Specific Relief Act

November 30, 2014

Section 1. Short title, extent and commencement

(1) This Act may be called the Specific Relief Act, 1963.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force of such ^l[date] as the Central Government may, by notification in the Official Gazette, appoint.

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1. 1st March 1964.

Section 2. Definitions

In this Act, unless the context otherwise requires, -

(a) “Obligation” includes every duty enforce by law;

(b) “Settlement” means an instrument (other than a will or codicil as defined by the Indian Succession Act, 1925) whereby the destination or devolution of successive interests movable or immovable property is disposed of or is agreed to be disposed of;

(c) “Trust’ has the same meaning as in Section 3 of the Indian Trusts Act, 1882, and includes an obligation in the nature of a trust within the meaning of Chapter IX of that Act;

(d) “Trustee” includes every person holding property in trust;

(e) All other words and expressions used herein, but not defined, and defined in the Indian Contract Act, 1872, have the meanings respectively assigned to them in that Act.

Section 3. Savings

Except as otherwise provided herein, nothing in this Act shall be deemed. -

(a) To deprive any person of any right to relief, other than specific performance, which he may have under any contract; or

(b) To affect the operation of the Indian Registration Act, 1908, on documents.

Section 4. Specific relief to be granted only for enforcing individual civil rights and not for enforcing penal laws

Specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.

Section 5. Recovery of specific immovable property

A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure” 1908.

Section 6. Suit by person dispossessed of immovable property

(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by Suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit wider this section shall be brought. -

(a) After the expiry of six months from the date of dispossession; or (b) Against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

Section 7. Recovery of specific movable property

A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908.

Explanation 1

A trustee may sue under this section for the possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled.

Explanation 2

A special or temporary right to the present possession of movable property is sufficient to support a suit under this section.

Section 8. Liability of person in possession, not as owner, to deliver to persons entitled to immediate possession

Any person having the possession or control of a particular session of movable property is sufficient to support a suit under this compelled specifically to deliver it to the person entitled to its immediate possession, in any of the following cases: -

(a) When the thing claimed is held by the defendant as the agent or trustee of the plaintiff,

(b) When compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed;

(c) When it would be extremely difficult to ascertain the actual damage caused by its loss;

(d) When the possession of the thing claimed has been wrongfully transferred from the plaintiff.

Explanation

Unless and until he contrary is proved, the court shall, in respect of any article of movable property claimed under clause (b) or clause (c) of this section, presume-

(a) That compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed, or, as the case may be;

(b) That it would be extremely difficult to ascertain the actual damage caused by its loss.

Section 9. Defences respecting suits for relief based on contract

Except as otherwise provided herein, where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief is claimed may plead by way of defense any ground which is available to him under any law relating to contracts.

Section 10. Cases in which specific performance of contract enforceable

Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced-

(a) When there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or

(b) When the act agreed to be done is such that that compensation in money for its non-performance would not afford adequate relief.

Explanation

Unless and until the contrary is proved, the court shall presume. -

(i) That the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and

(ii) That the breach of a contract to transfer movable property can be so relieved except in the following cases: -

(a) Where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods, which are not easily obtainable in the market;

(b) Where the property is held by the defendant as the agent or trustee of the plaintiff.

Section 11. Cases in which specific performance of contracts connected with trusts enforceable

(1) Except as otherwise provided in this Act, specific performance of a contract may, in the discretion of the court, be enforced, when the act agreed to be done is in the performance wholly or partly of a trust.

(2) A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically enforced.

Section 12. Specific performance of part of contract

(1) Except as otherwise hereinafter provided in this section the court shall not direct the specific performance of a part of a contract.

(2) Where a party to a contract is unable to perform the whole of his part of it. But the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.

(3) Where a party to a contract is unable to perform the whole of his part of it, and the part, which must be left unperformed either-

(a) Forms a considerable part of the whole, though admitting of compensation in money; or

(b) Does not admit of compensation in money;

He is not entitled to obtain a decree for specific performance; but the court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party-

(i) In a case falling under clause (a), pays, or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case filling under clause (b), pays or had paid the consideration for the whole of the contract without any abatement; and

(ii) In either caste, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.

(4) When a part of a contract which, taken by itself, call and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.

Explanation

For the purposes of this section, a party to a contract shall he deemed to be unable to perform the whole of his part of it if a portion of its subject latter existing at the date of the contract has ceased to exist at the time of its performance.

Section 13. Rights of purchaser or lessee against person with no title or imperfect title

(1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely: -

(a) If the vendor or less or has Subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;

(b) Where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or less or, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance;

(c) Where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase money and the vendor has in fact only as right to redeem it, the purchaser may compel him to redeem, the mortgage and to obtain a valid discharge, and, where necessary, also a conveyance from the mortgage;

(d) Where the vendor or less or sues for specific performance of the contract and the suit is dismissed on the ground of his want of title or imperfect tide, the defendant has a right to a return of, his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest, if any, of the vendor or less or in the property which is the subject-matter of the contract.

(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.

CONTRACTS, WHICH CANNOT BE SPECIFICALLY ENFORCED

Section 14. Contracts not specifically enforceable

(1) The following contracts cannot be specifically enforced, namely-

(a) A contract for the non-performance of which compensation is an adequate relief,

(b) A contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;

(c) A contract, which is in its nature determinable;

(d) A contract the performance of which involves the performance of a continuous duty, which the court cannot supervise.

(2) Save as provided by the Arbitration Act; 1940, no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.

(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), the court may enforce specific performance in the following cases: -

(a) Where the suit is for the enforcement of a contract-

(i) To execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once: Provided that where only a part of the loan has been advanced the vendor is willing to advance the remaining part of the loan in terms of the contract; or

(ii) To take up and pay for any debentures of a company;

(b) Where the suit is for,-

(i) The execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or

(ii) The purchase of a share of a partner in a firm;

(c) Where the suit is for the enforcement of a contract for the-construction of any building or the execution of any other work on land:

Provided that the following conditions are fulfilled, namely:-

(i) The building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;

(ii) The plaintiff has a substantial interest in the performance of ale contract and the interest is of such a nature that compensation in money for non-performance of the contract is not in adequate relief, and

(iii) The defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.

Section 15. Who may obtain specific performance

Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by-

(a) Any party thereto;

(b) The representative in interest or the principal, of any party thereto:

Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party;

(c) Where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder;

(d) Where the contract has been entered into by a tenant for life in due exercise of a power, the remainderman;

(e) Reversioner in possession, where the agreement is a covenant entered into with his predecessor in title and the reversioner is entitled to the benefit of such covenant;

(f) A reversioner in reminder, where the agreement is such a covenant, and the reversioner are entitled to the benefit thereof and will sustain material injury by reason of its breach;

(g) When a company has entered into a contract and subsequently becomes amalgamated with another company, the new company that arises out of the amalgamation;

(h) When the promoters of a company have, before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company:

Provided that the company has accepted the contract and has communicated such acceptance to the other party to the contract.

Section 16. Personal bars to relief

Specific performance of a contract cannot be enforced in favour of a person-

(a) Who would not be entitled to recover compensation for its breach; or

(b) Who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or ill fully acts at variance with, or in subversion of, the relations intended to be established by the contract; or

(c) Who fails to aver and prove that he has or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant.

Explanation

For the purposes of clause I, -

(i) Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) The plaintiff must ever performance of, or readiness and willing perform, the contract according to its true construction.

Section 17. Contract to sell or let property by one who has not title, not specifically enforceable

(1) A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor. -

(a) Who, knowing not to have any title to the property, has contracted to sell or let the property;

(b) Who, though he entered into the contract believing that he had a good title to by the parties or by the court for the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.

(2) The provisions of sub-section (1) shall also apply as far may be, to contracts for the sale or hire of movable property.

Section 18. Non-enforcement except with variation

Where a plaintiff seeks specific performance of a contract in writing, to which the defendant sets up a variation, the plaintiff cannot obtain the performance sought, except with the variation so set up, in the following cases, namely. -

(a) Where by fraud, mistake or fact or misrepresentation, the written contract of which performance is sought is in its terms or effect different from what the parties agreed to, or does not contain all the terms agreed to between the parties on the basis of which the defendant entered into the contract;

(b) Where the object of the parties was to produce a certain legal result, which the contract as framed, is not calculated to produce;

(c) Where the parties have subsequently to the execution of the contract, varied its terms.

Section 19. Relief against parties and persons claiming under them by subsequent title

Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-

(a) Either party thereto;

(b) Any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;

(c) Any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;

(d) When a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;

(e) When the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company:

Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract.

Section 20. Discretion as to decreeing specific performance

(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

(2) The following are cases in which the court may property exercise discretion not to decree specific performance:-

(a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the -contract was entered into are such that the contract, though not void able, gives the plaintiff an unfair advantage over the defendant; or

(b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff, or

(c) Where the defendant entered into the contract under circumstances, which though not rendering the contract void able, makes it inequitable to enforce specific performance.

Explanation 1

Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).

Explanation 2

The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.

Section 21. Power to award compensation in certain cases

(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.

(2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.

(3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.

(4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in Section 73 of the Indian Contract Act, 1872.

(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint:

Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.

Explanation

The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section.

Section 22. Power to grant relief for possession, partition, refund of earnest money, etc

(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-

(a) Possession, or partition and separate possession. of the property, in addition to such performance; or

(b) Any other relief to which he may be entitled, including the refund of any earliest money or deposit paid or made by him, in case his claim for specific performance is refused.

(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed:

Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the court to grant relief under cleanse (b) of subsection (1) shall be without prejudice to its powers to award compensation under Section 21.

Section 23. Liquidation of damages not a bar to specific performance

(1) A contract, otherwise proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the court, having regard to the terms of the contract, and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance.

(2) When enforcing specific performance under this section, the court shall not also decree payment of the sum so named in the contract.

Section 24. Bar of suit for compensation for breach after dismissal of suit for specific performance

The dismissal of a suit for specific performance of a contract or part thereof shall bar the plaintiff’s right to sue for compensation for the breach of such contract or part, as the case may be, but shall not bar his right to sue for any other relief to which he may be entitled, by reason of such breach.

ENFORCEMENT OF AWARDS AND DIRECTIONS TO EXECUTE SETTLEMENTS

Section 25. Application of preceding sections to certain awards and testamentary directions to execute settlements

The provisions of this Chapter as to contracts shall apply to awards to which the Arbitration Act, 1940, does not apply and to directions in a will or codicil to execute a particular settlement.

Section 26. When instrument may be rectified

(1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956, applies) does not express their real intention, then-

(a) Either party or his representative in interest may institute a suit to have the instrument rectified; or

(b) The plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or

(c) A defendant in any such suit as is referred ‘to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.

(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.

(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.

(4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed:

Provided that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim.

Section 27. Where rescission may be adjudged or refused

(1) Any person interested in a contract may sue to have it rescinded, and such rescission may be adjudged by the court in any of the following cases namely:-

(a) Where the contract is void able or terminable by the plaintiff,

(b) Where the contract is unlawful for causes not, apparent on its face and the defendant is more to blame than the plaintiff.

(2) Notwithstanding anything contained in subsection (1), the court may refuse to rescind the contract-

(a) Where the plaintiff has expressly or impliedly ratified the contract; or

(b) Where, owing to the change of circumstances which has taken place since the making of the contract (not being due to any act of the defendant himself), the parties cannot be substantially restored to the position in which they stood when the contract was made; or

(c) Where third parties have, during the subsistence of the contract, acquired rights in good faith without notice and for value; or

(d) Where only a part of the contract is sought to be rescinded and such part is not severable from the rest of the contract.

Explanation

In this section “contract”, in relation to the territories to which the Transfer of Property Act, 1882, does not extend, means a contract in writing.

Section 28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed

(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.

(2) Where a contract is rescinded under sub-section (1), the court. -

(a) Shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor; and

(b) May direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property form the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and if the justice of the case so requires, the refund of any sum paid by the vendee or the lessee as earnest money or deposit in connection with the contract.

(3) If the purchaser or lessee pays the purchase money or other sum which lie is ordered to pay under the decree within the period referred to in subsection (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following relief’s, namely:-

(a) The execution of a proper conveyance or lease by the vendor or lessor;

(b) The delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.

(4) No separate suit in respect of any relief, which may be claimed under this section, shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be,

(5) The costs of any proceedings under this section shall be in the discretion of the court.

Section 29. Alternative prayer for rescission in suit for specific performance

A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the court, if it refused to enforce the contract specifically, may direct it to be rescinded and delivered tip accordingly.

Section 30. Court may require parties rescinding to do equity

On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to restore, so far a may be, any benefit which he may have received from the other party and to make any compensation to him which justice may require;

Section 31. When cancellation may be ordered

(1) Any person against whom a written instrument is void or void able, and who has reasonable apprehension that such instrument. if left outstanding may cause him serious injury, may sue to have it adjudged void or void able; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908, the court shall also send a copy of its decree to the officer in whose officer the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

Section 32. What instruments may be partially cancelled

Where an instrument is evidence of different rights or different obligations, the court may, in a proper case cancel it in part and allows it to stand for residue.

Section 33. Power to require benefit to be restored or compensation to be made when instrument is cancelled or is successfully resisted as being void or voidable

(1) On adjudging the cancellation of an instrument, the Court may require the party to Whom such relief is granted, to restore, so far as may be any benefit which he may have received from the other party and to make any compensation to him which justice may require.

(2) Where a defendant successfully resists any suit on the ground. -

(a) That the instrument sought to be enforced against him in the suit is voidable. the court may if the defendant has received any benefit under the instrument from the other party, require him to restore, so far as may be, such benefit to that party or to make compensation for it;

(b) That the agreement, ought to be enforced against him in the Suit is Void by reason of his not having been competent to contract under Section II of the Indian Contract Act, 1972, the court may, if the defendant has received any benefit under the agreement from the other party, require him to restore, so far as may be. such benefit to that party, to the extent to which he or his estate has benefited thereby.

Section 34. Discretion of court as to declaration of status or right

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such, suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation

A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.

Section 35. Effect of declaration

A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of declaration, such parties would be trustees.

Section 36. Preventive relief how granted

Preventive relief is granted, it the discretions of the court by injunction, temporary or perpetual.

Section 37. Temporary and perpetual injunctions

(1) Temporary injunction is such as are to continue until a specific time, or until the further order of Civil Procedure, may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.

(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a Tight, or from the commission of an act, which would be contrary to the rights of the plaintiff.

Section 38. Perpetual injunction when granted

(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:-

(a) Where the defendant is trustee of the property for the plaintiff;

(b) Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(c) Where the invasion is such that compensation in money would not afford adequate relief;

(d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Section 39. Mandatory injunctions

When to prevent the breach of an obligation, it is necessary to compel the performance of certain acts, which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

Section 40. Damages in lieu of, or in addition to, injunction

(1) The plaintiff in a suit for perpetual injunction under Section 38, or mandatory injunction under Section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages.

(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint:

Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.

(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.

Section 41. Injunction when refused

An injunction cannot be granted. -

(a) To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restrain is necessary to prevent a multiplicity of proceedings;

(b) To restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;

(c) To restrain any person from applying to any legislative body.

(d) To restrain any person from instituting or prosecuting any proceeding in a criminal matter;

(e) To prevent the breach of a contract the performance of which would not be specifically enforced;

(f) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that :It will be a nuisance;

(g) To prevent a continuing breach in which the plaintiff has acquiesced;

(h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;

(j) When the plaintiff has a no personals interest in the matter.

Section 42. Injunction to perform negative agreement

Notwithstanding anything contained in clause (e) of Section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstances that the court is unable to compel specific performance of’ the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement:

Provided that the plaintiff has not failed to perform the contract so far as it is binding on him.

Section 43. Amendment of Act 10 of 1940

[Rep. by the Repealing and Amending Act, 1974 (56 of 1974)].

Section 44. Repeal

[Rep. by the Repealing and Amending Act, 1974 (56 of 1974)].

Indian Trusts Act

November 30, 2014

Chapter I – Preliminary

Section 1. Short title and commencement.

This Act may be called the Indian Trusts Act, 1882, and it shall come into force on the first day of March, 1882.

Local extent, savings. -It extends to the whole of India ¹[except the State of Jammu and Kashmir and the Andaman and Nicobar Islands] but the Central Government may, form time to time, by notification in the Official Gazette, extend it to the Andaman and Nicobar Islands or to any part thereof. But nothing herein contained affects the rules of Mohammdan law as to Waqf or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors; and nothing in the Second Chapter of this Act applies to trusts created before the said day.

1. Subs by Act No.3 of 1951, for “except part B states”.

Section 2. Repeal of enactments.

The Statute and Acts mentioned in the Schedule hereto annexed shall, to the extent mentioned in the said Schedule, be repealed in the territories to which this Act for the time being extends.

Section 3. Interpreation-clause.Trust.

A “trust” is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner;

The person who reposes or declares the confidence is called the “author of the trust”; the person who accepts the confidence is called the “trustee”; the person for whose benefit the confidence is accepted is called the “beneficiary”; the subject-matter of the trust is called “trust-property” or “trust-money”; the “beneficial interest” or “interest” of the beneficiary is his right against the trustee as owner of the trust-property; and the instrument, if any, by which the trust is declared is called the “instrument of trust”;

A breach of any duty imposed on a trustee, as such, by any law for the time being in force is called a “breach of trust”;

And in this Act, unless there be something repugnant in the subject or context, registered” means registered under the law for the registration of documents for the time being in force; a person is said to have notice” of a fact either when he actually knows that fact, or when, but for wilful abstention from inquiry or gross negligence, lie would have known it, or when information of the fact is given to or obtained by his agent, under the circumstances mentioned in the Indian Contract Act, 1872, Section 229; and all expressions used herein and defined in the Indian Contract Act, 1872, shall be deemed to have the meanings respectively attributed to them by that Act.

Chapter II – OF THE CREATION OF TRUSTS

Section 4. Lawful purpose.

A trust may be created for any lawful purpose. The purpose of trust is lawful unless it is (a) forbidden by law, or (b) is of such a nature that, if permitted, it would defeat the provisions of any law, or (c) is fraudulent, or (d) involves or implies injury to the person or property of another, or (e) the Court regards it as immoral or opposed to public policy. Every trust of which the purpose is unlawful is void. In addition, where a. trust is created for two purposes, of which one is lawful and the other unlawful, and the two purposes cannot be separated, the whole trust is void.

Explanation

In this section, the expression “law” includes, where the trust-property is immoveable and situate in a foreign country, the law of such country.

Illustrations

(a) A conveys property to B in trust to apply the profits to tile nurture of female fondings to be trained up as prostitutes. The trust is void.

(b) A bequeaths property to B, in trust to employ it in carrying on a smuggling business, and out of the profits thereof to support A’s children. The trust is void:

(c) A, while in insolvent circumstances transfers’ property to B in trust for A during his life, and after his death for B. A is declared an insolvent. The trust for A is invalid as against his creditors.

Section 5. Trust of immovable property.

No trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.

Trust of movable property. -No trust in relation to movable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee.

These rules do not apply where they would operate to make a fraud.

Section 6. Creation of trust.

Subject to the provisions of Section 5, a trust is created when the author of the, trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee.

Illustrations

(a) A bequeaths certain property to B, “having the fullest confidence that he will dispose of it for the benefit of’ C. This creates a trust so far as regards A and C.

(b) A bequeaths certain property to B “hoping he will continue it in the family”. This does not create a trust, as the beneficiary is not indicated with reasonable certainty.

(c) A bequeaths certain property to B, requesting him to distribute it among such members of C s family as B should think most deserving. This does not create a trust, for the beneficiaries are not indicated with reasonable certainty.

(d) A bequeaths certain property to B, desiring him to divide the bulk of it among among C’s children. This does not create a trust, for the trust-property is not indicated with sufficient certainty.

(e) A bequeaths a shop and stock-in-trade to B, on condition that he pays A’s debts and a legacy to C. This is a condition, not a trust for A’s creditors and C.

Section 7. Who may create trusts.

A trust may be created-

(a) By every person competent to contract, and

(b) With the permission of a principal Civil Court of original jurisdiction, by or on behalf of a minor;

But subject in each case to the law for the time being in force as to the circumstances and extent in and to which the author of the trust may dispose of the trust-property.

Section 8. Subject of trust.

The subject matter of a trust must be property transferable to the beneficiary.

It must not be merely beneficial interest under a subsisting trust.

Section 9. Who may be beneficiary.

Every Person capable of holding property may he a beneficiary.

Disclaimer by beneficiary. -A proposed beneficiary may renounce his interest under the trust by disclaimer addressed to the trustee, or by setting up, with notice of the trust, a claim inconsistent therewith.

Section 10. Who may be trustee.

Every Person capable of holding property may be a trustee; but, where the trust involves the exercise of discretion, he cannot execute it unless he is competent to contract.

No one bound to accept trust. -No one is bound to accept a trust.

Acceptance of trust. -A trust is accepted by ally words or acts of the trustee indicating with reasonable certainly such acceptance.

Disclaimer of trust. -Instead of accepting a trust, the intended trustee may, within a reasonable period, disclaim it and such disclaimer shall prevent the trust-property from vesting in him.

