the sale be applied to the payment of such cost.
(7) The surplus, if any, of the proceeds of such sale shall, on application made by the owner within two months from the date of the sale, be paid to him.
Section 36. Limitation of prosecutions.
A prosecution for an offence against this Act shall not be instituted after the expiration of three months from the date of the commission of the offence.
Section 37. Delegation of powers.
The Central Government may, by notification in the Official Gazette, direct that all or any of the powers exercisable by it under this Act, may, subject to such conditions as it may think fit to impose, be also exercisable by any State Government.
Section 38. Power to make rules.
(1) The Central Government may, by notification in the Official Gazette, and subject to the condition of previous publication, make rules to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, the Central Government may wake rules providing for all or any of the following matters, namely:
(a) The 1[x x x] conditions of service of members of the Board, the allowances payable to them and the manner in which they may exercise their powers and discharge their functions;
2[(aa) The manner in which the persons to represent municipal corporations are to be elected under clause (e) of sub-section (1) of section 5;],
(b) The maximum load (including any load occasioned by the weight of passengers) to be carried or drawn by any animal;
(e) The conditions to be observed for preventing the overcrowding of animals;
(d) The period during which, and the hours between which, any class of animals shall not be used for draught purposes;
(e) Prohibiting the use of any bit or harness involving cruelty to animals;
3[(ea) The other methods of destruction of stray dogs referred to in clause (b) of sub-section (3) of section 11;
(eb) The methods by which any animal which cannot be removed without cruelty may be destroyed under sub-section (3) of section 13;]
(f) Requiring persons carrying on the business of a farrier to be licensed and registered by such authority as may be prescribed and levying a fee for the purpose;
(g) The precautions to be taken in the capture of animals for purposes of sale, export or for any other purpose, and the different appliances or devices that may alone be used for the purpose; and the licensing of such capture and the levying of fees for such licences;
(h) The precautions to be taken in the transport of animals whether by rail, road, inland, waterway, sea or air and the manner in which and the cages or other receptacles in which they may be so transported;
(i) Requiring persons owning or in charge of premises in which animals are kept or milked to register such premises, to comply with such conditions as may be laid down in relation to the boundary walls or surroundings of such premises, to permit their inspection for the purpose of ascertaining whether any offence under this Act is being or has been committed therein, and to expose in such premises copies of section 12 in a language or languages commonly understood in the locality;
(j) The form in which applications for registration under Chapter V may be made, the particulars to be contained therein, the fees payable for such registration and the authorities to whom such applications may be made;
4[ja) The fees which may be charged by the Committee constituted under section 15 for the registration of persons or institutions carrying on experiments on animals or for any other purpose;]
(k) The purpose to which fines realised under this Act may be applied, including such purposes as the maintenance of infirmaries, pinjrapole and veterinary hospitals;
(l) Any other matter which was to be, or may be prescribed.
(3) If any person contravenes, or abets the contravention of, any rules made under this section, he shall be punishable with fine which may extend to one hundred rupees, or with imprisonment for a term which may extend to three months, or with both.
5[x x x ]
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1. The words “terms and” omitted by Act 26 of 1982, S, 16 (a) (i).
2. Ins. by Act 26 of 1982; S. 16 (a) (ii)
3. Ins. by Act 26 of 1982; S. 16 (a) (iii).
4. Ins. by Act 26 of 1982. S. 16(a) (iv).
5. “Sub-section (4) of the Principal Act” omitted by Act 26 of 1982, S. 16(b)
Section 38 A. Rules and Regulations to be laid before Parliament.
1[Rules and Regulations to be laid before Parliament. Every rule made by the Central Government or by the Committee constituted under section 15 and every regulation made by the Board 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 regulation, as the case may be, should not be made, the rule or regulation shall there after 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 or regulation.]
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1. Ins by Act 26 of 1982, S. 17.
Section 39. Persons authorised under Section 34 to be public servants.
Every person authorised by the Sate Government under section 34 shall be deemed to be a public servant within the meaning of section 21 of the Indian Panel Code.
Section 40. Indemnity.
No suit, prosecution or other legal proceeding shall lie against any person who is, or who is deemed to be, a public servant within the meaning of section 21 of the Indian Panel Code in respect of anything in good faith done or intended to be done under this Act.
Section 41. Repeal of Act 11 of 1890.
Where in pursuance of a notification under sub-section (3) of section 1 any provision of this Act comes into force in any State, any provision of the Prevention of Cruelty to Animals Act, 1890 (11 of 1890), which corresponds to the provision so coming into force, shall thereupon stand repealed.