A disclaimer by one of two or others, and makes him or them sole trustee or trustees from the date of the creation of the trust.

Illustration

(a) A bequeaths certain property to B and C, his executors, as trustees for D, B and C prove A’s will. Ibis is in itself an acceptance of the trust, B and C hold the property in trust for D.

(b) A transfers certain Property to B in trust to sell it and to pay out of the Proceeds A’s debts. B accepts the trust and sells the property. So far as regards B, a trust of the proceeds is created for A’s creditors.

(c) A bequeaths a lakh of rupees to B upon certain trusts and appoints him his executor. B severs the lakh from the general assets and appropriates it to the specific purpose. This is an acceptance of the trust.

Chapter III – OF THE DUTIES AND LIABILITIES OF TRUSTEES

Section 11. Trustee to execute trust.

The trustee is bound to fulfil the purpose of the turst, and to obey the directions of the author of the given at the time of its creation, except as modified by the consent of all the beneficiaries being competent to contract.

Where the beneficiary is incompetent to contract, his consent may, for the purposes of this section, begen by a principal Civil Court of original jurisdiction. Nothing in this section shall be deemed to require a trustee to obey any direction when to do so would be impracticable, illegal or maifastly injurious to the beneficiaries.

Explanation-Unless a contrary intention be expressed, the purpose of a trust for the payment of debts shall be deemed to be (a) to pay only the debts of the author of the trust existing and recoverable at the date of the instrument of trust, or, when such instrument is a will, at the date of his death, and (b) in the case of debts not bearing interest, to make such payment without interest.

Illustration

(a) A, a trustee, is simply authorized to sell certain land by Public auction. He cannot sell the land by private contract. (b) A, a trustee of certain land for X, Y and Z, is authorized to sell the land to B for a specified sum. X, Y and Z, being competent to contract, consent that A may sell the land to C for a less sum. A may sell the land accordingly.

(c) A, a trustee for B and her children, is directed by the author of the trust to lend, on B’s request, trust property to B’s husband, C, on the security of his bond. C becomes insolvent and B requests A to make the loan. A may refuse to make it.

Section 12. Trustee to inform himself of state of trust-property.

A trustee is bound to acquaint himself, as soon as possible, with the nature and circumstances of the trust property; to obtain, where necessary, a transfer of the trust-property to himself; and subject to the provisions of the instrument of trust) to get in trust-moneys invested oil insufficient or hazardous security.

Illustrations

(a) The trust-property is a debt outstanding on personal security. The instrument of trust gives the trustee no discretionary power to leave the debt so outstanding. The trustee’s duty is to recover the debt without unneccessary delay.

(b) The trust-property is money in the hands of one of two co-trustees. No discretionary power is given by the instrument of trust. The other co-trustee must not allow the former to retain the money for a longer period than the circumstances of the case required.

Section 13. Trustee to protect title to trust-property.

A trustee is bound to maintain and defend all such suits, and (subject to the provisions of the instrument of trust) to take such other steps as, regard being had to the nature and amount or value of the trust-property, may be reasonably requisite for the preservation of the trust-property and the assertion or protection of the tide thereto.

Illustration

The trust-property is immovable property which has been I given to the author of the trust by an unregistered instrument. Subject to the provisions of the ¹[Indian Registration Act, 1877] the trustee’s duty is to cause the instrument to be registered.

1. See now the Indian Registration Act, 1908.

Section 14. Trustee not to set up title adverse to beneficiary.

The trustee must not for himself or another set up or aids any title to the trust-property adverse to the interest of the beneficiary.

Section 15. Care required from trustee.

A truste is bound to deal with the trust-property as carefully as a man of ordinary prudence would deal with such property if it were his own; and, in the absence of a contract to the contrary, a trustee so dealing is not responsible-for the loss, destruction or deterioration of the trust-property.

Illustrations

(a) A, living in Calcutta, is a trustee for B, living in Bombay. A remits trust-funds to B by bills drawn by a person of undoubted credit in favour of die trustee as such, and payable at Bombay. The bills are dishonoured. A is not bound to make good the loss.

(b) A, a trustee of leasehold property, directs the tenant to pay the rents on account of the trust to a banker B, then in credit. The rents are accordingly paid to B, and A leaves the money with B, and A leaves the money with B, only till wanted. Before the money is drawn out. B becomes insolvent. A, having had not reason to believe that B was in insolvent circumstances, is not bound to make good the loss.

(c) A, a trustee of two debts for B, releases one and compounds the other, in good faith and reasonably believing that it is for B’s interest to do so. A is not bound to make good any loss caused thereby to B.

(d) A, a trustee directed to sell the trust-property by auction, sells the same but does not advertise the sale and otherwise fail in reasonable dilligence in inviting competition. A is bound to make good the loss caused thereby to the beneficiary.

(e) A, a trustee for B, in execution of his trust, sells the trust-property, but for want of the due diligence on his part fails to receive part of the purchase-money. A is bound to make good the loss thereby caused to B.

(f) A, a trustee for B of a policy of insurance, has funds in hand for payment of the premiums. A neglects to pay the premiums, and the policy is consequently forfeiled. A is bound to make good the loss to B.

(g) A bequeaths certain moneys to B and C as trustees, and authorizes them to continue trust-moneys upon the personal security of a certain firm in which A had himself invested them. A dies, and a change takes place in the firm. B and C must not permit the moneys to remain upon tile personal security of tile new firm.

(h) A, a trustee for B, allows tile trust to be executed soley by his co-trustee, C. C misapplies the trust-property. A is personally answerable to the loss resulting to B.

Section 16. Conversion of perishable property.

Where the trust is created for the benefit of several persons in succession, and the trust-property is of a wasting nature or a future or reversionary interest, the trustee is bound unless all intention to the contrary may be inferred from the instrument of trust, to convert the property into property of a permanent and immediately profitable character. -

Illustration

(a) A bequeaths to B all his property in trust for C during his life, and on his death for D, and oil D’s death for E. A’s property consists of three leasehold houses and there is nothing in A’s will to show that he intended the houses to be enjoyed in specie. B should sell the houses, and invest the proceeds in accordance with Section 20.

(b) A bequeaths to B his three leasehold houses in Calcutta and all the furniture therein in trust for C during his life, and on his death for D, and on D’s death for E. Here anlintention that the houses and furniture should be enjoyed in specie appears clearly, and B should not sell them.

Section 17. Trustee to be impartial.

Where there ire more beneficiaries than one, die trustee is bound to be impartial, and trust not execute the trust for the advantage of one at the expense of another.

Where the trustee has a discretionary power, nothing in this section shall be deemed to authorize the Court to control the exercise reasonably and in good faith of such discretion.

Illustration

A, a trustee for B, C and D is empowered to choose between several specified anodes of investing the trust-property A in good faith chooses one of these modes. The Court will not interfere, although the result of tile choice may be to vary the relative rights of B. C and D.

Section 18. Trustee to prevent waste.

Where the trust is created for the benefit of several persons in succession and one of them is in possession of the trust-property, if he commits, or threatens to commit, any act, which is destructive, or permanently injurious thereto, the trustee is bound to take measures to prevent such act.

Section 19. Accounts and information.

A trustee is bound (a) to keep clear and accurate accounts of the trust-property, and (b) at all reasonable times, at the request of the beneficiary, to furnish him with fill and accurate information as to the amount and state of the trust-property.

Section 20. Investment of trust-money.

Where the trust-property consists of money and cannot by applied immediately or at all early date to the purposes of the trust, the trustee is bound (subject to any direction contained in the instrument of trust) to invest the money on the following securities, and on no others:

(a) In promissory notes, debentures, stock or other securities of any State Government or of the Central Government or of the United Kingdom of Great Britain and Ireland:

Provided that securities, both the principal whereof and the interest whereon shall have been fully and unconditionally guaranteed by any such Government shall be deemed, for the purposes of this clause, to be securities of such Government.

(b) In bonds, debentures and annuities charged or secured by the Parliament of the United Kingdom before the fifteenth day of August, 1947 on the revenues of India or of the Governor General in Council or of any Province:

Provided that, after the fifteenth day of February, 1916, no money shall be invested in any such annuity being a terminable annuity unless a sinking fund has been established in connection with such annuity; but nothing in this proviso shall apply to investments made before the date aforesaid:

(bb) In India three and a half percent stock, India three per cent stock, India two and a half per cent stock or any other capital stock, which before the 15th day of August, 1947, was issued by the Secretary of State for India in Council under the authority of an Act of Parliament of the United Kingdom and charged on the revenues of India or which was issued by the Secretary of State on behalf of the Governor-General in Council under the provisions of Part XIII of the Government of India Act, 1935;

(c) In stock or debentures of, or shares in, Railway or other Companies the interest whereon shall have been guaranteed by the Secretary of State for India in Council or by the Central Government or in debentures of the Bombay Provincial Co-operative Bank Limited, the interest whereon shall have been guaranteed, by the Secretary of State for India in Council or the State Government of Bombay;

(d) In debentures or other securities for money issued under the authority of any Central Act or Provincial Act or State Act, by or on behalf of any municipal body, port trust or city improvement trust in any Presidency-town, or in Rangoon Town, or by or on behalf of the trustees of the port of Karachi:

Provided that after the 31st day of March, 1948, no money shall he invested in any securities issued by or on behalf of a municipal body, port trust or city improvement trust in Rangoon Town, or by or on behalf of the trustees of the port of Karachi;

(e) On a first mortgage of immovable property situate in any part of the territories to which this Act extends: provided that the property is not a leasehold for a term of years and that the value of the property exceeds by one-third, or, if consisting of buildings, exceeds by one-half, the mortgage money ¹[* * * *] ²[(ee) in units issued by the Unit Trust of India under any unit scheme made under Section 21 of the Unit Trust of India Act, 1963; or]

(f) On any other security expressly authorized by the instrument of trust, [or by the Central Government by notification in the official gazette,] or by any rule which the High Court may from time to time prescribed in this behalf:

Provided that, where there is a person competent to contract and entitled in possession to receive the income of the trust-property for his life, or for any greater estate, no investment on any security mentioned or referred to in clauses (d), (e) and (f) shall be made without his consent in writing.

1. Certain words omitted by Act No. 16 of 1975.

2. Inserted by Act No. 16 of 1975.

Section 20-A. Power to purchase redeemable stock at a premium.

(1) A trustee may invest in any of the securities mentioned or referred to in Section 20, notwithstanding that -the same may be redeemable and that the price exceeds the redemption value:

Provided that a trustee may not purchase at a price exceeding its redemption value any security mentioned or referred to in clauses (c) and (d) of Section 20 which is liable to be redeemed within fifteen years of the date of purchase at par or at some other fixed rate, or purchase any such security as it mentioned or referred to in the said clause which is liable to be redeemed at par or at some other fixed rate at a price exceeding fifteen per centum above par or such other fixed rate.

(2) A trustee may retain until redemption any redeemable stock, fund or security which may have been purchased in accordance with this section.

Section 21. Mortgage of land pledged to Government under Act 26 of 1871.

Deposit in Government Savings Bank. -Nothing in Section 20 shall apply to investments made before this Act comes into force, or shall be deemed to preclude an investment on a mortgage of immovable property already pledged as security for an advance under the Land Improvement Act, 1871 or, in case the trust-money does not exceed three thousand rupees, a deposit thereof in a Government Savings Bank.

Section 22. Sale by trustee directed to sell within specified time.

Where a trustee directed to sell within a specified time extends such time, the burden of proving, as between himself and the beneficiary, that the latter is not prejudiced by the extension lies upon the trustee, unless the extension has been authorized by a, principal Civil Court of original jurisdiction.

Illustration

A bequeaths property to B, directing him with all convenient speed and within five years to sell it, and apply the proceeds for the benefit of C. In the exercise of reasonable discretion, B postpones the sale for six years. The sale is not thereby rendered invalid, but C, alleging that he has been injured by the postponement, institutes a suit against B to obtain compensation. In such suit the burden of proving that C has not been injured lies on B.

Section 23. Liability for breach of trust.

Where the trustee commits a breach of trust, he is liable to make good the loss which the trust-property or the beneficiary has thereby sustained, unless the beneficiary has by fraud induced the trustee to commit the breach, or the beneficiary, being competent to contract, has himself, without coercion or undue influence having been brought to bear to him, concurred in the breach, or subsequently acquiesced therein, with full knowledge of facts of the case and of his rights as against the trustee.

A trustee committing a breach of trust is not liable to pay interest except in the following cases:

(a) Where he has actually received interest;

(b) Where the breach consists in unreasonable delay in paying trust-money to the beneficiary;

(c) Where the trustee ought to have received interest, but has not done so;

(d) Where he may be fairly presumed to have received interest.

He is liable, in case (a), to account for the interest actually received, and, in cases (b), (c) and (d), to account for simple interest at the rate of six per cent per annum, unless the Court otherwise directs.

(e) Where the breach consists in failure to invest trust-money and to accumulate the interest or dividends thereon, he is liable to account for Compound interest (with half-yearly rests) at the same rate;

(f) Where the breach consists in the employment of trust- property or the proceeds thereof in trade or business, he is liable to account, at the option of the beneficiary, either for compound interest (with half-yearly rests) at the same rate, or for the net profits made by such employment.

Illustrations

(a) A trustee improperly leaves trust-property outstanding, and it is consequently lost: he is liable to make good the property lost, but he is not liable to pay interest thereon.

(b) A bequeaths a house to B in trust to sell it and pay the proceeds to C. B neglects to sell the house for a great length of time, whereby the house is deteriorated and its market price falls. B is answerable to C for the loss.

(c) A trustee is guilty of unreasonable delay in investing trust-money in accordance with Section 20, or in paying it to the beneficiary. The trustee is liable to pay interest thereon for the period of the delay.

(d) The duty of the trustee is to invest trust-money in any of the securities mentioned in Section 20, clause (a), (b), (c) or (d). Instead of so doing, he retains the money in his hands. He is liable, at the option of the beneficiary, to be charged either with the amount of the principal money and interest, or with the amount of such securities as lie might have purchased with the trust-money when the investment should have been made, and the intermediate dividends and interest thereon.

(e) The instrument of trust directs the trustee to invest trust-money either in any of such securities or on mortgage of immovable property. The trustee does neither. He is liable for the principal money and interest.

(f) The instrument of trust directs the trustee to invest trust-money in any of such.

Section 24. No set-off allowed to trustee.

A trustee who is liable for a loss occasioned by a breach of trust in respect of one portion of the trust property cannot set off against his liability again which has accrued to another portion of the trust-property through another and distinct breach of trust.

Section 25. Non-liability for predecessor’s default.

Where a trustee succeeds another, he is not, as such, liable for the acts or defaults of his predecessor.

Section 26. Non-liability for co-trustee’s default.

Subject to the provisions of Section 13, and 15, one trustee is not, as such, liable for a breach of trust committed by his co-trustee;

Provided that, in the absence of an express declaration to the contrary in the instrument of trust, a trustee is so liable -

(a) Where he has delivered trust-property to his co-trustee without seeing to its proper application;

(b) Where he allows his co-trustee to receive trust-property and fails to make due inquiry as to the co-trustee’s dealings therewith, or allows him to retain it longer then the circumstances of the case reasonably require;

(c) Where he becomes aware of a breach of trust committed or intended by his co-trustee, and either actively conceals it or does not within a reasonable time take proper steps to protect the beneficiary’s interest.

Joining in receipt for conformity – A co-trustee who joins in signing a receipt for trust-property and proves that he has not received the same is not answerable, by reason of such signature only, for loss or misapplication of the property by his co-trustee.

Illustration

A bequeaths certain property to B and C, and directs them to sell it and invest the proceeds for the benefit of D.B. and C accordingly sell the property, and the purchase money is received by B and retained in his hands. C pays no attention to the matter for two years and then calls on B to make the investment. B is unable to do so, becomes insolvent, and the purchase-money is lost. C may be compelled to make good the amount.

Section 27. Several liabilities of co-trustees.

Where Co-trustees jointly commit a breach of trust, or where one of them by his neglect enables the other to commit a breach of trust, each is liable to the beneficiary for the whole of the loss -occasioned by such breach.

Contribution as between co trustees. -But as between the trustees themselves, if one be less guilty than another and has had to refund the loss, the former may compel the latter, or his legal representative to the extent of the assets he has received, to make good such loss; and if all be equally guilty, any one or more of the trustees who has had to refund the loss may compel the others to contribute.

Nothing in this section shall be deemed to authorize a trustee who has been guilty of fraud to institute a suit to compel contribution.

Section 28. Non-liability of trustee paying without notice of transfer by beneficiary.

When any beneficiary’s interest becomes vested in another person, and the trustee, not having notice of the vesting, pays or delivers trust-property to the person who would have been entitled thereto in the absence of such vesting, the trustee is not liable for the property so paid or delivered.

Section 29. Liability of trustee where beneficiary’s interest is forfeited to the Government.

When the beneficiary’s interest is forfeited or awarded by legal adjudication to the Government, the trustee is bound to hold the trust-property to the extent of such interest for the benefit of such person in such manner as the State Government may direct in this behalf.

Section 30. Indemnity of trustees.

Subject to the provisions of the instrument of trust and of Sections 23 and 26, trustees shall be respectively chargeable only for such moneys, stocks, funds and securities as they respectively actually receive, and shall not be answerable the one for the other of them, nor for any banker or other person in whose hands any trust-property may be placed, nor for the insufficiency or deficiency of ally stocks, funds or securities, nor otherwise for involuntary losses.

Chapter IV – OF THE RIGHTS AND POWERS OF TRUSTEES

Section 31.Right to title deed.

Right to title deedA trustee is entitled to have in his possession the instrument of trust and all the documents of title (if any) relating solely to the trust-property.

Section 32. Right to reimbursement of expenses.

Every trustee may reimburse himself, or pay or discharge out of the trust-property, all expenses properly incurred in or about the execution of the trust, or the realization, preservation or benefit of the trust-property, or the protection or support of the beneficiary.

If he pays such expenses out of his own pocket he has a first charge upon the trust-property for such expenses and interest thereon; but such charge (unless the expenses have been incurred with the sanction of a principal Civil Court of original Jurisdiction) shall be enforced only by prohibiting any disposition of the trust-property without previous payment of such expenses and interest.

If the trust-property fail, the trustee is entitled to recover from the beneficiary personally on whose behalf he acted, and at whose request, expressed or implied, he made the payment, the amount of such expenses.

Right to be recouped for erroneous over-payment. -Where a trustee has by mistake made an over-payment to the beneficiary, he may reimburse the trust-property out of the beneficiary’s interest. If such interest fails, the trustee is entitled to recover from the beneficiary personally the amount of such over-payment.

Section 33. Right to indemnity from gainer by breach of trust.

A person other than a trustee who has gained an advantage from a breach of trust must indemnify the trustee to the extent of the amount actually received by such person under the breach; and where he is a beneficiary the trustee has a charge on his interest for such amount.

Nothing in this section shall be deemed to entitle a trustee to be indemnified who has in committing the breach of trust, been guilty of fraud.

Section 34. Right to apply to Court for opinion in management of trust-property.

Any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust-property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal.

A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit.

The trustee stating in good faith the facts in such petition and acting upon the opinion, advice or direction given by the Court shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee in the subject matter of the application.

The costs of every application under this section shall be in the discretion of the Court to which it is made.

Section 35. Right to settlement of accounts.

When the duties of a trustee, as such, are completed, he is entitled to have the accounts of his administration of the trust-property examined and settled; and, where nothing is due to the beneficiary under the trust, to an acknowledgement in writing to that effect.

Section 36. General authority of trustee.

In addition to the powers expressly conferred by this Act and by the instrument of trust, and subject to the restrictions, if any, contained in such instrument, an to the provisions of Section 17, a trustee may do all acts which are reasonable and proper for the realization, protection or benefit of the trust-property, and for the protection or support of a beneficiary who is not competent to contract.

Except with the permission of a principal Civil Court of original jurisdiction, no trustee shall lease trust-property for a term exceeding twenty-one years from the date of executing the lease, nor without reserving the best yearly rent that can be reasonably obtained.

Section 37. Power to sell in lots, an either by public auction or private contract.

Where the trustee is empowered to sell any trust-property, he may sell the same subject to prior charges or not, and either together or in losts, by public auction or private contract, and either at one time or at several times, unless the instrument of trust otherwise directs.

Section 38. Power to sell under special conditions.

Power to buy in and resell. -The trustee making any such sale may insert such reasonable stipulations either as to title or evidence of title, or otherwise, in any conditions of sale or contract for sale, as he thinks fit; and may also buy-in the property or any part thereof at any sale by auction, and rescind or vary any contract for sale, and resell the property so bought in, or as to which the contract is so rescinded, without being responsible to the beneficiary for any loss occasioned thereby. –

Time allowed for selling trust-property. -Where a trustee is directed to sell trust property or to invest trust-money in the purchase of property, he may exercise a reasonable discretion as to the time of effecting the sale or purchase

Illustration

(a) A bequeaths property to B, directing him to sell it with all convenient speed and pay the proceeds to C. This does not tender an immediate sale imperative.

(b) A bequeaths property to B, directing him to sell it at such time and in such manner as he shall think fit and invest the proceeds for the benefit of C. This does not authorize B, as between him and C, to postpone the sale to an indefinite period.

Section 39. Power to convey.

For the purpose of completing any such sale, the trustee shall have power to convey or otherwise dispose of the property sold in such manner as may be necessary.

Section 40. Power to vary investments.

A trustee may, at his discretion, call in any trust property invested in any security and invest the same on any of the securities mentioned or referred to in Section 20, and from time to time vary any such investments for others of the same nature: Provided that, where there is a person competent to contract and entitled at the time to receive the income of the trust-property for his life, or for any greater estate, no such change of investment shall be made without his consent in writing.

Section 41. Power to apply property of minors, etc., for their maintenance, etc.

Where any property is held by a trustee in trust for a minor, such trustee may, at his discretion, hay to the guardians (if any) of such minor, or otherwise apply for or towards his maintenance or education or advancement in life, or the reasonable expenses of his religious worship, marriage or funeral, the whole or any part of the income to which he may be entitled in respect of such property; and such trustee shall accumulate all the residue of such income by way of compound interest by investing the same and the resulting income thereof from time to time in any of the securities mentioned or referred to in Section 20, for the benefit of the person who shall ultimately become entitled to the property from which such accumulations have arisen:

Provided that such trustee may, at any time, if he thinks fit, apply the whole or any part of such accumulations as if the same were part of the income arising in the then current year. Where the income of the trust-property is insufficient for the minor’s maintenance or education or advancement in life, or the reasonable expenses of his religious worship, marriage or funeral, the trustee may, with the permission of a principal Civil Court of original jurisdiction, but not otherwise, apply the whole or any part of such property for or towards such maintenance, education, advancement or expenses.

Nothing in this section shall be deemed to affect the provisions of any local law for the time being in force relating to the persons and property minors.

Section 42. Power to give receipts.

Any trustee or trustees may give a receipt in writing for any money, securities or other movable property payable, transferable or deliverable to them or him by reason, or in exercise, of any trust or power; and, in the absence of fraud, such receipt shall discharge the person paying, transferring or delivering, the same therefrom, and from seeing to the application thereof, or being accountable for any loss or misapplication thereof.

Section 43. Power to compound, etc.

Two or more trustees acting together may, if and as they think fit, -

(a) Accept any composition or any security for any debt or for any property claimed;

(b) Allow any time for payment of any debt;

(c) Compromise, compound, abandon, submit to arbitration or otherwise settle any debt, account, claim or thing whatever relating to the trust; and

(d) For any of those purposes, enter into, give, execute and do such agreements, instruments of composition or arrangement, releases and other things as to them seem expedient, without being responsible for any loss occasioned by any act or thing so done by them in good faith.

The powers conferred by this section on two or more trustees acting together may be exercised by a sole acting trustee when by the instrument of trust, if any, a sole trustee is authorised to execute the trusts and powers thereof. This section applies only if and as far as a contrary intention is not expressed in the instrument of trust, if any, and shall have effect subject to the terms of that instrument and to the provisions therein contained.

This section applies only to trusts created after this Act comes into force.

Section 44. Power to several trustees of whom one disclaims or dies.

When an authority to deal with the trust-property is given to several trustees and one of them disclaims or dies, the authority may be exercised by the continuing trustees, unless from the terms of the instrument of trust it is apparent that the authority is to be exercised by a number in excess of the number of the remaining trustees.

Section 45. Suspension of trustee’s powers by decree.

Where a decree has been made in a suit for the execution of a trust. the trustee must not exercise any of his powers except in conformity with such decree, or with the sanction of the Court by which the decree has been made, or, where an appeal against the decree is pending, of the Appellate Court.

Chapter V – OF THE DISABILITIES OF TRUSTEES

Section 46. Trustees cannot renounce after acceptance.

A trustee who has accepted the trust cannot afterwards renounce it except (a) with the permission of a principal Civil Court of original jurisdiction, or (b) if the beneficiary is competent to contract, with his consent, or (c) by virtue of a special power in the instrument of trust.

Section 47. Trustee cannot delegate.

A trustee cannot delegate his office or any of his dudes either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.

Explanation

The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section.

Illustrations

(a) A bequeaths certain property to B and C on certain trusts to be executed by them or the survior of them or the assigns of such survivor, B dies, C may bequeath the trust-property to D and E upon the trusts of A’s will.

(b) A is a trustee of certain property with power to sell the same A may employ an auctioneer to effect the sale.

(c) A bequeaths to B fifty houses let at monthly rents in trust to collect the rents and pay them to C. B may employ a proper person to collect these rents.

Section 48. Co-trustees cannot act singly.

When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides.

Section 49. Control of discretionary power.

Where a discretionary power conferred on a trustee is not exercised reasonably and in good faith, such power may be controlled by a principal Civil Court of original jurisdiction.

Section 50. Trustee may not charge for services.

In the absence of express directions to the contrary contained in the instrument of trust or of a contract to the contrary entered into with the beneficiary or the Court at the time of accepting the trust, a trustee has no right to remuneration for his trouble, skill and loss of time in executing the trust. Nothing in this section applies to any Official Trustee, Administrator General, Public Curator, or person holding a certificate of administration.

Section 51. Trustee may not use trust-property for his own profit.

A trustee may not use or deal with the trust-property for his own profit or for any other purpose unconnected with the trust.

Section 52. Trustee for sale or his agent may not buy.

No trust whose duty it is to sell trust-property, and no agent employed by such trustee for the purpose of the sale, may, directly or indirectly, buy the same or any interest therein, on his own account or as agent for a third person.

Section 53. Trustee may not buy beneficiary’s interest without permission.

No trustee, and no person who has recently ceased to be a trustee, may, without the permission of a principal Civil Court of original jurisdiction, buy or become mortgage or lessee of the trust-property or any party thereof; any such permission shall not be given unless the proposed purchase, mortgage or lease is manifestly for the advantage of the beneficiary.

Trustee for purchase – And no trustee whose duty it is to buy or to obtain a mortgage of lease of particular property for the beneficiary may buy it, or any part thereof, or obtain a mortgage or lease of it, or any part thereof, for himself.

Section 54. Co-trustees may not lend to one of themselves.

A trustee or co-trustee whose duty it is to invest trust-money on mortgage or personal security must not invest it on a mortgage by, or on the personal security of, himself or one of his co-trustees.

Chapter VI – OF THE RIGHTS AND LIABILITIES OF THE BENEFICIARY

Section 55. Rights to rents and profits.

The beneficiary has subject to the provisions of the instrument of trust, a right to the ‘rents and profits of the trust-property.

Section 56. Right to specific execution.

The beneficiary is entitled to have the intention of the author of the trust specifically executed to the extent of the beneficiary’s interest.

Right to transfer of possession. -Where there is, only one beneficiary and he is competent to contract, or where there are several beneficiaries and they are competent to contract and all of one mind, he or they may require the trustee to transfer the trust-property to him or them, or to such person as he or they may direct.

When property has been transferred or bequeathed for the bequeathed for the benefit of a married woman, so that she shall not have power to deprive herself of her beneficial interest, nothing in the second clause of this section applies to such property during her marriage.

Illustrations

(a) Certain Government securities are given to trustees upon trust to accumulate the interest until A attains the age of 24, and then to transfer the gross amount to him. A on attaining majority may, as the person exclusively interested in the trust-property, require the trustees to transfer it immediately to him.

(b) A bequeaths Rs. 10,000 to trustees upon trust to purchase an annuity for B, who has attained his majority and is otherwise competent to contract. B may claim the Rs. 10,000.

(c) A transfers certain property to B and directs him to sell or invest it for the benefit of C, who is competent to contract. C may elect to take the property in its original character.

Section 57. Right to inspect and take copies of instrument of trust accounts, etc.

The beneficiary has a right, as against the trustee and all persons claiming under him with notice of the trust, to inspect and take copies of the instrument of trust, the documents of title relating solely to the trust-property, the accounts of the trust-property and the vouchers (if any) by which they are supported, and the cases submitted and opinions taken by the trustee for his guidance in the discharge of his duty.

Section 58. Right to transfer beneficial interest.

The beneficiary, if competent to contract, may transfer his interest, but subject to the law for the time being in force as to the circumstances and extent in an to which he may dispose of such interest;

Provided that when property is transferred or bequeathed for the benefit of a married woman, so that she shall not have power to deprive herself of her beneficial interest, nothing in this section shall authorize her to transfer such interest during her marriage.

Section 59. Right to sue for execution of trust.

Where no trustees are appointed or all the trustees dies disclaim, or are discharged, or where for any other reason the execution of a trust by the trustee is or becomes impracticable, the beneficiary may institute a suit for the execution of the trust, and the trust shall, so far as may be possible, be executed by the Court until the appointment of a trustee or new trustee.

Section 60. Right to proper trustees.

The beneficiary has a right (subject to the provisions of the instrument of trust) that the trust-property shall be properly protected, held, and administered by proper persons and by a proper number of such persons.

Explanation I

The following are not proper persons within the meaning of this section:

A person domiciled abroad; an alien enemy; a person having an interest inconsistent with that of the beneficiary; a person in insolvent circumstances; and, unless the personal law of the beneficiary allows otherwise, a married woman and a minor.

Explanation II

When the administration of the trust involves the receipt and custody of money, the number of trustees should be two at least.

Illustrations

(a) A, one of several beneficiaries, proves that B, the trustee, has improperly disposed of part of the trust-property, or that the property is in danger from B’s being in insolvent circumstances, or that he is incapacitated from acting as trustee. A may obtain a receiver of the trust-property.

(b) A bequeaths certain jewels to B in trust for C. B die- during A’s life-time; then A dies. C is entitled to have the property conveyed to a trustee for him.

(c) A conveys certain property to four trustees in trust for B. Three of the trustees die, B may institute a suit to have three new trustees appointed in the place of the deceased trustees.

(d) A conveys certain property to three trustees in trust for B. All the trustees disclaim B may institute a suit to have three trustees appointed in place of the trustees so disclaiming.

(e) A, a trustee for B, refuses to act, or goes to reside permanently out of India or is declared an insolvent, or compounds with his creditors, or suffers a co-trustee to commit a breach of trust. B may institute a suit to have A removed and a new trustee appointed in his room.

Section 61. Right to compel to any act of duty.

The beneficiary has a right that his trustee shall be compelled to perform any particular act of his duty as such, and restrained from committing any contemplated or probable breach of trust.

Illustration

(a) A contracts with B to pay him monthly Rs. 100 for the benefit of C. B writes and signs a letter declaring that he will hold in trust for C the money -so to be paid. A fails to pay money in accordance with his contract. C may compel B on a proper indemnity to allow C to sue on the contract in B’s name.

(b) A is trustee of certain land, with a power to sell the same and pay the proceeds to B and C equally. A is about to make an improvident sale of the land. B may sue (in behalf of himself and C for an injunction to restrain A from making the sale.

Section 62. Wrongful purchase by trustee.

Where a trustee has wrongfully bought trust-property, the beneficiary has a right to have the property declared subject to the trust or retransferred by the trustee, if it remains in his hands unsold, or , if it has been bought from him by any person with notice of the trust, by such person. But in such case the beneficiary must repay the purchase-money paid by the trustee, with interest, and such other expenses (if any) as he has properly incurred in the preservation of the property; and the trustee or purchaser must (a) account for the net profits of the property, (b) be charged with an occupation-rent, if he has been in actual possession of the property, and (c) allow the beneficiary to deduct a proportionate part of the purchase-money if the property has been deteriorated by the acts or omission of the trustee or purchaser.

Noting in this section -

(a) Impairs the rights of lessees and others who, before the institution of a suit to have the property declared subject to the trust or retransferred, have contracted in good faith with the trustee or purchaser; or

(b) Entitles the beneficiary to have the property declared subject to the trust or retransferred where he, being competent to contract, has himself, without coercion or undue influence having been brought to bear on him, ratified the sale to the trustee with full knowledge of the facts of the case and of his rights as against the trustee.

Section 63. Following trust-property-into the hands of third persons; into that into which it has been converted.

Where trust-property comes into the hands of a third person inconsistently with the trust, the beneficiary may require him to admit formally, or may institute a suit for a declaration, that the property is comprised in the trust.

Where the trustee has disposed of trust-property and the money or other property which he has received therefor can be traced in his hands, or the hands of his legal representative or legatee, the beneficiary has, in respect thereof, rights as nearly as may be the same as his rights in respect of the original trust-property.

Illustrations

(a) A, a trustee for B of Rs. 10,000, wrongfully invests Rs. 10, 000 in the purchase of certain land. B is entitles to the land.

(b) A, a trustee, wrongfully purchases land in his own name, partly with his own money, partly with money subject to a trust for B. B is entitled to a charge on tile land for the amount of the trust money so misemployed.

Section 64. Saving of rights of certain transferees.

Nothing in Section 63 entities the beneficiary to any right in respect of property in the hands of-

(a) A transferee in good faith for consideration without having notice of the trust, either when the purchase-money was paid, or when the conveyance was executed; or

(b) A transferee for consideration from such a transferee.

A judgment-creditor of the trustee attaching and purchasing trust-property as not a transferee for consideration within the meaning of this section.

Nothing in Section 63 applies to money currency notes and negotiable instruments in the hands of a bona fide holder to whom they have passed in circulation, or shall be deemed to affect the Indian Contract Act, 1872, Section 108, or the liability of a person to whom a debt or charge is transferred.

Section 65. Acquisition by trustee of trust-property wrongfully converted.

Where a trustee wrongfully sells or otherwise transfers trust-property and afterwards himself becomes the owner of the property, the property again becomes subject to the trust, notwithstanding any want of notice on the part of intervening transferees it) good faith for consideration.

Section 66. Right in case of blended property.

Where the trustee wrongfully mingles tile trust-property with his own, the beneficiary is entitled to a charge on the whole fund for the amount due to him.

Section 67. Wrongful employment by partner-trustee of trust-property for partnership purposes.

If a partner, being a trustee, wrongfully employs trust-property in the business or on the account of the partnership, no other partner is liable therefor in his personal capacity to the beneficiaries, unless he had notice of the breach of trust.

The partners having such notice are jointly and severally liable for the breach of trust.

Illustrations

(a) A and B are partners. A dies, having bequeathed all his property to B in trust for Z, and appointed B his sole executor. B, instead of winding up the affairs of tile partnership, retains all the assets in the business. Z may compel him, as partner, to account for so much of tile profits as are derived from A’s share of the capital. B is also answerable to Z for the improper employments of A’s assents.

(b) A, a trader, bequeaths his property to B in trust for appoints B his sole executor and dies. B enters into partnership with X and Y in die same trade and employs A’s assents in the partnership business. B given an indemnity to X and Y against the claim,,; of C. Here X and I’ are jointly liable with B to C as having knowingly become parties to the breach of trust committed by B.

Section 68. Liability of beneficiary joining in breach of trust.

Where one of several beneficiaries. -

(a) Joins in committing breach of trust, or

(b) Knowingly obtains any advantage therefrom, without the consent of the other beneficiaries, or

(c) Becomes aware of a breach of trust committed or intended to be committed, and either actually conceals it, or does not within a reasonable time take proper steps to protect the interests of the other beneficiaries, or

(d) Has deceived the trustee and thereby induced him to commit a breach of trust, the other beneficiaries are entitled to have all his beneficial interest impounded as against him and all two claim under him (otherwise than as transferees for consideration without notice of the breach) until the loss caused by the breach has been compensated.

When property has been transferred or bequeathed for the benefit of a married woman, so that she shall not have power to deprive herself of her beneficial interest, nothing in this section applies to such property during her marriage.

Section 69. Rights and liabilities of beneficiary’s transferee.

Every person to whom a beneficiary transfers his interest has the rights, and is subject to the liabilities, of the beneficiary in respect of such interest at the date of the transfer.

Chapter VII – OF VACATING THE OFFICE OF TRUSTEE

Section 70. Office how vacated.

The office of a trustee is vacated by his death or by his discharge from his office.

Section 71. Discharge of trustee.

The trustee may be discharged from his office only as follows:

(a) By the extinction of the trust;

(b) By the completion of his duties under the trust;

(c) By such means as may be prescribed by the instrument of trust;

(d) By appointment under this Act of a new trustee in his place;

(e) By consent of himself and the beneficiary, or, where there are more beneficiaries than one, all the beneficiaries being competent to contract; or

(f) By the Court to which a petition for his discharge is presented under this Act.

Section 72. Petition to be discharged from trust.

Notwithstanding the provisions of Section 11, every trustee may apply by petition to a principal Civil Court of original jurisdiction to be discharged from his office; and if the Court finds that there is sufficient reason for such discharge, it may discharge him accordingly, and direct his costs to be paid out of the trust-property. But where there is no such reason, the Court shall not discharge him, unless a proper person can be found to take his place.

Section 73. Appointment of new trustees on death, etc.

Whenever any person appointed a trustee disclaims, or any trustee, either original or substituted, dies, or is for a continuous period of six months absent from India, or leaves India for the purpose of residing abroad, or is declared an insolvent, or desires to be discharged from the trust, or refuses or becomes, in the opinion of a principal Civil Court of original jurisdiction, unfit or personally incapable to act in the trust, or accepts an inconsistent trust, a new trustee may be appointed in his place by:

(a) The person nominated for that purpose by the instrument or trust (if any), or

(b) If there be no such person, or no such person able wid willing to act, the author of the trust if he be alive and competent to contract, or the surviving or continuing trustees or trustee for the time being, or legd representative of the last surviving and continuing trustee, or (with the consent of the Court) the retiring trustees, if they all retire simultaneously, or (with the like consent) the last retiring trustee.

Every such appointment shall be by writing under the hand of the person making it.

On an appointment of a new trustee the number of trustees may be increased. The Official Trustee may, with his consent and by die order of the Court, be appointed under this section, in any case, in which only one trustee is to be appointed and such trustee is to be the sole trustee.

The provisions of this section relative to a trustee who is dead include the case of person nominated trustee in a will but dying before the testator, and those relative to continuing trustee include a refusing or retiring trustee if willing to act in the execution of the power.

Section 74. Appointment by Court.

Whenever any such vacancy or disqualification occurs and it is found impracticable to appoint a new trustee under Section 73, the beneficiary may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for the appointment of a trustee or a new trustee, and the Court may appoint a trustee or a new trustee accordingly.

Rule for selecting new trustees – In appointing new trustee, the Court shall have regard (a) to the wishes of the author of the trust as expressed in or to be inferred from the instrument of trust; (b) to the wishes of the person, if any, empowered to appoint new trustees; (c) to the question whether the appointment will promote or impede the execution of the trust; and (d) where there are more beneficiaries than one, to the interests of all such beneficiaries.

Section 75. Vesting of trust-property in new trustees.

Whenever any new trustee is appointed under Section 73 or Section 74, all the trust-property for the time being vested in the surviving or continuing trustees or trustee, or in the legal representative of any trustee, shall become vested in such new trustee, either solely or jointly with the surviving or continuing trustees or trustee as the case may require.

Power of new trustees – Every new trustee so appointed, and every trustee appointed by a Court either before or after the passing of this Act, shall have the same powers, authorities and discretions, and shall in all respects act, as if he had been originally nominated a trustee by the author of the trust.

Section 76. Survival of trust.

In the death or discharge of one of’ several co-trustees, the trust survives and the trust-property passes to the others, unless the instrument of trust expressly declares otherwise.

Chapter VIII – OF THE EXTINCTION OF TRUSTS

Section 77. Trust how extinguished.

A trust is extinguished-

(a) When its purpose is completely fulfilled; or

(b) When its purpose becomes unlawful; or

(c) When the fulfilment of its purpose becomes impossible by destruction of the trust-property or otherwise; or

(d) When the trust, being revocable, is expressly revoked.

Section 78. Revocation of trust.

A trust created by will any be revoked at the pleasure of the testator.

A trust otherwise created can be revoked only -

(a) Where all the beneficiaries are competent to contract by their consents

(b) Where the trust has been declared by non-testamentary instrument or by word of mouth- in exercise of a power of revocation expressly reserved to the author of the trust; or

(c) Where the trust is for the payment of the debts of the author of the trust, and has not been communicated to the creditors at the pleasure of the author of the trust.

Illustration

A conveys property to B in trust to sell the same and pay out of the proceeds the claims of A’s creditors. A reserves no power of revocation. If no communication has been made to the creditors, A may revoke the trust. But if the creditors are parties to the arrangement, the trust cannot be revoked without their consent.

Section 79. Revocation not to defeat what trustees have duly done.

The author of the trust so as to defeat or prejudice what the trustees may have duly done in execution of the trust can revoke no trust.

Chapter IX – OF CERTAIN OBLIGATIONS IN THE NATURE OF TRUSTS

Section 80. Where obligation in nature of trust is created.

An obligation in the nature of a trust is created in the following cases.

Section 81. Where it does not appear that transferor intended to dispose of beneficial interest.

[Repealed by the Benami Transactions (Prohibition) Act, 1988 (45 of 1988)].

Section 82. Transfer to one for consideration paid by another.

[Repealed by the Benami Transactions (Prohibition) Act, 1988 (45 of 1988)].

Section 83. Trust incapable of execution or executed without exhausting trust-property.

Where a trust is incapable of being executed, or where the trust is completely executed without exhausting the trust-property, the trustee, in the absence of a direction to the contrary, must hold the trust property, or so much thereof as is unexhausted, for the benefit of the author of the trust or his legal representative.

Illustrations

(a) A conveys certain land to B. -

Upon trust”, and no trust declared; or

Upon trust to be thereafter declared”, and no such declaration is ever made; or upon trusts that are too vague to be executed; or

Upon trust that become incapable of taking effect; or

“In trust for C’, and C renounces his interest under the trust.

In each of these cases B holds the land for the benefit of A.

(b) A transfers Rs. 10,000 at the four per cent to B, in trusts to pay the interest annually accruing due to C for her life. A dies. Then C dies. B holds the fund for the benefit of A’s legal representative.

(c) A conveys land to B upon trust to sell it and apply one moiety of the proceeds for certain charitable purposes, and the other for the maintenance of the worship of an idol. B sells the land, but the charitable purposes wholly fail, and the maintenance of the worship does not exhaust the second moiety of the proceeds. B holds the first moiety and the part unapplied for the second moiety for the benefit of A or his legal representative.

(d) A bequest Rs. 10,000 to B, to be laid out, in buying land to be conveyed for purposes which either wholly or partially fail to take effect. B holds for the benefit of A’s legal representative the undisposed of interest in the money or land if purchased.

Section 84. Transfer for illegal purpose.

Where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor.

Section 85. Bequest for illegal purpose.

Where a testator bequeaths certain property upon trust and the purpose of the trust appears on the face of the will to b unlawful, or during the testator’s lifetime the legatee agrees with him to apply the property for an unlawful purpose, the legatee must hold the property for the benefit of the testator’s legal representative.

Bequest of which revocation is prevented by coercion – Where property is bequeathed and the revocation of the bequest is prevented by coercion, the legatee must hold the property for the benefit of the testator’s legal representative.

Section 86. Transfer pursuant to rescindable contract.

Where property is transferred in pursuance of a contract which is liable to rescission or induced by fraud or mistake, the transferee must, on receiving notice to that effect, hold the property for the benefit of the transferor, subject to repayment by the latter of the consideration actually paid.

Section 87. Debtor becoming creditor’s representative.

Where a debtor becomes the executor or other legal representative of his creditor, he must hold the debt for the benefit of the persons interested therein.

Section 88. Advantage gained by fiduciary.

Where a trustee, executor, partner, agent, director of a company, legal advisor, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.

Illustrations

(a) A, an executor, buys at an undervalue from B, a legatee, his claim under the will. B is ignorant of the value of the bequest. A must hold for the benefit of B the difference between the price and value.

(b) A, a trustee, uses the trust property for the purpose of his own business. A holds for tile benefit of his beneficiary the profits arising from such user.

(c) A, a trustee, retires from his trust in consideration of his successor paying a sum of money. A holds such money for the benefit of his beneficiary.

(d) A, a partner, buys land in his own name with funds belonging to the partnership. A holds such land for the benefit of the partnership.

(e) A, a partner, employed on behalf of himself and his co-partners is negotiating tile terms of a lease, clandestinely stipulates with the lessor for payment to himself of a lakh of rupees. A holds the lakh for the benefit of the partnership.

(f) A and B are partners. A dies. B, instead of winding up the affairs of the partnership, retains all the assets in the business. B must account to A’s legal representative for the profits arising from A’s share of the capital.

(g) A, an agent employed to obtain a lease for B, obtains the lease for himself. A holds the lease for the benefit of B.

(h) A, a guardian, buys up for himself encumbrances on his ward B’s estate at an undervalue. A holds for the benefit of B the encumbrances so bought, and can only charge him with what lie -has actually paid.

Section 89. Advantage gained by exercise of undue influence.

Where, by the exercise of undue influence, any advantage is gained in derogation of the interests of another, the person gaining such advantage without consideration, or with notice that such influence has been exercised, must hold the advantage for the benefit of the person, whose interests have been so prejudiced.

Section 90. Advantage gained by qualified owner.

Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains all advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to all indemnity by the same persons against liabilities properly contracted, in gaining such advantage.

Illustrations

(a) A, the tenant for life of leasehold property, renews the lease in his own name and for his own benefit. A holds the renewed lease for the benefit of all those interested in the old lease.

(b) A village belongs to a Hindu family. A, one of its members, pays Nazrana to Government and thereby procures his name to be entered as the inamdar of the village. A holds the village for the benefit of himself and the other members.

(c) A mortgages land to B, who enters into possession. B allows the Government revenue to fall into arrear with a view to the land being put up for sale and his becoming himself the purchaser of it. The land is accordingly sold to B. Subject to the repayment of the amount clue on the mortgage and of his expenses properly incurred as mortgagee, B holds the land for the benefit of A.

Section 91. Property acquired with notice of existing contract.

Where a person acquires property with notice that another person has entered into all existing contract affecting that property, of which specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract.

Section 92. Purchase by person contracting to buy property to be held on trust.

Where a person contracts to buy property to be held on trust for certain beneficiaries and buys the property accordingly, he must hold the property for their benefit to the extent necessary to give effect to the contract.

Section 93. Advantage secretly gained by one of several compounding creditors.

Where creditors compound the debts due to them, and one of such creditors, by a secret arrangement with the debtor, gains an undue advantage over his co-creditors, he must hold for the benefit of such creditors the advantage so gained.

Section 94. Constructive trusts in cases not expressly provided for.

[Repealed by the Benami Transactions (Prohibition) Act, 1988 (45 of 1988)].

Section 95. Obligator’s duties, liabilities and disabilities.

The person holding property in accordance with any of the preceding sections of this Chapter must, so far as may be, perform the same duties, and is subject so far as may be, to the same liabilities and disabilities, as if he were a trustee of the property for the person for whose benefit he holds it:

Provided that (a) where he rightfully cultivates the property or employs it in trade or business, he is entitled to reasonable remuneration for his trouble, skill and loss of time in such cultivation or employment; and (b) where he holds the property by virtue of a contract with a person for whose benefit he holds it or with any one through whom such person claims, he may, without the permission of the Court, buy or become lessee or mortgage of the property or any part thereof.

Section 96. Saving of rights of bona fide purchasers.

Nothing contained in this Chapter shall impair the rights of transferees in good faith for consideration, or create all obligations in evasion of any law for the time being in force.

STATUTE

THE SCHEDULE

(See Section 2)

STATUTE

——————-

1. The Figure “39” and by implication the word “and”’ were omtted by the Amendment Act, 1891 (12 of 1891 ), S. 2 and Sch. I.

Criminal Law Amendment Act

November 30, 2014

Introduction

The Criminal Law (Amendment) Act, 2013 is an Indian legislation passed by the Lok Sabha on 19 March 2013, and by the Rajya Sabha on 21 March 2013, which provides for amendment of Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual offences. The Bill received Presidential assent on 2 April 2013 and deemed to come into force from 3 February 2013. It was originally an Ordinance promulgated by the President of India, Pranab Mukherjee, on 3 February 2013, in light of the protests in the 2012 Delhi gang rape case.

Backdrop

Against the backdrop of nationwide outrage over the tragic Delhi gang-rape case of Nirbhaya, incident of 16 December 2012, propelled the Government of India to drive the issue of violence against women to a centre stage. Hence, a three member judicial committee was set up headed by the former Chief Justice of India J.S. Verma, the key objective of the committee was to review for possible amendments to the criminal law and suggest measures for faster trials and harsher penalties. The recommendations by the committee were based on more 80,000 suggestions by eminent jurists, social activists, legal professionals, NGO’s, through varied methods.

The Criminal Law Amendment Act 2013 is also popularly known as the Anti-rape Act. It amends the following:

• The Indian Penal Code, 1806
• Code of Criminal Procedure, 1973
• The Indian Evidence Act, 1872
• Protection of Children from Sexual Offences Act, 2012

Motor Vehicles Act

November 30, 2014

Chapter I – Preliminary

Section 1. Short title, extent and commencement.

(1) This Act may be called the Motor Vehicles Act, 1988.

(2) It extends to the whole of India.

(3) It shall come into force on such date¹ as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different States and any reference in this Act to the commencement of this Act shall, in relation to a State, be construed as a reference to the coming into force of this Act in that State.

1. Came into force on 1-7-1989. Vide S.O. 368 (E), dated 22nd May, 1989, published in the Gazette of India, Extra., Pt. II, Sec. 3 (ii), dated 22nd May, 1989.

Section 2. Definitions.

In this Act, unless the context otherwise requires,-

(1) “area”, in relation to any provision of this Act, means such area as the State Government may, having regard to the requirements of that provision, specify by notification in the Official Gazette;

(2) “articulated vehicle” means a motor vehicle to which a semi-trailer is attached;

(3) “axle weight” means in relation to an axle of a vehicle the total weight transmitted by the several wheels attached to that axle to the surface on which the vehicle rests;

(4) “certificate of registration” means the certificate issued by a competent authority to the effect that a motor vehicle has been duly registered in accordance with the provisions of Chapter IV;

(5) “conductor” in relation to a stage carriage, means a person engaged in collecting fares from passengers, regulating their entrance into, or exit from, the stage carriage and performing such other functions as may be prescribed;

(6) “conductor’s licence” means the licence issued by a competent authority under Chapter III authorising the person specified therein to act as a conductor;

(7) “contract carriage” means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum-

(a) on a time basis, whether or not with reference to any route or distance; or

(b) from one point to another,and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes-

(i) a maxicab; and

(ii) a motorcar notwithstanding the separate fares are charged for its passengers;

(8) “dealer” includes a person who is engaged-

¹[***]

(b) in building bodies for attachment to chassis; or

(c) in the repair of motor vehicles; or

(d) in the business of hypothecation, leasing or hire-purchase of motor vehicle;

(9) “driver” includes, in relation to a motor vehicle which is drawn by another motor vehicle, the person who acts as a steersman of the drawn vehicle;

(10) “driving licence” means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description;

(11) “educational institution bus” means an omnibus, which is owned by a college, school or other educational institution and used solely for the purpose of transporting students or staff of the educational institution in connection with any of its activities;

(12) “fares” includes sums payable for a season ticket or in respect of the hire of a contract carriage;

(13) “goods” includes livestock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle;

(14) “goods carriage” means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;

(15) “gross vehicle weight” means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle;

(16) “heavy goods vehicle” means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;

(17) “heavy passenger motor vehicle” means any public service vehicle or private service vehicle or educational institution bus or omnibus the gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12,000 kilograms;

(18) “invalid carriage” means a motor vehicle specially designed and constructed, and not merely adapted, for the use of a person suffering from some physical defect or disability, and used solely by or for such a person;

(19) “learner’s licence” means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive as a learner, a motor vehicle or a motor vehicle of any specified class or description;

(20) “licensing authority” means an authority empowered to issue licences under Chapter II or, as the case may be, Chapter III;

(21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed ²[7500] kilograms;

³[(21A) “manufacturer” means a person who is engaged in the manufacture of motor vehicles;]

(22) “maxicab” means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward;

(23) “medium goods vehicle” means any goods carriage other than a light motor vehicle or a heavy goods vehicle;

(24) “medium passenger motor vehicle” means any public service vehicle or private service vehicle, or educational institution bus other than a motor cycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle;

(25) “motorcab” means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward;

(26) “motor car” means any motor vehicle other than a transport vehicle, omnibus, road-roller, tractor, motor cycle or invalid carriage;

(27) “motor cycle” means a two-wheeled motor vehicle, inclusive of any detachable side-car having an extra wheel, attached to the motor vehicle;

(28) “motor vehicle” or “vehicle” means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding ⁴[twenty-five cubic centimetres];

(29) “omnibus” means any motor vehicle constructed or adapted to carry more than six persons excluding the driver;

(30) “owner” means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;

(31) “permit” means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle;

(32) “prescribed” means prescribed by rules made under this Act;

(33) “private service vehicle” means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes;

(34) “public place” means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage;

(35) “public service vehicle” means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage;

(36) “registered axle weight” means in respect of the axle of any vehicle, the axle weight certified and registered by the registering authority as permissible for that axle;

(37) “registering authority” means an authority empowered to register motor vehicles under Chapter IV;

(38) “route” means a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another;

⁵[(39) “semi-trailer” means a vehicle not mechanically propelled (other than a trailer), which is intended to be connected to a motor vehicle and which is so constructed that a portion of it is super-imposed on, ; and a part of whose weight is borne by, that motor vehicle;] ;

(40) “stage carriage” means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or j reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey;

(41) “State Government” in relation to a Union territory means the Administrator thereof appointed under article 239 of the Constitution;

(42) “State transport undertaking” means any undertaking providing road transport service, where such undertaking is carried on by,-

(i) the Central Government or a State Government;

(ii) any Road Transport Corporation established under section 3 of the Road Transport Corporations Act, 1950 (64 of 1950);

(iii) any municipality or any corporation or company owned or controlled by the Central Government or one or more State Governments, or by the Central Government and one or more State Governments.

⁶[(iv) Zila Parishad or any other similar local authority.]

Explanation.-For the purposes of this clause, “road transport service” means a service of motor vehicles carrying passengers or goods or both by road for hire or reward;

(43) “tourist vehicle” means a contract carriage, constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed in this behalf;

(44) “tractor” means a motor vehicle which is not itself constructed to ; carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller;

(45) “traffic signs” includes all signals, warning sign posts, direction posts, markings on the road or other devices for the information, guidance or direction of drivers of motor vehicles;

(46) “trailer” means any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle;

(47) “transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;

(48) “unladen weight” means the weight of a vehicle or trailer including all equipment ordinarily used with the vehicle or trailer when working, but excluding the weight of a driver or attendant; and where alternative parts or bodies are used the unladen weight of the vehicle means the weight of the vehicle with the heaviest such alternative part or body;

(49) “weight” means the total weight transmitted for the time being by the wheels of a vehicle to the surface on which the vehicle rests. ;

1. Sub-clause (a) omitted by Act 54 of 1994, sec. 2 (w.e.f. 14-11-1994).

2. Subs, by Act 54 of 1994, sec. 2, for “6000” (w.e.f. 14-11-1994).

3. Ins. by Act 54 of 1994, sec. 2 (w.e.f. 14-11-1994).

4. Subs, by Act 54 of 1994, sec. 2, for “thirty-five cubic centimetres” (w.e.f. 14-11-1994).

5. Subs, by Act 54 of 1994, sec. 2, for clause (39) (w.e.f. 14-11-1994).

6. Ins. by Act 54 of 1994, sec. 2 (w.e.f. 14-11-1994).

Comment / Related Citation:

Constitution of India, Article 142 – Motor Vehicles Act, 1988, Sections 2(14) and 2(47) – MACT – Liability of insurer – Driving licence – Invalid driving license – Goods vehicle – Licence having been granted for a period of 20 years – Presumption arises that it was meant for the purpose of vehicle other than transport vehicle – Vehicle in question was goods vehicle – Insurer held not liable – In exercise of jurisdiction under Article 142 court directed insurer to deposit amount and recover from owner and driver.

ORIENTAL INSURANCE CO. LTD. v/s ANGAD KOL & ORS. [(2009) 2 SCR 695 = JT 2009 (2) SC 587 = 2009 AIR(SCW) 2747 = 2009(3) SCALE 749 = AIR 2009 SC 2151 = (2009) 11 SCC 356 = (2009) 3 SCC(Cri) 1371]

&

Motor Vehicles Act , 1988, Sections 2(14), (47), 66 – Karnataka Motor Ve­hicles Taxation Act, 1957, Section 3 and 16 – Tax exemption – Goods carriage – Tractor trailer – Transport vehicle – Whether the taxation authority under the Karnataka Motor Vehicles Taxation Act, 1957 was right in taxing the “tractor-trailer” as a separate and distinct vehicle, different from a tractor and denying exemption sought by the appellant under section 16 of the said 1957 Act on the ground that the tractor-trailer was a distinct category of “goods carriage” requiring permit under section 66 of the Motor Vehicles Act, 1988? – Held yes – When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods – Tractor-trailer falls under section 2(14) as a “goods carriage” and consequently, it falls under the definition of “transport vehicle” under section 2(47) of the M.V. Act, 1988. (Para, 24)

M/S. NATWAR PARIKH AND CO. LTD. v/s STATE OF KARNATAKA AND OTHERS [AIR 2005 SC 3428 = (2005) 7 SCC 364 = JT 2005 (8) SC 39 = 2005 (Supp2) SCR 1100 = (2005) 7 Scale 91]

Section 3. Necessity for driving licence.

(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than ¹[a motor cab or motor cycle] hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving licence specifically entitles him so to do.

(2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.

1. Subs. by Act 54 of 1994, sec. 3, for “a motor cab” (w.e.f. 14-11-1994).

Section 4. Age limit in connection with driving of motor vehicles.

(1) No person under the age of eighteen years shall drive a motor vehicle in any public place:

Provided that ¹[a motor cycle with engine capacity not exceeding 50cc] may be driven in a public place by a person after attaining the age of sixteen years.

(2) Subject to the provisions of section 18, no person under the age of twenty years shall drive a transport vehicle in any public place.

(3) No learner’s licence or driving licence shall be issued to any person to drive a vehicle of the class to which he has made an application unless he is eligible to drive that class of vehicle under this section.

1. Subs. by Act 54 of 1994, sec. 4, for “a motor cycle without gear” (w.e.f. 14-11-1994).

1. Subs. by Act 54 of 1994, sec. 4, for “a motor cycle without gear” (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988 Section. 4(5) – Accident – Bus ran over appellant’s legs – Amputation of right leg – Claim for compensation of rs.4,00,000 – Rejected by tribunal by holding that accident occurred due to negligence of appellant – H.c. granted compensation of rs.1,00,000 – Appeal in supreme court – Held, appellant aged 62 years suffered permanent disability – End of justice would be done if award enhanced to rs.2,00,000.

ZUMAR LAL v/s NAND KISHORE [(2001) ACJ 2007]

Section 5. Responsibility of owners of motor vehicles for contravention of sections 3 and 4.

No owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle.

Comment / Related Citation:

Motor Vehicles Act, 1988, Sections 4 and 5 – MACT – Liability of insurer – Driver of vehicle at the time of accident was 15 years old – Not holding a valid and effective driving license – Owner of vehicle liable to make payment compensation and not the insurer.

UNITED INDIA INSURANCE CO.LTD v/s RAKESH KUMAR ARORA & ORS [AIR 2009 SC 24 = (2008) 13 SCC 298 = JT 2008 (11) SC 23 = 2008 AIR (SCW) 6872 = (2009) 3 SCC(Cri) 601]

Section 6. Restriction on the holding of driving licences.

(1) No person shall come while he holds any driving licence for the time being in force, hold any other driving licence except a learner’s licence or a driving licence issued in accccordance with the provisions of section 18 or a document authorising, in accccordance with the rules made under section 139, the person specified therein to drive a motor vehicle.

(2) No holder of a driving licence or a learner’s licence shall permit it to the used by any other person.

(3) Nothing in this section shall prevent a licensing authority having the jurisdiction referred to in sub-section (1) of section 9 from adding to the classes of vehicles which the driving licence authorises the holder to drive.

Section 7. Restrictions on the granting of learner’s licences for certain vehicles.

¹ [(1) No person shall be granted a learner’s licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year.]

(2) No person under the age of eighteen years shall be granted a learner’s licence to drive a motor cycle without gear except with the consent in writing of the person having the care of the person desiring the learner’s licence.

1. Subs. by Act 54 of 1994, sec. 5, for sub-section (1) (w.e.f. 14-11-1994).

Section 8. Grant of learner’s licence.

(1) Any person who is not disqualified under section 4 for driving a motor vehicle and who is not for the time being disqualified for holding or obtaining a driving licence may, subject to the provisions of section 7, apply to the licensing authority having jurisdiction in the area-

(i) in which he ordinarily resides or carries on business, or

(ii) in which the school or establishment referred to in section 12 from where he intends to receive instruction in driving a motor vehicle is situate, for the issue to him of a learner’s licence.

(2) Every application under sub-section (1) shall be in such form and shall be accompanied by such documents and with such fee as may be prescribed by the Central Government.

(3) Every application under sub-section (1) shall be accompanied by a medical certificate in such form as may be prescribed by the Central Government and signed by such registered medical practitioner, as the State Government or any person authorised in this behalf by the State Government may, by notification in the Official Gazette, appoint for this purpose:

¹[Provided that no such medical certificate is required for licence to drive a vehicle other than a transport vehicle.]

(4) If, from the application or from the medical certificate referred to in subsection (3), it appears that the applicant is suffering from any disease or disability which is likely to cause the driving by him of a motor vehicle of the class which he would be authorised by the learner’s licence applied for to drive to be a source of danger to the public or to the passengers, the licensing authority shall refuse to issue the learner’s licence:

Provided that a learner’s licence limited to driving an invalid carriage may be issued to the applicant, if the licensing authority is satisfied that he is fit to drive such a carriage.

(5) No learner’s licence shall be issued to any applicant unless he passes to the satisfaction of the licensing authority such test as may be prescribed by the Central Government.

(6) When an application has been duly made to the appropriate licensing authority and the applicant has satisfied such authority of his physical fitness under sub-section (3) and has passed to the satisfaction of the licensing authority the test referred to in sub-section (5), the licensing authority shall, subject to the provisions of section 7, issue the applicant a learner’s licence unless the applicant is disqualified under section 4 for driving a motor vehicle or is for the time being disqualified for holding or obtaining a licence to drive a motor vehicle:

Provided that a licensing authority may issue a learner’s licence to drive a motor cycle or a light motor vehicle notwithstanding that it is not the appropriate licensing authority, if such authority is satisfied that there is good reason for the applicant’s inability to apply to the appropriate licensing authority.

(7) Where the Central Government is satisfied that it is necessary or expedient so to do, it may, by rules made in this behalf, exempt generally, either absolutely or subject to such conditions as may be specified in the rules, any class of persons from the provisions of sub-section (3), or sub-section (5), or both.

(8) Any learner’s licence for driving a motor cycle in force immediately before the commencement of this Act shall, after siTch commencement, be deemed to be effective for driving a motor cycle with or without gear.

1. Added by Act 54 of 1994, sec. 6 (w.e.f. 14-11-1994).

Section 9. Grant of driving licence.

(1) Any person who is not for the time being disqualified for holding or obtaining a driving licence may apply to the licensing authority having jurisdiction in the area-

(i) in which he ordinarily resides or carries on business, or

(ii) in which the school or establishment referred to in section 12 from where he is receiving or has received instruction in driving a motor vehicle is situated.

for the issue to him of a driving licence.

(2) Every application under sub-section (1) shall be in such form and shall be accompanied by such fee and such documents as may be prescribed by the Central Government.

¹[(3) If the applicant passes such test as may be prescribed by the Central Government, he shall be issued the driving licence:

Provided that no such test shall be necessary where the applicant produces proof to show that-

(a) (i) the applicant has previously held a driving licence to drive such class of vehicle and that the period between the date of expiry of that licence and the date of the application does not exceed five years, or

(ii) the applicant holds or has previously held a driving licence to drive such class of vehicle issued under section 18, or

(iii) the applicant holds a driving licence to drive such class of vehicle issued by a competent authority of any country outside India, subject to the condition that the applicant complies with the provisions of sub-section (3) of section 8,

(b) the applicant is not suffering from any disability which is likely to cause the driving by him to be a source of danger to the public; and the licensing authority may, for that purpose, require the applicant to produce a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8:

Provided further that where the application is for a driving licence to drive a motor vehicle (not being a transport vehicle), the licensing authority may exempt the applicant from the test of competence to drive a vehicle prescribed under this sub-section, if the applicant possesses a driving certificate issued by any institution recognised in this behalf by the State Government.]

(4) Where the application is for a licence to drive a transport vehicle, no such authorisation shall be granted to any applicant unless he possesses such minimum educational qualification as may be prescribed by the Central Government and a driving certificate issued by a school or establishment referred to in section 12.

²[(5) Where the applicant does not pass the test, he may be permitted to reappear for the test after a period of seven days:

Provided that where the applicant does not pass the test even after three appearances, he shall not be qualified to re-appear for such test before the expiry of a period of sixty days from the date of last such test.]

(6) The test of competence to drive shall be carried out in a vehicle of the type to which the application refers:

Provided that a person who passed a test in driving a motor cycle with gear shall be deemed also to have passed a test in driving a motor cycle without gear.

(7) When any application has been duly made to the appropriate licensing authority and the applicant has satisfied such authority of his competence to drive, the licensing authority shall issue the applicant a driving licence unless the applicant is for the time being disqualified for holding or obtaining a driving licence:

Provided that a licensing authority may issue a driving licence to drive a motor cycle or a light motor vehicle notwithstanding that it is not the appropriate licensing authority, if the licensing authority is satisfied that there is good and sufficient reason for the applicant’s inability to apply to the appropriate licensing authority:

Provided further that the licensing authority shall not issue a new driving licence to the applicant, if he had previously held a driving licence, unless it is satisfied that there is good and sufficient reason for his inability to obtain a duplicate copy of his former licence.

(8) If the licensing authority is satisfied, after giving the applicant an opportunity of being heard, that he-

(a) is a habitual criminal or a habitual drunkard; or

(b) is a habitual addict to any narcotic drug or psychotropic substance within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or

(c) is a person whose licence to drive any motor vehicle has, at any time earlier, been revoked,

it may, for reasons to be recorded in writing, make an order refusing to issue a driving licence to such person and any person aggrieved by an order made by a licensing authority under this sub-section may, within thirty days of the receipt of the order, appeal to the prescribed authority.

(9) Any driving licence for driving a motor cycle in force immediately before the commencement of this Act shall, after such commencement, be deemed to be effective for driving a motor cycle with or without gear.

1. Subs. by Act 54 of 1994, sec. 7, for sub-section (3) (w.e.f. 14-11-1994).

2. Subs by Act 54 of 1994, sec. 7, for sub-section (5) (w.e.f. 14-11-1994).

Section 10. Form and contents of licences to drive.

(1) Every learner’s licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.

(2) A learner’s licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:-

(a) motor cycle without gear;

(b) motor cycle with gear;

(c) invalid carriage;

(d) light motor vehicle;

¹[(e) transport vehicle;]

(i) road-roller;

(j) motor vehicle of a specified description.

1. Subs. by Act 54 of 1994, sec. 8, for clauses (e) to (h) (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988, Sections 3, 10 and 149 – Central Motor Vehicles Rules, 1989, Rule 51 – MACT – Liability of insurer – Driving license – Transport vehicle – Autorikshaw/delivery van – For transport vehicle driving license is effective for a period of three years – Fact that license was granted for a period of 20 years, clearly shows that driver of vehicle, was not granted a valid driving license for driving a transport vehicle – Insurer cannot be held liable.

NEW INDIAN ASSURANCE CO. LTD. v/s ROSHANBEN RAHEMANSHA FAKIR & ANR [AIR 2008 SC 2266 = (2008) 8 SCC 253 = 2008 AIR(SCW) 4048 = (2008) 3 SCC(Cri) 476]

&

Motor Vehicles Act, 1988, Sections 10(2) and 149 – MACT – Liability of insurer – Scooterist who was not holding license for driving two wheeler and holding HMV license – Insurer could not be held liable to pay the amount of compensation – Considering the nature of case insurer shall satisfy the award and can recover the same from owner of vehicle with interest.

ORIENTAL INSURANCE CO. LTD. v/s ZAHARULNISHA & ORS. [AIR 2008 SC 2218 = (2008) 12 SCC 385 = 2008 AIR(SCW) 3251 = (2009) 1 SCC(Cri) 431]

Section 11. Additions to driving licence.

(1) Any person holding a driving licence to drive any class or description of motor vehicles, who is not for the time being disqualified for holding or obtaining a driving licence to drive any other class or description of motor vehicles, may apply to the licensing authority having jurisdiction in the area in which he resides or carries on his business in such form and accompanied by such, documents and with such fees as may be prescribed by the Central Government for the addition of such other class or description of motor vehicles to the licence.

(2) Subject to such rules as may be prescribed by the Central Government, the provisions of section 9 shall apply to an application under this section as if the said application was for the grant of a licence under that section to drive the class or description of motor vehicles which the applicant desires to be added to his licence.

Section 12. Licensing and regulation of schools or establishments for imparting instruction in driving of motor vehicles.

(1) The Central Government may make rules for the purpose of licensing and regulating, by the State Governments, schools or establishments (by whatever name called) for imparting instruction in driving of motor vehicles and matters connected therewith.

(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) licensing of such schools or establishments including grant, renewal and revocation of such licences;

(b) supervision of such schools or establishments;

(c) the form of application and the form of licence and the particulars to be contained therein;

(d) fee to be paid with the application for such licences;

(e) conditions subject to which such licences may be granted;

(f) appeals against the orders of refusal to grant or renew such licences and appeals against the orders revoking such licences;

(g) conditions subject to which a person may establish and maintain any such school or establishment for imparting instruction in driving of motor vehicles;

(h) nature, syllabus and duration of course or courses for efficient instruction in driving any motor vehicle;

(i) apparatus and equipments (including motor vehicles fitted with dual control) required for the purpose of imparting such instruction;

(j) suitability of the premises at which such schools or establishments may be established or maintained and facilities to be provided therein;

(k) qualifications, both educational and professional (including experience), which a person imparting instruction in driving a motor vehicle shall possess;

(l) inspection of such schools and establishments (including the services rendered by them and the apparatus, equipments and motor vehicles maintained by them for imparting such instruction);

(m) maintenance of records by such schools or establishments;

(n) financial stability of such schools or establishments;

(o) the driving certificates, if any, to be issued by such schools or establishments and the form in which such driving certificates shall be issued and the requirements to be complied with for the purposes of issuing such certificates;

(p) such other matters as may be necessary to carry out the purposes of this section.

(3) Where the Central Government is satisfied that it is necessary or expedient so to do, it may, by rules made in this behalf, exempt generally, either absolutely or subject to such conditions as may be specified in the rules, any class of schools or establishments imparting instruction in driving of motor vehicles or matters connected therewith from the provisions of this section.

(4) A school or establishment imparting instruction in driving of motor vehicles or matters connected therewith immediately before the commencement of this Act, whether under a licence or not, may continue to impart such instruction without a licence issued under this Act for a period of one month from such commencement, and if it has made an application for such licence under this Act within the said period of one month and such application is in the prescribed form, contains the prescribed particulars and is accompanied by the prescribed fee, till the disposal of such application by the licensing authority.

Section 13. Extent of effectiveness of licences, to drive motor vehicles.

A learner’s licence or a driving licence issued under this Act shall be effective throughout India.

Section 14. Currency of licences to drive motor vehicles.

(1) A learner’s licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the licence.

(2) A driving licence issued or renewed under this Act shall,-

(a) in the case of a licence to drive a transport vehicle, be effective for a period of three years: ¹[***]

²[Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and]

(b) in the case of any other licence,-

(i) if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of ³[fifty years] on the date of issue or, as the case may be, renewal thereof,-

(A) be effective for a period of twenty years from the date of such issue or renewal; or

(B) until the date on which such person attains the age of ³[fifty years], whichever is earlier;

⁴[(ii) if the person referred to in sub-clause (i), has attained the age of fifty years on the date of issue or as the case may be, renewal thereof, be effective, on payment of such fee as may be prescribed, for a period of five years from the date of such issue or renewal:]

Provided that every driving licence shall, notwithstanding its expiry under this sub-section continue to be effective for a period of thirty days from such expiry.

1. The word “and” omitted by Act 54 of 1994, sec. 9 (w.e.f. 14-11-1994).

2. Ins. by Act 54 of 1994, sec. 9 (w.e.f. 14-11-1994).

3. Subs. by Act 54 of 1994. sec. 9, for “forty years” (w.e.f. 14-11-1994).

4. Subs. by Act 54 of 1994. sec. 9, (w.e.f 14-11-1994).

Section 15. Renewal of driving licences.

(1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry:

Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal:

Provided further that where the application is for the renewal of a licence to drive a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8, and the provisions of sub-section (4) of section 8 shall, so far as may be, apply in relation to every such case as they apply in relation to a learner’s licence.

(2) An application for the renewal of a driving licence shall be made in such form and accompanied by such documents as may be prescribed by the Central Government.

(3) Where an application for the renewal of a driving licence is made previous to, or not more than thirty days after the date of its expiry, the fee payable for such renewal shall be such as may be prescribed by the Central Government in this behalf.

(4) Where an application for the renewal of a driving licence is made more than thirty days after the date of its expiry the fee payable for such renewal shall be such amount as may be prescribed by the Central Government:

Provided that the fee referred to in sub-section (3) may be accepted by the licensing authority in respect of an application for the renewal of a driving licence made under this sub-section if it is satisfied that the applicant was prevented by good and sufficient cause from applying within the time specified in such-section (3):

Provided further that if the application is made more than five years after the driving licence has ceased to be effective the licensing authority may refuse to renew the driving licence unless the applicant, undergoes and passes to its satisfaction the test of competence to drive referred to in sub-section (3) of section 9.

(5) Where the application for renewal has been rejected, the fee paid shall be I refunded to such extent and in such manner as may be prescribed by the Central Government.

(6) Where the authority renewing the driving licence is not the authority which issued the driving licence it shall intimate the fact of renewal to the authority which issued the driving licence.

Comment / Related Citation:

Motor Vehicles Act, 1988 – Section 15(1) – MACT – Driving License – Expired at time of accident – Invalid license – Policy condition violated – Driver driven vehicle got involved in accident had a driving license expired before date of accident – Renewed after more two years of accident taken place – Held that High Court has approached the contention in a very unsatisfactory manner, holding that once license has been renewed, Insurance Company liable to pay compensation – Under provision a driving license can be renewed from date of its expiry if an application is made to it for that purpose – But application for renewal of a licence made more than thirty days after date of its expiry, driving licence shall be renewed with effect from date of its renewal – Thus, vehicle driven without a valid driving licence and policy condition had been violated – Appellant Insurance Company already deposited amount covered by award to be disbursed to claimants – By permitting appellant to realize said amount from Respondent 3/ insured allowed appeal.

NATIONAL INSURANCE COMPANY LIMITED v/s JARNAIL SINGH AND OTHERS [(2007) 15 SCC 28]

&

Motor Vehicles Act, 1988, Sections 3, 15(1) and 149(2) – Central Motor Vehicles Rules, 1989, Rule 4 – Evidence Act, 1872, Sections 58 and 106 – MACT – Driving licence – Learner’s licence – As on the date of accident on 5.1.2001 the appellant-owner driver of vehicle was not duly licensed as his learner’s licence expired on 22.12.2000 – He file an application for grant of licence much later – Insurance company was not bound to reimburse him in terms of Contract of Insurance.

BHUWAN SINGH v/s M/S ORIENTAL INSURANCE COMPANY LTD. & ANR. [(2009) 5 SCC 136 = JT 2009 (3) SC 333 = 2009 AIR(SCW) 2865 = (2009) 4 SCR 195 = 2009(3) SCALE 798 = AIR 2009 SC 2177 = (2009) 2

Section 16. Revocation of driving licence on grounds of disease or disability.

Notwithstanding anything contained in the foregoing sections, any licensing authority may at any time revoke a driving licence or may require, as a condition of continuing to hold such driving licence, the holder thereof to produce a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8, if the licensing authority has reasonable grounds to believe that the holder of the driving licence is, by virtue of any disease of disability, unfit to drive a motor vehicle and where the authority revoking a driving licence is not the authority which issued the same, it shall intimate the fact of revocation to the authority which issued that licence.

Section 17. Orders refusing or revoking driving licences and appeals therefrom.

(1) Where a licensing authority refuses to issue any learner’s licence or to issue or renew, or revokes any driving licence, or refuses to add a class or description of motor vehicle to any driving licence, it shall do so by an order communicated to the applicant or the holder, as the case may be, giving the reasons in writing for such refusal or revocation.

(2) Any person aggrieved by an order made under sub-section (1) may within thirty days of the service on him of the order, appeal to the prescribed authority which shall decide the appeal after giving such person and the authority which made the order an opportunity of being heard and the decision of the appellate authority shall be binding on the authority which made the order.

Section 18. Driving licences to drive motor vehicles, belonging to the Centra Government.

(1) Such authority as may be prescribed by the Central Government may issue driving licence valid throughout India to persons who have completed their eighteenth year to drive motor vehicles which are the property or for the time being under the exclusive control of the Central Government and are used for Government purposes relating to the defence of the country and unconnected with any commercial enterprise.

(2) A driving licence issued under this section shall specify the class or description of vehicle which the holder is entitled to drive and the period for which he is so entitled.

(3) A driving licence issued under this section shall not entitle the holder to drive any motor vehicle except a motor vehicle referred to in sub-section (1).

Section 19. Power of licensing authority to disqualify from holding a driving licence or revoke such licence.

(1) If a licensing authority is satisfied, after giving the holder of a driving licence an opportunity of being heard, that he-

(a) is a habitual criminal or habitual drunkard; or

(b) is a habitual addict to any narcotic drug or psychotropic substance within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or

(c) is using or has used a motor vehicle in the commission of a cognizable offence; or

(d) has by his previous conduct as driver of a motor vehicle shown that his driving is likely to be attended with danger to the public; or

(e) has obtained any driving licence or a licence to drive a particular class or description of motor vehicle by fraud or misrepresentation; or

(f) has committed any such act which is likely to cause nuisance or danger to the public, as may be prescribed by the Central Government, having regard to the objects of this Act; or

(g) has failed to submit to, or has not passed, the tests referred to in the proviso to sub-section (3) of section 22; or

(h) being a person under the age of eighteen years who has been granted a learner’s licence or a driving licence with the consent in writing of the person having the care of the holder of the licence and has ceased to be in such care,

it may, for reasons to be recorded in writing, make an order-

(i) disqualifying that person for a specified period for holding 0n obtaining any driving licence to drive all or any classes on descriptions of vehicles specified in the licence; or

(ii) revoke any such licence.

(2) Where an order under sub-section (1) is made, the holder of a driving licence shall forthwith surrender his driving licence to the licensing authority making the order, if the driving licence has not already been surrendered, and the licensing authority shall,-

(a) if the driving licence is a driving licence issued under this Act, keep it until the disqualification has expired or has been removed; or

(b) if it is not a driving licence issued under this Act, endorse the disqualification upon it and send it to the licensing authority by which it was issued; or

(c) in the case of revocation of any licence, endorse the revocation upon it and if it is not the authority which issued the same, intimate the fact of revocation to the authority which issued that licence:

Provided that where the driving licence of a person authorises him to drive more than one class or description of motor vehicles and the order, made under sub-section (1), disqualifies him from driving any specified class or description or motor vehicles, the licensing authority shall endorse the disqualification upon the driving licence and return the same to the holder.

(3) Any person aggrieved by an order made by a licensing authority under sub-section (1) may, within thirty days of the receipt of the order, appeal to the prescribed authority, and such appellate authority shall give notice to the licensing authority and hear either party if so required by that party and may pass such order as it thinks fit and an order passed by any such appellate authority shall be final.

Section 20. Power of Court to disqualify.

(1) Where a person is convicted of an offence under this Act or of an offence in the commission of which a motor vehicle was used, the court by which such person is convicted may, subject to the provisions of this Act, in addition to imposing any other punishment authorised by law, declare the person so convicted to be disqualified, for such period as the Court may specify, from holding any driving licence to drive all classes to description of vehicles, or any particular class or description of such vehicles, as are specified in such licence:

Provided that in respect of an offence punishable under section 183 no such order shall be made for the first or second offence.

(2) Where a person is convicted of an offence under clause (c) of sub-section (1) of section 132, section 134 or section 185, the Court convicting any person of any such offence shall order the disqualification under sub-section (1), and if the offence is relatable to clause (c) of sub-section (1) of section 132 or section 134, such disqualification shall be for a period of not less than one month, and if the offence is relatable to section 185, such disqualification shall be for a period of not less than six months.

(3) A Court shall, unless for special reasons to be recorded in writing it thinks fit to order otherwise, order the disqualification of a person-

(a) who having been convicted of an offence punishable under section 184 is again convicted of an offence punishable under that section,

(b) who is convicted of an offence punishable under section 189, or

(c) who is convicted of an offence punishable under section 192:

Provided that the period of disqualification shall not exceed, in the case referred to in clause (a), five years, or in the case referred to in clause (b), two years or, in the case referred to in clause (c), one year.

(4) A Court ordering the disqualification of a person convicted of an offence punishable under section 184 may direct that such person shall, whether he has previously passed the test of competence to drive as referred to in sub-section (3) of section 9 or not, remain disqualified until he has subsequent to the making of the order of disqualification passed that test to the satisfaction of the licensing authority.

(5) The court to which an appeal would ordinarily lie from any conviction of an offence of the nature specified in sub-section (1) may set aside or vary any order of disqualification made under that sub-section notwithstanding that no appeal would lie against the conviction as a result of which such order of disqualification was made.

Section 21. Suspension of driving licence in certain cases.

(1) Where, in relation to a person who had been previously convicted of an offence punishable under section 184, a case is registered by a police officer on the allegation that such person has, by such dangerous driving as is referred to in the said section 184, of any class or description of motor vehicle caused the death of, or grievous hurt to, one or more persons, the driving licence held by such person shall in relation to such class or description of motor vehicle become suspended-

(a) for a period of six months from the date on which the case is registered, or

(b) if such person is discharged or acquitted before the expiry of the period aforesaid, until such discharge or acquittal, as the case may be.

(2) Where by virtue of the provisions of sub-section (1), the driving licence held by a person becomes suspended, the police officer, by whom the case referred to in sub-section (1) is registered, shall bring such suspension to the notice of the Court competent to take cognizance of such offence, and thereupon, such Court shall take possession of the driving licence, endorse the suspension thereon and intimate the fact of such endorsement to the licensing authority by which the licence was granted or last renewed.

(3) Where the person referred to in sub-section (1) is acquitted or discharged, the Court shall cancel the endorsement on such driving licence with regard to the suspension thereof.

(4) If a driving licence in relation to a particular class or description of motor vehicles is suspended under sub-section (1), the person holding such licence shall be debarred from holding or obtaining any licence to drive such particular class or description of motor vehicles so long as the suspension of the driving licence remains in force.

Section 22. Suspension or cancellation of driving licence on conviction.

(1) Without prejudice to the provisions of sub-section (3) of section 20 where a person, referred to in sub-section (1) of section 21, is convicted of an offence of causing, by such dangerous driving as is referred to in section 184 of any class or description of motor vehicle the death of, or grievous hurt to, one or more persons, the Court by which such person is convicted may cancel, or suspend for such period as it may think fit, the driving licence held by such person in so far as it relates to that class or description of motor vehicle.

(2) Without prejudice to the provisions of sub-section (2) of section 20, if a person, having been previously convicted of an offence punishable under section 185 is again convicted of an offence punishable under that section, the Court, making such subsequent conviction, shall, by order, cancel the driving licence held by such person.

(3) If a driving licence is cancelled or suspended under this section, the court shall take the driving licence in its custody, endorse the cancellation or, as the case may be, suspension, thereon and send the driving licence so endorsed to the authority by which the licence was issued or last renewed and such authority shall, on receipt of the licence, keep the licence in its safe custody, and in the case of a suspended licence, return the licence to the holder thereof after the expiry of the period of suspension on an application made by him for such return:

Provided that no such licence shall be returned unless the holder thereof has, after the expiry of the period of suspension, undergone and passed, to the satisfaction of the licensing authority by which the licence was issued or last renewed, a fresh test of competence to drive referred to in sub-section (3) of section 9 and produced a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8.

(4) If a licence to drive a particular class or description of motor vehicles is cancelled or suspended under this section, the person holding such a licence shall be debarred from holding, or obtaining, any licence to drive such particular class or description of motor vehicles so long as the cancellation or suspension of the driving licence remains in force.

Section 23. Effect of disqualification order.

(1) A person in respect of whom any disqualification order is made under section 19 or section 20 shall be debarred to the extent and for the period specified in such order from holding or obtaining a driving licence and the driving licence, if any, held by such person at the date of the order shall cease to be effective to such extent and during such period.

(2) The operation of a disqualification order mad under section 20 shall not be suspended or postponed while an appeal is pending against such order or against the conviction as a result of which such order is made, unless the appellate Court so directs.

(3) Any person in respect of whom any disqualification order has been made may at any time after the expiry of six months from the date of the order apply to the Court or other authority by which the order was made, to remove the disqualification; and the Court or authority, as the case may be, may, having regard to all the circumstances, either cancel or vary the disqualification order:

Provided that where the Court or other authority refuses to cancel or vary any disqualification order under this section, a second application thereunder shall not be entertained before the expiry of a period of three months from the date of such refusal.

Section 24. Endorsement.

(1) The Court or authority making an order of disqualification shall endorse or cause to be endorsed upon the driving licence if any, held by the person disqualified, particulars of the order of disqualification and of any conviction of an offence in respect of which an order of disqualification is made; and particulars of any cancellation or variation of an order of disqualification made under sub-section (3) of section 23 shall be similarly so endorsed.

(2) A Court by which any person is convicted of an offence under this Act as may be prescribed by the Central Government, having regard to the objects of this Act, shall whether or not a disqualification order is made in respect of such conviction, endorse or cause to be endorsed particulars at such conviction on any driving licence held by the person convicted.

(3) Any person accused of an offence prescribed under sub-section (2) shall when attending the Court bring with him his driving licence if it is in his possession.

(4) Where any person is convicted of any offence under this Act and sentenced to imprisonment for a period exceeding three months, the Court awarding the sentence shall endorse the fact of such sentence upon the driving licence of the person concerned and the prosecuting authority shall intimate the fact of such endorsement to the authority by which the driving licence was granted or last renewed.

(5) When the driving licence is endorsed or caused to be endorsed by any Court, such Court shall send the particulars of the endorsement to the licensing authority by which the driving licence was granted or last renewed.

(6) Where on an appeal against any conviction or order of a Court, which has been endorsed on a driving licence, the appellate court varies or sets aside the conviction or order, the appellate court shall inform the licensing authority by which the driving licence was granted or last renewed and such authority shall amend or cause to be amended the endorsement.

Section 25. Transfer of endorsement and issue of driving licence free from endorsement.

(1) An endorsement on any driving licence shall be transferred to any new or duplicate driving licence obtained by the holder thereof until the holder becomes entitled under the provisions of this section to have a driving licence issued to him free from endorsement.

(2) Where a driving licence is required to be endorsed and the driving licence is not in the possession of the Court or authority by which the endorsement is to be made, then-

(a) if the person in respect of whom the endorsement is to be made is at the time the holder of a driving licence, he shall produce the driving licence to the Court or authority within five days, or such longer time as the court or authority may fix; or

(b) if, not being then the holder of a driving licence, he subsequently obtains a driving licence, he shall within five days after obtaining the driving licence produce it to the Court or authority,

and if the driving licence is not produced within the time specified, it shall, on the expiration of such time, be of no effect until it is produced for the purpose ; of endorsement.

(3) A person whose driving licence has been endorsed shall, if during a continuous period of three years after such endorsement no further endorsement has been made against him, be entitled on surrendering his driving licence and on payment of a fee of five rupees, to receive a new driving licence free from all endorsements:

Provided that if the endorsement is only in respect of an offence contravening the speed limits referred to in section 112, such person shall be entitled to receive a new driving licence free from such endorsements on the expiration of one year of the date of the endorsement:

Provided further that in reckoning the said period of three years and one year, respectively, and period during which the said person was disqualified for holding or obtaining a driving licence shall be excluded.

Section 26. Maintenance of State Registers of Driving Licences.

(1) Each State Government shall maintain, in such form as may be prescribed by the Central Government, a register to be known as the State Register of Driving Licences, in respect of driving licences issued and renewed by the licensing authorities of the State Government, containing the following particulars, namely:-

(a) names and addresses of holders of driving licences;

(b) licence numbers;

(c) dates of issue or renewal of licences;

(d) dates of expiry of licences;

(e) classes and types of vehicles authorised to be driven; and

(f) such other particulars as the Central Government may prescribe.

(2) Each State Government shall supply to the Central Government a ¹[printed copy or copy in such other form as the Central Government may require], of the State Register of Driving Licences and shall inform the Central Government without delay of all additions to and other amendments in such register made from time to time.

(3) The State Register of Driving Licences shall be maintained in such manner as may be prescribed by the State Government.

1. Subs, by Act 54 of 1994, sec. 10, for “printed copy” (w.e.f. 14-11-1994).

Section 27. Power of Central Government to make rules.

The Central Government may make rules-

(a) regarding conditions referred to in such-section (2) of section 3;

(b) providing for the form in which the application for learner’s licence may be made, the information it shall contain and the documents to be submitted with the application referred to in sub-section (2) of section 8;

(c) providing for the form of medical certificate referred to in subsection (3) of section 8;

(d) providing for the particulars for the test referred to in sub-section (5) of section 8;

(e) providing for the form in which the application for driving licence may be made, the information it shall contain and the documents to be submitted with the application referred to in sub-section (2) of section 9;

(f) providing for the particulars regarding test of competence to drive, referred to in sub-section (3) of section 9;

(g) specifying the minimum educational qualifications of persons to whom licences to drive transport vehicles may be issued under this Act and the time within which such qualifications are to be acquired by such persons;

(h) providing for the form and contents of the licences referred to in subsection (1) of section 10;

(i) providing for the form and contents of the application referred to in sub-section (1) of section 11 and documents to be submitted with the application and the fee to be charged;

(j) providing for the conditions subject to which section 9 shall apply to an application made under section 11;

(k) providing for the form and contents of the application referred to in sub-section (1) of section 15 and the documents to accompany such application under sub-section (2) of section 15;

(l) providing for the authority to grant licences under sub-section (I) o section 18;

(m) specifying the fees payable under sub-section (2) of section 8, sub section (2) of section 9 and sub-sections (3) and (4) of section 15 for the grant of learner’s licences, and for the grant and renewal c driving licences and licences for the purpose of regulating the schools or establishments for imparting instructions in driving mote vehicles;

(n) specifying the acts for the purposes of clause (f) of sub-section (1) of section 19;

(o) specifying the offences under this Act for the purposes of sub-section (2) of section 24;

(p) to provide for all or any of the matters referred to in sub-section (1) of section 26;

(q) any other matter which is, or has to be, prescribed by the Central Government.

Section 28. Power of State Government to make rules.

(1) A State Government may make rules for the purpose of carrying into effect the provisions of this Chapter other than the matters specified in section 27.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for-

(a) the appointment, jurisdiction, control and functions of licensing authorities and other prescribed authorities;

(b) the conduct and hearing of appeals that may be preferred under the Chapter, the fees to be paid in respect of such appeals and the refund of such fees:

Provided that no fee so fixed shall exceed twenty-five rupees;

(c) the issue of duplicate licences to replace licences lost, destroyed or I mutilated, the replacement of photographs which has become ‘ obsolete and the fees to be charged therefor;

(d) the badges and uniform to be worn by drivers of transport vehicles and the fees to be paid in respect of badges; ;

(e) the fee payable for the issue of a medical certificate under sub-section (3) of section 8;

(f) the exemption of prescribed persons, or prescribed classes of : persons, from payment of all or any portion of the fees payable I under this Chapter;

(g) the communication of particulars of licences granted by one licensing authority to other licensing authorities;

(h) the duties, functions and conduct of such persons to whom licences to drive transport vehicles are issued;

(i) the exemption of drivers of road-rollers from all or any of the provisions of this Chapter or of the rules made thereunder;

(j) the manner in which the State Register of Driving Licences shall be maintained under section 26;

(k) any other matter which is to be, or may be, prescribed.

Section 29. Necessity for conductor’s licence.

(1) No person shall act as a I conductor of a stage carriage unless he holds an effective conductor’s licence issued to him authorising him to act as such conductor; and no person shall employ or permit any person who is not so licensed to act as a conductor of a stage carriage.

(2) A State Government may prescribe the conditions subject to which subsection (1) shall not apply to a driver of a stage carriage performing the functions of a conductor or to a person employed to act as a conductor for a period not exceeding one month.

Section 30. Grant of conductor’s licence.

(1) Any person who possesses such minimum educational qualification as may be prescribed by the State Government and is not disqualified under sub-section (1) of section 31 and who is not for the time being disqualified for holding or obtaining a conductor’s licence may apply to the licensing authority having jurisdiction in the area in which he ordinarily resides or carries on business for the issue to him of a conductor’s licence.

(2) Every application under sub-section (1) shall be in such form and shall contain such information as may be prescribed.

(3) Every application for a conductor’s licence shall be accompanied by a medical certificate in such form as may be prescribed, signed by a registered medical practitioner and shall also be accompanied by two clear copies of a recent photograph of the applicant.

(4) A conductor’s licence issued under this Chapter shall be in such form and contain such particulars as may be prescribed and shall be effective throughout the State in which it is issued.

(5) The fee for a conductor’s licence and for each renewal thereof shall be one-half of that for a driving licence.

Section 31. Disqualifications for the grant of conductor’s licence.

(1) No person under the age of eighteen years shall hold, or be granted, a conductor’s licence.

(2) The licensing authority may refuse to issue a conductor’s licence-

(a) if the applicant does not possess the minimum educational qualification;

(b) if the medical certificate produced by the applicant discloses that he is physically unfit to act as a conductor; and

(c) if any previous conductor’s licence held by the applicant was revoked.

Section 32. Revocation of a conductor’s licence on grounds of disease or disability.

A conductor’s licence may at any time be revoked by any licensing authority if that authority has reasonable grounds to believe that the holder of the licence is suffering from any disease or disability which is likely to render him permanently unfit to hold such a licence and where the authority revoking a conductor’s licence is not the authority which issued the same, it shall intimate the fact of such revocation to the authority which issued that licence:

Provided that before revoking any licence, the licensing authority shall give the person holding such licence a reasonable opportunity of being heard.

Section 33. Orders refusing etc., conductor’s licences and appeals therefrom.

(1) Where a licensing authority refuses to issue or renew, or revokes any conductor’s licence, it shall do so by an order communicated to the applicant or the holder, as the case may be, giving the reasons in writing for such refusal or revocation.

(2) Any person aggrieved by an order made under sub-section (1) may, within thirty days of the service on him of the order, appeal to the prescribed authority which shall decide the appeal after giving such person and the authority which made the order an opportunity of being heard and the decision of the appellate authority shall be binding on the authority which made the order.

Section 34. Power of licensing authority to disqualify.

(1) If any licensing authority is of opinion that it is necessary to disqualify the holder of a conductor’s licence for holding or obtaining such a licence on account of his previous conduct as a conductor, it may, for reasons to be recorded, make an order disqualifying that person for a specified period, not exceeding one year, for holding or obtaining a conductor’s licence:

Provided that before disqualifying the holder of a licence, the licensing authority shall give the person holding such licence a reasonable opportunity of being heard.

(2) Upon the issue of any such order, the holder of the conductor’s licence shall forthwith surrender the licence to the authority making the order, if the licence has not already been surrendered, and the authority shall keep the licence until the disqualification has expired or has been removed.

(3) Where the authority disqualifying the holder of a conductor’s licence under this section is not the authority which issued the licence, it shall intimate the fact of such disqualification to the authority which issued the same.

(4) Any person aggrieved by an order made under sub-section (1) may, within thirty days of the service on him of the order, appeal to the prescribed authority which shall decide the appeal after giving such person and the authority which made the order an opportunity of being heard and the decision of the appellate authority shall be binding on the authority which made the order.

Section 35. Power of Court to disqualify.

(1) Where any person holding a conductor’s licence is convicted of an offence under this Act, the court by which such person is convicted may, in addition to imposing any other punishment authorised by law, declare the person so convicted to be disqualified for such period as the Court may specify for holding a conductor’s licence.

(2) The Court to which an appeal lies from any conviction of an offence under this Act may set aside or vary any order of disqualification made by the court below, and the court to which appeals ordinarily lie from such Court, may set aside or vary any order of disqualification made by that Court, notwithstanding that no appeal lies against the conviction in connection with which such order was made.

Section 36. Certain provisions of Chapter II to apply to conductor’s licence.

The provisions of sub-section (2) of section 6, sections 14, 15 and 23, sub-section (1) of section 24 and section 25 shall, so far as may be, apply in relation to a conductor’s licence, as they apply in relation to a driving licence.

Section 37. Savings.

If any licence to act as a conductor of a stage carriage (by whatever name called) has been issued in any State and is effective immediately before the commencement of this Act, it shall continue to be effective, notwithstanding such commencement, for the period for which it would have been effective, if this Act had not been passed, and every such licence shall be deemed to be a licence issued under this Chapter as if this Chapter has been in force on the date on which that licence was granted.

Section 38. Power of State Government to make rules.

(1) A State Government may make rules for the purpose of carrying into effect the provisions of this Chapter.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for-

(a) the appointment, jurisdiction, control and functions of licensing authorities and other prescribed authorities under this Chapter;

(b) the conditions subject to which drivers of stage carriages performing the functions of a conductor and persons temporarily employed to act as conductors may be exempted from the provisions of subsection (1) of section 29;

(c) the minimum educational qualifications of conductors; their duties and functions and the conduct of persons to whom conductor’s licences are issued;

(d) the form of application for conductor’s licences or for renewal of such licences and the particulars it may contain;

(e) the form in which conductor’s licences may be issued or renewed and the particulars it may contain;

(f) the issue of duplicate licences to replace licences lost, destroyed or mutilated, the replacement of photographs which have become obsolete and the fees to be charged therefor;

(g) the conduct and hearing of appeals that may be preferred under this Chapter, the fees to be paid in respect of such appeals and the refund of such fees:

Provided that no fee so fixed shall exceed twenty-five rupees;

(h) the badges and uniform to be worn by conductors of stage carriages and the fees to be paid in respect of such badges;

(i) the grant of the certificates referred to in sub-section (3) of section 30 by registered medical practitioners and the form of such certificates;

(j) the conditions subject to which, and the extent to which, a conductor’s licence issued in another State shall be effective in the State;

(k) the communication of particulars of conductor’s licences horn one authority to other authorities; and

(l) any other matter which is to be, or may be, prescribed.

Section 39. Necessity for registration.

No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner:

Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government.

Section 40. Registration, where to be made.

Subject to the provisions of section 42, section 43 and section 60, every owner of a motor vehicle shall cause the vehicle to be registered by a registering authority in whose jurisdiction he has the residence or place of business where the vehicle is normally kept.

Section 41. Registration, how to be made.

(1) An application by or on behalf of the owner of a motor vehicle for registration shall be in such form and shall be accompanied by such documents, particulars and information and shall be made within such period as may be prescribed by the Central Government:

Provided that where a motor vehicle is jointly owned by more persons than one, the application shall be made by one of them on behalf of all the owners and such applicant shall be deemed to be the owner of the motor vehicle for the purposes of this Act.

(2) An application referred to in sub-section (1) shall be accompanied by such fee as may be prescribed by the Central Government.

(3) The registering authority shall issue to the owner of a motor vehicle registered by it a certificate of registration in such form and containing such particulars and information and in such manner as may be prescribed by the Central Government.

(4) In addition to the other particulars required to be included in the certificate of registration, it shall also specify the type of the motor vehicle, being a type as the Central Government may, having regard to the design construction and use of the motor vehicle, by notification in the Official Gazette, specify.

(5) The registering authority shall enter the particulars of the certificate referred to in sub-section (3) in a register to be maintained in such form and manner as may be prescribed by the Central Government.

(6) The registering authority shall assign to the vehicle, for display thereon, a distinguishing mark (in this Act referred to as the registration mark) consisting of one of the groups of such of those letters and followed by such letters and figures as are allotted to the State by the Central Government from time to time by notification in the Official Gazette, and displayed and shown on the motor vehicle in such form and in such manner as may be prescribed by the Central Government.

(7) A certificate of registration issued under sub-section (3), whether before or after the commencement of this Act, in respect of a motor vehicle, other than a transport vehicle, shall, subject to the provisions contained in this Act, be valid only for a period of fifteen years from the date of issue of such certificate and shall be renewable.

(8) An application by or on behalf of the owner of a motor vehicle, other than a transport vehicle, for the renewal of a certificate of registration shall be made within such period and in such form, containing such particulars and information as may be prescribed by the Central Government.

(9) An application referred to in sub-section (8) shall be accompanied by such fee as may be prescribed by the Central Government.

(10) Subject to the provisions of section 56, the registering authority may, on receipt of an application under sub-section (8), renew the certificate of registration for a period of five years and intimate the fact to the original registering authority, if it is not the original registering authority.

(11) If the owner fails to make an application under sub-section (1), or, as the case may be, under sub-section (8) within the period prescribed, the registering authority may, having regard to the circumstances of the case, require the owner to pay, in lieu of any action that may be taken against him under section 177, such amount not exceeding one hundred rupees as may be prescribed under subsection (13):

Provided that action under section 177 shall be taken against the owner where the owner fails to pay the said amount.

(12) Where the owner has paid the amount under sub-section (11), no action shall be taken against him under section 177.

(13) For the purposes of sub-section (11), the State Government may prescribe different amounts having regard to the period of delay on the part of the owner in making an application under sub-section (1) or sub-section (8).

(14) An application for the issue of a duplicate certificate of registration shall be made to the ¹[last registering authority] in such form, containing such particulars and information along with such fee as may be prescribed by the Central Government.

1. Subs. by Act 54 of 1994, sec. 11, for “original registering authority” (w.e.f. 14-11-1994).

STATE AMENDMENT

Rajasthan:

In its application to the State of Rajasthan, in section 41,-

(a) in sub-sections (7) and (8), the expression, “other than a transport vehicle,” shall be omitted;

(b) after sub-section (7) so amended, insert the following proviso, namely:-

“Provided that in the case of transport vehicles, State Government may require the transport vehicles to be re-registered in the manner prescribed, subject to the age limit, if any, prescribed under section 59 of the Act.”; and

(c) in sub-section (10), after the words “for a period of five years” and before the words “and intimate”, the expression “on payment of all taxes, penalties and interest, if any, levied by the State Government” shall be inserted.

[Rajasthan Act 1 of 2002, sec. 2 (w.e.f. 13-3-2002).]

Comment / Related Citation:

Constitution of India, Article 226 – Motor Vehicles Act, 1988, Section 2(28),41(6) – High Security Registration Plates – Notice inviting tenders – Policy decision – First NIT issued in the month of July, 2003 fixing 6.8.2003 as the last date for submission of tender process – The finalization of tender process could not take place because of interim order passed by the Apex Court – Cases decided on 30.11.2004 – In interregnum considerable number of indigenous manufactured obtained the requisite TAC from the approved institutions as per the provisions of the 1988 Act and thereby acquired capacity and ability to manufacturer HSRP – Held that once a particular matter relating to condition in NIT has been finally decided by the High Court, the State Government, which was party to the litigation, ought to have proceeded accordingly – In a case such as the present one, where the circumstances changed in some material respects, departure from the earlier policy cannot be held to be legally flawed, particularly when there is no challenge to the changed police reflected in second NIT on the ground of Wednesbury reasonableness or principle of legitimate expectation or arbitrariness or irrationality.

SHIMNIT UTSCH INDIA PVT. LTD. & ANR. v/s WEST BENGAL TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. & ORS. [(2010) 6 SCC 303 = 2010 AIR(SCW) 3974 = 2010(5) SCALE 617 = (2010) 6 SCR 1110 = JT 2010 (5) SC 237]

&

Motor Vehicles Act, 1988, Section 41(6) – Motor Vehicles Rules, 1989, Rule 50 – High Security Registration Plates Order 2001 -Motor Vehicles – High Security Registration Plates – State and Union Territories directed to take definite decision within a period of six months as to whether there is need for giving effect to the amended Rule 50 and the Scheme of High Security Registration Plates Order and the modalities to followed.

MANINDERJIT SINGH BITTA v/s UNION OF INDIA & ORS. [(2008) 7 SCC 328]

Section 42. Special provision for registration of motor vehicles of diplomatic officers, etc.

(1) Where an application for registration of a motor vehicle is made under sub-section (1) of section 41 by or on behalf of any diplomatic officer or consular officer, then, notwithstanding anything contained in sub-section (3) or sub-section (6) of that section, the registering authority shall register the vehicle in such manner and in accordance with such procedure as may be provided by rules made in this behalf by the Central Government under sub- -section (3) and shall assign to the vehicle for display thereon a special registration mark in accordance with the provisions contained in those rules and shall issue a certificate (hereafter in this section referred to as the certificate of registration) that the vehicle has been registered under this section; and any vehicle so registered shall not, so long as it remains the property of any diplomatic officer or consular officer, require to be registered otherwise under this Act.

(2) If any vehicle registered under this section ceases to be the property of any diplomatic officer or consular officer, the certificate of registration issued under this section shall also cease to be effective, and the provisions of sections 39 and 40 shall thereupon apply.

(3) The Central Government may make rules for the registration of motor vehicles belonging to diplomatic officers and consular officers regarding the procedure to be followed by the registering authority for registering such vehicles, the form in which the certificates of registration of such vehicles are to be issued, the manner in which such certificates of registration are to be sent to the owners of the vehicles and the special registration marks to be assigned to such vehicles.

(4) For the purposes of this section, “diplomatic officer” or “consular officer” means any person who is recognised as such by the Central Government and if any question arises as to whether a person is or is not such an officer, the decision of the Central Government thereon shall be final.

Section 43. Temporary registration.

(1) Notwithstanding anything contained in section 40 the owner of a motor vehicle may apply to any registering authority or other prescribed authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark.

(2) A registration made under this section shall be valid only for a period not exceeding one month, and shall not be renewable:

Provided that where a motor vehicle so registered is a chassis to which a body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted ¹[with a body or any unforeseen circumstances beyond the control of the owner], the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods as the registering authority or other prescribed authority, as the case may be, may allow.

²[(3) In a case where the motor vehicle is held under hire-purchase agreement, lease or hypothecation, the registering authority or other prescribed authority shall issue a temporary certificate of registration of such vehicle, which shall incorporate legibly and prominently the full name and address of the person with whom such agreement has been entered into by the owner.]

1. Subs. by Act 54 of 1994, sec. 12, for “with a body” (w.e.f. 14-11-1994).

2. Ins. by Act 54 of 1994, sec. 12 (w.e.f. 14-11-1994).

Section 44. Production of vehicle at the time of registration.

The registering authority shall before proceeding to register a motor vehicle or renew the certificate of registration in respect of a motor vehicle, other than a transport vehicle, require the person applying for registration of the vehicle or, as the case may be, for renewing the certificate of registration to produce the vehicle either before itself or such authority as the State Government may by order appoint in order that the registering authority may satisfy itself that the particulars contained in the application are true and that the vehicle complies with the requirements of this Act and of the rules made thereunder.

Section 45. Refusal of registration or renewal of the certificate of registration.

The registering authority may, by order, refuse to register any motor vehicle, or renew the certificate of registration in respect of a motor vehicle (other than a transport vehicle), if in either case, the registering authority has reason to believe I that it is a stolen motor vehicle or the vehicle is mechanically defective or fails to comply with the requirements of this Act or of the rules made thereunder, or if the applicant fails to furnish particulars of any previous registration of the vehicle or furnishes inaccurate particulars in the application for registration of the vehicle or, as the case may be, for renewal of the certificate or registration thereof and the registering authority shall furnish the applicant whose vehicle is refused registration, or whose application for renewal of the certificate of registration is refused, a copy of such order, together with the reasons for such refusal.

Section 46. Effectiveness in India of registration.

Subject to the provisions of section 47, a motor vehicle registered in accordance with this Chapter in any State shall not require to be registered elsewhere in India and a certificate of registration issued or in force under this Act in respect of such vehicle shall be effective throughout India.

Section 47. Assignment of new registration mark on removal to another State.

(1) When a motor vehicle registered in one State has been kept in another State, for a period exceeding twelve months, the owner of the vehicle shall, within such period and in such form containing such particulars as may be prescribed by the Central Government, apply to the registering authority, within whose jurisdiction the vehicle then is, for the assignment of a new registration mark and shall present the certificate of registration to that registering authority:

Provided that an application under this sub-section shall be accompanied-

(i) by the no objection certificate obtained under section 48, or

(ii) in a case where no such certificate has been obtained, by-

(a) the receipt obtained under sub-section (2) of section 48; or

(b) the postal acknowledgment received by the owner of the vehicle if he has sent an application in this behalf by registered post acknowledgment due to the registering authority referred to in section 48,

together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted:

Provided further that, in a case where a motor vehicle is held under a hire-purchase, lease or hypothecation agreement, an application under this subsection shall be accompanied by a no objection certificate from the person with whom such agreement has been entered into, and the provisions of section 51, so far as may be, regarding obtaining of such certificate from the person with whom such agreement has been entered into, shall apply.

(2) The registering authority, to which application is made under sub-section (1), shall after making such verification, as it thinks fit, of the returns, if any, received under section 62, assign the vehicle a registration mark as specified in sub-section (6) of section 41 to be displayed and shown thereafter on the vehicle and shall enter the mark upon the certificate of registration before returning it to the applicant and shall, in communication with the registering authority by whom the vehicle was previously registered, arrange for the transfer of the registration of the vehicle from the records of that registering authority to its own records.

(3) Where a motor vehicle is held under a hire-purchase or lease or hypothecation agreement, the registering authority shall, after assigning the vehicle a registration mark under sub-section (2), inform the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into the hire-purchase or lease or hypothecation agreement (by sending to such person a notice by registered post acknowledgment due at the address of such person entered in the certificate of registration the fact of assignment of the said registration mark).

(4) A State Government may make rules under section 65 requiring the owner of a motor vehicle not registered within the State, which is brought into or is for the time being in the State, to furnish to the prescribed authority in the State such information with respect to the motor vehicle and its registration as may be prescribed.

(5) If the owner fails to make an application under sub-section (1) within the period prescribed, the registering authority may, having regard to the circumstances of the case, require the owner to pay, in lieu of any action that may be taken against him under section 177, such amount not exceeding one hundred rupees as may be prescribed under sub-section (7):

Provided that action under section 177 shall be taken against the owner where the owner fails to pay the said amount.

(6) Where the owner has paid the amount under sub-section (5), no action shall be taken against him under section 177.

(7) For the purposes of sub-section (5), the State Government may prescribe different amounts having regard to the period of delay on the part of the owner in making an application under sub-section (1).

Section 48. No objection certificate.

(1) The owner of a motor vehicle when applying for the assignment of a new registration mark under sub-section (1) of section 47, or where the transfer of a motor vehicle is to be effected in a State other than the State of its registration, the transferor of such vehicle where reporting the transfer under sub-section (1) of section 50, shall make an application in such form and in such manner as may be prescribed by the Centra Government to the registering authority by which the vehicle was registered for the issue of a certificate (hereafter in this section referred to as the no objection certificate), to the effect that the registering authority has no objection for assigning a new registration mark to the vehicle or, as the case may be, for entering the particulars of the transfer of ownership in the certificate o registration.

(2) The registering authority shall, on receipt of an application under sub-section (1), issue a receipt in such form as may be prescribed by the Centra Government.

(3) On receipt of an application under sub-section (1), the registering authority may, after making such inquiry and requiring the applicant to comply with such directions as it deems fit and within thirty days of the receipt thereof by order in writing, communicate to the applicant that it has granted or refused to grant the no objection certificate:

Provided that a registering authority shall not refuse to grant the no objection certificate unless it has recorded in writing the reasons for doing so and a copy of the same has been communicated to the applicant.

(4) Where within a period of thirty days referred to in sub-section (3), the registering authority does not refuse to grant the no objection certificate or does not communicate the refusal to the applicant, the registering authority shall be deemed to have granted the no objection certificate.

(5) Before granting of refusing to grant the no objection certificate, the registering authority shall obtain a report in writing from the police that no case relating to the theft of the motor vehicle concerned has been reported or is pending, verify whether all the amounts due to Government including road tax in respect of that motor vehicle have been paid and take into account such other factors as may be prescribed by the Central Government.

¹[(6) The owner of the vehicle shall also inform at the earliest, in writing, the registering authority about the theft of his vehicle together with the name of the police station where the theft report was lodged, and the registering authority shall take into account such report while disposing of any application for no objection certification, registration, transfer of ownership or issue of duplicate registration certificate].

1. Ins. by Act 54 of 1994, sec. 13 (w.e.f. 14-11-1994).

Section 49. Change of residence or place of business.

(1) If the owner of a motor vehicle ceases to reside or have his place of business at the address recorded in the certificate of registration of the vehicle, he shall, within thirty days of any such change of address, intimate in such form accompanied by such documents as may be prescribed by the Central Government, his new address, to the registering authority by which the certificate of registration was issued, or, if the new address is within the jurisdiction of another registering authority, to that other registering authority, and shall at the same time forward the certificate of registration to the registering authority or, as the case may be, to the other registering authority in order that the new address may be entered therein.

(2) If the owner of a motor vehicle fails to intimate his new address to the concerned registering authority within the period specified in sub-section (1), the registering authority may, having regard to the circumstances of the case, require the owner to pay, in lieu of any action that may be taken against him under section 177, such amount not exceeding one hundred rupees as may be prescribed under sub-section (4):

Provided that action under section 177 shall be taken against the owner where he fails to pay the said amount.

(3) Where a person has paid the amount under sub-section (2), no action shall be taken against him under section 177.

(4) For the purposes of sub-section (2), a State Government may prescribe different amounts having regard to the period of delay in intimating his new address.

(5) On receipt of intimation under sub-section (1), the registering authority may, after making such verification as it may think fit, cause the new address to be entered in the certificate of registration.

(6) A registering authority other than the original registering authority making any such entry shall communicate the altered address to the original registering authority.

(7) Nothing in sub-section (1) shall apply where the change of the address recorded in the certificate of registration is due to a temporary absence not intended to exceed six months in duration or where the motor vehicle is neither used nor removed from the address recorded in the certificate of registration.

Section 50. Transfer of ownership.

(1) Where the ownership of any motor vehicle registered under this Chapter is transferred,

(a) the transferor shall,-

(i) in the case of a vehicle registered within the same State, within fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may be prescribed by the Central Government to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee; and

(ii) in the case of a vehicle registered outside the State, within forty-five days of the transfer, forward to the registering authority referred to in sub-clause (i)-

(A) the no objection certificate obtained under section 48; or

(B) in a case where no such certificate has been obtained,-

(I) the receipt obtained under sub-section (2) of section 48; or

(II) the postal acknowledgment received by the transferee if he has sent an application in this behalf by registered post acknowledgment due to the registering authority referred to in section 48,

together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted;

(b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration.

(2) Where-

(a) the person in whose name a motor vehicle stands registered dies, or

(b) a motor vehicle has been purchased or acquired at a public auction conducted by, or on behalf of, Government,

the person succeeding to the possession of the vehicle or, as the case may be, who has purchased or acquired the motor vehicle, shall make an application for the purpose of transferring the ownership of the vehicle in his name, to the registering authority in whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, in such manner, accompanied with such fee, and within such period as may be prescribed by the Central Government.

(3) If the transferor or the transferee fails to report to the registering authority the fact of transfer within the period specified in clause (a) or clause (b) of subsection (1), as the case may be, or if the person who is required to make an application under sub-section (2) (hereafter in this section referred to as the other person) fails to make such application within the period prescribed, the registering authority may, having regard to the circumstances of the case, require the transferor or the transferee, or the other person, as the case may be, to pay, in lieu of any action that may be taken against him under section 177 such amount not exceeding one hundred rupees as may be prescribed under subsection (5):

Provided that action under section 177 shall be taken against the transferor or the transferee or the other person, as the case may be, where he fails to pay the said amount.

(4) Where a person has paid the amount under sub-section (3), no action shall be taken against him under section 177.

(5) For the purposes of sub-section (3), a State Government may prescribe different amounts having regard to the period of delay on the part of the transferor or the transferee in reporting the fact of transfer of ownership of the motor vehicle or of the other person in making the application under sub-section (2).

(6) On receipt of a report under sub-section (1), or an application under subsection (2), the registering authority may cause the transfer of ownership to be entered in the certificate of registration.

(7) A registering authority making any such entry shall communicate the transfer of ownership to the transferor and to the original registering authority, if it is not the original registering authority.

Comment / Related Citation:

Motor Vehicles Act, 1988 – Section 168 and 50 – MACT – Transfer of vehicle – Liability – High Court held that the appellant alone was liable to pay the compensation because the name of the appellant continued in the records of RTO. Held: Where ownership of the vehicle stood transferred, person in actual possession of the vehicle as well as the person in whose name the vehicle stood in RTO records would be liable to the third party who was injured in the accident. However, the person in actual possession would also be liable.

P.P. MOHAMMED v/s K. RAJAPPAN AND OTHERS [(2008) 17 SCC 624]

Section 51. Special provisions regarding motor vehicle subject to hire purchase agreement, etc.

(1) Where an application for registration of a motor vehicle which is held under a hire-purchase, lease or hypothecation agreement (hereafter in this section referred to as the said agreement) is made, the registering authority shall make an entry in the certificate of registration regarding the existence of the said agreement.

(2) Where the ownership of any motor vehicle registered under this Chapter is transferred and the transferee enters into the said agreement with any person, the ¹[last registering authority] shall, on receipt of an application in such form as the Central Government may prescribe from the parties to the said agreement, make an entry as to the existence of the said agreement in the certificate of registration ²fand an intimation in this regard shall be sent to the original registering authority if the last registering authority is not the original registering authority].

(3) Any entry made under sub-section (1) or sub-section (2), may be cancelled by the ¹[last registering authority] on proof of the termination of the said agreement by the parties concerned on an application being made in such form as the Central Government may prescribe ²[and an intimation in this behalf shall be sent to the original registering authority if the last registering authority is not the original registering authority].

(4) No entry regarding the transfer of ownership of any motor vehicle which is held under the said agreement shall be made in the certificate of registration except with the written consent of the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into the said agreement.

(5) Where the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into the said agreement, satisfies the registering authority that he has taken possession of the vehicle ³[from the registered owner] owing to the default of the registered owner under the provisions of the said agreement and that the registered owner refuses to deliver the certificate of registration or has absconded, such authority may, after giving the registered owner an opportunity to make such representation as he may wish to make (by sending to him a notice by registered post acknowledgment due at his address entered in the certificate of registration) and notwithstanding that the certificate of registration is not produced before it, cancel the certificate and issue a fresh certificate of registration in the name of the person with whom the registered owner has entered into the said agreement:

Provided that a fresh certificate of registration shall not be issued in respect of a motor vehicle, unless such person pays the prescribed fee:

Provided further that a fresh certificate of registration issued in respect of a motor vehicle, other than a transport vehicle, shall be valid only for the remaining period for which the certificate cancelled under this sub-section would have been in force.

(6) The registered owner shall, before applying to the appropriate authority, for the renewal of a permit under section 81 or for the issue of duplicate certificate of registration under sub-section (14) of section 41, or for the assignment of a new registration mark ⁴[under section 47, or removal of the vehicle to another State, or at the time of conversion of the vehicle from one class to another, or for issue of no objection certificate under section 48, or for change of residence or place of business under section 49, or for the alteration of the vehicle under section 52, make an application] to the person with whom the registered owner has entered into the said agreement, (such person being hereafter in this section referred to as the financier) for the issue of a no objection certificate (hereafter in this section referred to as the certificate).

Explanation.-For the purposes of this sub-section and sub-sections (8) and (9), “appropriate authority” in relation to any permit, means the authority which is authorised by this Act to renew such permit and, in relation to registration means the authority which is authorised by this Act to issue duplicate certificate of registration or to assign a new registration mark.

(7) Within seven days of the receipt of an application under sub-section (6) the financier may issue, or refuse, for reasons which shall be recorded in writing communicate to the applicant, to issue, the certificate applied for, and where the financier fails to issue the certificate and also fails to communicate the reasons for refusal to issue the certificate to the applicant within the said period of seven days, the certificate applied for shall be deemed to have been issued by the financier.

(8) The registered owner shall, while applying to the appropriate authority for the renewal of any permit under section 81, or for the issue of a duplicate certificate of registration under sub-section (14) of section 41, or while applying for assignment of a new registration mark under section 47, submit with such application the certificate, if any, obtained under sub-section (7) or, where no such certificate has been obtained, the communication received from the financier under that sub-section, or, as the case may be, a declaration that he has not received any communication from the financier within the period of seven days specified in that sub-section.

(9) On receipt of an application for the renewal of any permit or for the issue of duplicate certificate of registration or for assignment of a new registration mark in respect of a vehicle which is held under the said agreement, the appropriate authority may, subject to the other provisions of this Act,-

(a) in a case where the financier has refused to issue the certificate applied for, after giving the applicant an opportunity of being heard, either-

(i) renew or refuse to renew the permit, or

(ii) issue or refuse to issue the duplicate certificate of registration, or

(iii) assign or refuse to assign a new registration mark;

(b) in any other case,-

(i) renew the permit, or

(ii) issue duplicate certificate of registration, or

(iii) assign a new registration mark.

(10) A registering authority making an entry in the certificate of registration regarding-

(a) hire-purchase, lease or hypothecation agreement of a motor vehicle, or

(b) the cancellation under sub-section (3) of an entry, or

(c) recording transfer of ownership of motor vehicle, or

(d) any alteration in a motor vehicle, or

(e) suspension or cancellation of registration of a motor vehicle, or

(f) change of address,

shall communicate ⁵[by registered post acknowledgment due] to the financier that such entry has been made.

⁶[(11) A registering authority registering the new vehicle, or issuing the duplicate certificate of registration or a no objection certificate or a temporary certificate of registration, or issuing or renewing, a fitness certificate or substituting entries relating to another motor vehicle in the permit, shall intimate the financier of such transaction.

(12) The registering authority where it is not the original registering authority, when making entry under sub-section (1) or sub-section (2), or cancelling the said entry under sub-section (3) or issuing the fresh certificate of registration under sub-section (5) shall communicate the same to the original registering authority.]

1. Subs. by Act 54 of 1994, sec. 14, for “original registering authority” (w.e.f. 14-11-1994).

2. Added by Act 54 of 1994. sec. 14 (w.e.f. 14-11-1994).

3. Ins. by Act 54 of 1994, sec. 14 (w.e.f. 14-11-1994).

4. Subs. by Act 54 of 1994, sec. 14, for “under section 47, make an application” (w.e.f. 14-11-1994).

5. Ins. by Act 54 of 1994, sec. 14 (w.e.f. 14-11-1994).

6. Sub., by Act 54 of 1994, sec 14, for sub-section (11) (w.e.f. 14-11-1994).

Section [52. Alteration in motor vehicle.

(1) No owner of a motor vehicle shall so alter the vehicle that the particulars contained in the certificate of registration are at variance with those originally specified by the manufacturer:

Provided that where the owner of a motor vehicle makes modification of the engine, or any part thereof, of a vehicle for facilitating its operation by different type of fuel or source of energy including battery, compressed natural gas, solar power, liquid petroleum gas or any other fuel or source of energy, by fitment of a conversion kit, such modification shall be carried out subject to such conditions as may be prescribed:

Provided further that the Central Government may prescribe specifications, conditions for approval, retrofitment and other related matters for such conversion kits:

Provided also that the Central Government may grant exemption for alteration of vehicles in a manner other than specified above, for any specific purpose.

(2) Notwithstanding anything contained in sub-section (1), a State Government may, by notification in the Official Gazette, authorise, subject to such conditions as may be specified in the notification, and permit any person owning not less than ten transport vehicles to alter any vehicle owned by him so as to replace the engine thereof with engine of the same make and type, without the approval of registering authority.

(3) Where any alteration has been made in motor vehicle without the approval of registering authority or by reason of replacement of its engine without such approval under sub-section (2), the owner of the vehicle shall,, within fourteen days of the making of the alteration, report the alteration to the registering authority within whose jurisdiction he resides and shall forward the certificate of registration to that authority together with the prescribed fee in order that particulars of registration may be entered therein.

(4) A registering authority other than the original registering authority making any such entry shall communicate the details of the entry to the original registering authority.

(5) Subject to the provisions made under sub-sections (1), (2), (3) and (4), no person holding a vehicle under a hire-purchase agreement shall make any alteration to the vehicle except with the written consent of the registered owner.

Explanation.-For the purposes of this section, “alteration” means a change in the structure of a vehicle which results in a change in its basic feature.].

1. Subs. by Act 27 of 2000, sec. 2, for section 52 (w.e.f. 11-8-2000).

Comment / Related Citation:

Constitution of India, Article 226 – Motor Vehicles Act, 1988, Sections 39 and 52 – Mobile hoarding vans – Registered as Goods carrying vehicle, or display vehicles – After their modification and transformation necessitates grant of fresh certificates of Registration – Authorities under Motor Vehicles Act to decide such issue and not the Court.

SUPRI ADVERTISING & ENTERTAINMENT PVT. LTD. v/s DR. ANAHITA PANDOLE & ORS. [(2008) 10 SCC 246 = JT 2008 (10) SC 655 = 2008 AIR(SCW) 6168]

Section 53. Suspension of registration.

(1) If any registering authority or other prescribed authority has reason to believe that any motor vehicle within its jurisdiction-

(a) is in such a condition that its use in a public place would constitute a danger to the public, or that it fails to comply with the requirements of this Act or of the rules made thereunder, or

(b) has been, or is being, used for hire or reward without a valid permit for being used as such,

the authority may, after giving the owner an opportunity of making any representation he may wish to make (by sending to the owner a notice by registered post acknowledgment due at his address entered in the certificate of registration), for reasons to be recorded in writing, suspend the certificate of registration of the vehicle-

(i) in any case falling under clause (a), until the defects are rectified to its satisfaction; and

(ii) in any case falling under clause (b), for a period not exceeding four months.

(2) An authority other than a registering authority shall when making a suspension order under sub-section (1), intimate in writing the fact of such suspension and the reasons therefor to the registering authority within whose jurisdiction the vehicle is at the time of the suspension.

(3) Where the registration of a motor vehicle has been suspended under subsection (1) for a continuous period of not less than one month, the registering authority, within whose jurisdiction the vehicle was when the registration was suspended, shall, if it is not the original registering authority, inform that authority of the suspension.

(4) The owner of a motor vehicle shall, on the demand of a registering authority or other prescribed authority which has suspended the certificate of registration of the vehicle under this section, surrender the certificate of registration.

(5) A certificate of registration surrendered under sub-section (4) shall be returned to the owner when the order suspending registration has been rescinded and not before.

Section 54. Cancellation of registration suspended under section 53.

When the suspension of registration of a vehicle under section 53 has continued without interruption for a period of not less than six months, the registering authority within whose jurisdiction the vehicle was when the registration was suspended, may, if it is the original registering authority, cancel the registration, and if it is not the original registering authority, shall forward the certificate of registration to that authority which may cancel the registration.

Section 55. Cancellation of registration.

(1) If a motor vehicle has been destroyed or has been rendered permanently incapable of use, the owner shall, within fourteen days or as soon as may be, report the fact to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward to the authority the certificate of registration of the vehicle.

(2) The registering authority shall, if it is the original registering authority, cancel the registration and the certificate of registration, or, if it is not, shall forward the report and the certificate of registration to the original registering authority and that authority shall cancel the registration.

(3) Any registering authority may order the examination of a motor vehicle within its jurisdiction by such authority as the State Government may by order appoint and, if upon such examination and after giving the owner an opportunity to make any representation he may wish to make (by sending to the owner a notice by registered post acknowledgment due at his address entered in the certificate of registration), it is satisfied that the vehicle is in such a condition that it is incapable of being used or its use in a public place would constitute a danger to the public and that it is beyond reasonable repair, may cancel the registration.

(4) If a registering authority is satisfied that a motor vehicle has been permanently removed out of India, the registering authority shall cancel the registration.

(5) If a registering authority is satisfied that the registration of a motor vehicle has been obtained on the basis of documents which were, or by representation of facts which was, false in any material particular, or the engine number or the chassis number embossed thereon are different from such number entered in the certificate of registration, the registering authority shall after giving the owner an opportunity to make such representation as he may wish to make (by sending to the owner a notice by registered post acknowledgment due at his address entered in the certificate of registration), and for reasons to be recorded in writing, cancel the registration.

(6) A registering authority cancelling the registration of a motor vehicle under section 54 or under this section shall communicate such fact in writing to the owner of the vehicle, and the owner of the vehicle shall forthwith surrender to that authority the certificate of registration of the vehicle.

(7) A registering authority making an order of cancellation under section 54 or under this section shall, if it is the original registering authority, cancel the certificate of registration and the entry relating to the vehicle in its records, and, if it is not the original registering authority, forward the certificate of registration to that authority, and that authority shall cancel the certificate of registration and the entry relating to the motor vehicle in its records.

(8) The expression “original registering authority” in this section and in sections 41, 49, 50, 52, 53 and 54 means the registering authority in whose records the registration of the vehicle is recorded.

(9) In this section “certificate of registration” includes a certificate of registration renewed under the provisions of this Act.

Section 56. Certificate of fitness of transport vehicles.

(1) Subject to the provisions of sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorized testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made thereunder:

Provided that where the prescribed authority or the “authorized testing station” refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal.

(2) The “authorized testing station” referred to in sub-section (1) means a vehicle service station or public or private garage which the State Government, having regard to the experience, training and ability of the operator of such station or garage and the testing equipment and the testing personnel therein, may specify in accordance with the rules made by the Central Government for regulation and control of such stations or garages.

(3) Subject to the provisions of sub-section (4), certificate of fitness shall remain effective for such period as may be prescribed by the Central Government having regard to the objects of this Act.

(4) The prescribed authority may for reasons to be recorded in writing cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of this Act and the rules made thereunder; and on such cancellation the certificate of registration of the vehicle and any permit granted in respect of the vehicle under Chapter V shall be deemed to be suspended until a new certificate of fitness has been obtained:

¹[Provided that no such cancellation shall be made by the prescribed authority unless such prescribed authority holds such technical qualification as may be prescribed or where the prescribed authority does not hold such technical qualification on the basis of the report of an officer having such qualifications.]

(5) A certificate of fitness issued under this Act shall, while it remains effective be valid throughout India.

1. Ins. by Act 54 of 1994, sec. 16 (w.e.f. 14-11-1994).

Section 57. Appeals.

¹[(1) Any person aggrieved by an order of the registering I authority under section 41, 42, 43, 45, 47, 48, 49, 50, 52, 53, 55 or 56 may, within thirty days of the date on which he has received notice of such order, appeal against the order to the prescribed authority.]

(2) The appellate authority shall give notice of the appeal to the original authority and after giving an opportunity to the original authority and the appellant to be heard in the appeal pass such order as it thinks fit.

1. Subs, by Act 54 of 1994, sec. 17, for sub-section (1) (w.e.f. 14-11-1994).

Section 58. Special provisions in regard to transport vehicles.

(1) The Central Government may, having regard to the number, nature and size of the tyres attached to the wheels of a transport vehicle (other than a motor cab), and its make and model and other relevant considerations, by notification in the Official Gazette, specify, in relation to each make and model of a transport vehicle, the ¹[maximum gross vehicle weight] of such vehicle and the maximum safe. axle weight of each axle of such vehicle.

(2) A registering authority, when registering a transport vehicle, other than a motor cab, shall enter in the record of registration and shall also enter in the certificate of registration of the vehicle the following particulars, namely:-

(a) the unladen weight of the vehicle;

(b) the number, nature and size of the tyres attached to each wheel;

(c) the gross vehicle weight of the vehicle and the registered axle weights pertaining to the several axles thereof; and

(d) if the vehicle is used or adapted to be used for the carriage of passengers solely or in addition to goods, the number of passengers for whom accommodation is provided,

and the owner of the vehicle shall have the same particulars exhibited in the prescribed manner on the vehicle.

(3) There shall not be entered in the certificate of registration of any such vehicle any gross vehicle weight or a registered axle weight of any of the axles different from that specified in the notification under sub-section (1) in relation to the make and model of such vehicle and to the number, nature and size of the tyres attached to its wheels:

Provided that where it appears to the Central Government that heavier weights than those specified in the notification under sub-section (1) may be permitted in a particular locality for vehicles of a particular type, the Central Government may, by order in the Official Gazette direct that the provisions of this sub-section shall apply with such modifications as may be specified in the order.

²[***]

(5) In order that the gross vehicle weight entered in the certificate of registration of a vehicle may be revised in accordance with the provisions of subsection (3), the registering authority may require the owner of transport vehicle in accordance with such procedure as may be prescribed to produce the certificate of registration within such time as may be specified by the registering authority.

1. Subs. by act 54 of 1994, sec. 18. for “maximum safe laden weight” (w.e.f. 14-11-1994).

2. Sub-section (4) omitted by Act 27 of 2000, sec. 3 (w.e.f. 11-8-2000).

Section 59. Power to fix the age limit of motor vehicle.

(1) The Central Government may, having regard to the public safety, convenience and objects of this Act, by notification in the Official Gazette, specify the life of a motor vehicle reckoned from the date of its manufacture, after the expiry of which the motor vehicle shall not be deemed to comply with the requirements of this Act and the rules made thereunder:

Provided that the Central Government may specify different ages for different classes or different types of motor vehicles.

(2) Notwithstanding anything contained in sub-section (1), the Central Government may, having regard to the purpose of a motor vehicle, such as, display or use for the purposes of a demonstration in any exhibition, use for the purposes of technical research or taking part in a vintage car rally, by notification in the Official Gazette, exempt, by a general or special order, subject to such conditions as may be specified in such notification, any class or type of motor vehicle from the operation of sub-section (1) for the purpose to be stated in the notification.

(3) Notwithstanding anything contained in section 56, no prescribed authority or authorized testing station shall grant a certificate of fitness to a motor vehicle in contravention of the provisions of any notification issued under sub-section (1).

Section 60. Registration of vehicles belonging to the Central Government.

(1) Such authority as the Central Government may, by notification in the Official Gazette, specify, may register any motor vehicle which is the property or for the time being under the exclusive control of the Central Government and is used for Government purposes relating to the defence of the country and unconnected with any commercial enterprise and any vehicle so registered shall not, so long as it remains the property or under the exclusive control of the Central Government, require to be registered otherwise under this Act.

(2) The authority registering a vehicle under sub-section (1) shall assign a registration mark in accordance with the provisions contained in the rules made in this behalf by the Central Government and shall issue a certificate in respect of that vehicle to the effect that such vehicle complies for the time being with all the requirements of this Act and the rules made thereunder and that the vehicle has been registered under this section.

(3) A vehicle registered under this section shall carry the certificate issued under sub-section (2).

(4) If a vehicle registered under this section ceases to be the property or under the exclusive control of the Central Government, the provisions of sections 39 and 40 shall thereupon apply.

(5) The authority registering a vehicle under sub-section (1) shall furnish to any State Government all such information regarding the general nature, overall dimensions and axle weights of the vehicle as the State Government may at any time require.

Section 61. Application of Chapter to trailers.

(1) The provisions of this Chapter shall apply to the registration of trailers as they apply to the registration of any other motor vehicle.

(2) The registration mark assigned to a trailer shall be displayed in such manner on the side of the drawing vehicle as may be prescribed by the Central Government.

(3) No person shall drive a motor vehicle to which a trailer is or trailers are attached unless the registration mark of the motor vehicle so driven is displayed on the trailer or on the last trailer in the train, as the case may be, in such manner as may be prescribed by the Central Government.

Section 62. Information regarding stolen and recovered motor vehicles to be furnished by the police to the State Transport Authority.

The State Government may, if it thinks necessary or expedient so to do in the public interest, direct the submission by the Inspector General of Police (by whatever designation called) and such other police officers as the State Government may specify in this behalf, of such returns containing the information regarding vehicles which have been stolen and stolen vehicles which have been recovered of which the police are aware, to the State Transport Authority, and may prescribe the form in which and the period within which such returns shall be made.

Section 63. Maintenance of State Registers of Motor Vehicles.

(1) Each State Government shall maintain in such form as may be prescribed by the Central Government a register to be known as the State Register of Motor Vehicles, in respect of the motor vehicles in that State, containing the following particulars, namely:-

(a) registration numbers;

(b) years of manufacture;

(c) classes and types;

(d) names and addresses of registered owners; and

(e) such other particulars as may be prescribed by the Central Government.

(2) Each State Government shall supply to the Central Government ¹[if so desired by it] a printed copy of the State Register of Motor Vehicles and shall also inform the Central Government without delay of all additions to and other amendments in such register made from time to time.

(3) The State Register of Motor Vehicles shall be maintained in such manner as may be prescribed by the State Government.

1. Ins. by Act 54 of 1994, sec. 19 (w.e.f. 14-11-1994).

Section 64. Power of Central Government to make rules.

The Central Government may make rules to provide for all or any of the following matters, namely:-

(a) the period within which and the form in which an application shall be made and the documents, particulars and information it shall accompany under sub-section (1) of section 41;

(b) the form in which the certificate of registration shall be made and the particulars and information it shall contain and the manner in which it shall be issued under sub-section (3) of section 41;

(c) the form and manner in which the particulars of the certificate of registration shall be entered in the records of the registering authority under sub-section (5) of section 41;

(d) the manner in which and the form in which the registration mark, the letters and figures and other particulars referred to in sub-section (6) of section 41 shall be displayed and shown;

(e) the period within which and the form in which the application shall be made and the particulars and information it shall contain under sub-section (8) of section 41;

(f) the form in which the application referred to in sub-section (14) of section 41 shall be made, the particulars and information it shall contain and the fee to be charged;

(g) the form in which and the period within which the application referred to in sub-section (1) of section 47 shall be made and the particulars it shall contain;

(h) the form in which and the manner in which the application for “No Objection Certificate” shall be made under sub-section (1) of section 48 and the form of receipt to be issued under sub-section (2) of section 48;

(i) the matters that are to be complied with by an applicant before no objection certificate may be issued under section 48;

(j) the form in which the intimation of change of address shall be made under sub-section (1) of section 49 and the documents to be submitted along with the application;

(k) the form in which and the manner in which the intimation of transfer of ownership shall be made under sub-section (1) of section 50 or under sub-section (2) of section 50 and the document to be submitted along with the application;

(l) the form in which the application under sub-section (2) or subsection (3) of section 51 shall be made;

(m) the form in which the certificate of fitness shall be issued under subsection (1) of section 56 and the particulars and information it shall contain;

(n) the period for which the certificate of fitness granted or renewed under section 56 shall be effective;

(o) the fees to be charged for the issue or renewal or alteration of certificates of registration, for making an entry regarding transfer of ownership on a certificate of registration, for making or cancelling an endorsement in respect of agreement of hire-purchase or lease or hypothecation on a certificate of registration, for certificates of fitness for registration marks, and for the examination or inspection of motor vehicles, and the refund of such fees,

(p) any other matter which is to be, or may be, prescribed by the Central Government.

Section 65. Power of State Government to make rules

(1) A State Government may make rules for the purpose of carrying into effect the provisions of this Chapter other than the matters specified in section 64.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for-

(a) the conduct and hearing of appeals that may be preferred under this Chapter (the fees to be paid in respect of such appeals and the refund of such fees);

(b) the appointment, functions and jurisdiction of registering and other prescribed authorities;

(c) the exemption of road-rollers, graders and other vehicles designed and used solely for the construction, repair and cleaning of roads from all or any of the provisions of this Chapter and the rules made thereunder and the conditions governing such exemption;

(d) the issue or renewal of certificates of registration and fitness and duplicates of such certificates to replace the certificates lost, destroyed or mutilated;

(e) the production of certificates of registration before the registering authority for the revision of entries therein of particulars relating the gross vehicle weight;

(f) the temporary registration of motor vehicles and the issue temporary certificate of registration and marks;

(g) the manner in which the particulars referred to in sub-section (2) section 58 and other prescribed particulars shall be exhibited;

(h) the exemption of prescribed persons or prescribed classes of persons from payment of all or any portion of the fees payable under this Chapter;

(i) the forms, other than those prescribed by the Central Government, to be used for the purpose of this Chapter;

(j) the communication between registering authorities of particulars of certificates of registration and by owners of vehicles registered outside the State of particulars of such vehicles and of their registration;

(k) the amount or amounts under sub-section (13) of section 41 or sub-section (7) of section 47 or sub-section (4) of section 49 or sub-section (5) of section 50;

(l) the extension of the validity of certificates of fitness pending consideration of applications for their renewal;

(m) the exemption from the provisions of this Chapter and the conditions and fees for exemption, of motor vehicles in the possession of dealers;

(n) the form in which and the period within which the return under section 62 shall be sent;

(o) the manner in which the State Register of Motor Vehicles shall be maintained under section 63;

(p) any other matter which is to be or may be prescribed.

Section 66. Necessity for permits.

(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used:

Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contact carriage:

Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not:

Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.

(2) The holder of a goods carriage permit may use the vehicle, for the drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed:

¹[Provided that the holder of a permit of any articulated vehicle may use the prime-mover of that articulated vehicle for any other semi-trailor.]

(3) The provisions of sub-section (1) shall not apply-

(a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise;

(b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleaning, road watering or conservancy purposes;

(c) to any transport vehicle used solely for police, fire brigade or ambulance purposes;

(d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses;

(e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety;

(f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf;

(g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf;

²[***]

(i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms;

(j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods;

(k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle;

³[***]

(m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances, is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination;

(n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify;

(o) to any transport vehicle which is subject to a hire-purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or

(p) to any transport vehicle while proceeding empty to any place for purpose of repair.

(4) Subject to the provisions of sub-section (3), sub-section (1) shall, if the State Government by rule made under section 96 so prescribes, apply to any motor vehicle adapted to carry more than nine persons excluding the driver.

1. Added by Act 54 of 1994, sec. 20 (w.e.f. 14-11-1994).

2. Clause (h) omitted by Act 27 of 2000, sec. 4 (w.e.f. 11-8-2000).

3. Clause (l) subs, by Act 54 of 1994, sec. 20 (w.e.f. 14-11-1994) and omitted by Act 39 of 2001, sec. 2 (w.e.f. 27-9-2001).

Comment / Related Citation:

Motor Vehicles Act, 1988, Section 66(3) – MACT – Compensation – Owner-cum-driver remained ex parte – Once it was established that the vehicle was comprehensively insured with the insurer to cover the passenger risk, the burden to prove that it was not liable in spite of such a policy, shifted to the insurer – The claimants are neither expected to prove that the vehicle had a valid permit, nor prove that the owner of the vehicle did not commit breach of any of the terms of the policy – It was for the insurer who denies its liability under the policy, to establish that in spite of the comprehensive insurance policy issued by it, it is not liable on account of the requirement of the policy not being fulfilled – The High Court committed an error in expecting the claimants to prove that the vehicle possessed a valid permit – There was no justification for the High Court to interfere with the judgment and awards of the Tribunal in the absence of relevant evidence – Impugned order of the High Court set aside and judgment and awards of the Tribunal restored.

KAMALA MANGALAL VAYANI & ORS. v/s M/S UNITED INDIA INSURANCE CO. LTD. & ORS. [2010(3) SCALE 99 = 2010 AIR(SCW) 6604 = (2010) 12 SCC 488]

Section 67. Power to State Government to control road transport.

(1) A State Government, having regard to-

(a) the advantages offered to the public, trade and industry by the development of motor transport,

(b) the desirability of co-ordinating road and rail transport,

(c) the desirability of preventing the deterioration of the road system and

(d) the desirability of preventing uneconomic competition among holders of permits.

may, from time to time, by notification in the Official Gazette, issue directions both to the State Transport Authority and Regional Transport Authority-

(i) regarding the fixing of fares and freights (including the maximum and minimum in respect thereof) for stage carriages, contract carriages and goods carriages:

¹[***]

(ii) regarding the prohibition or restriction, subject to such conditions as may be specified in the directions, of the conveying of long distance goods traffic generally, or of specified classes of goods by goods carriages;

(iii) regarding any other matter which may appear to the State Government necessary or expedient for giving effect to any agreement entered into with the Central Government or any other State Government or the Government of any other country relating to the regulation of motor transport generally, and in particular to its coordination with other means of transport and the conveying of long distance goods traffic:

Provided that no such notification in respect of the matter: referred to in clause (ii) or clause (iii) shall be issued unless a draft of the proposed directions is published in the Official Gazette specifying therein a date being not less than one month after such publication, on or after which the draft will be taken into consideration and any objection or suggestion which may be received has, in consultation with the State Transport Authority, been considered after giving the representatives of the interests affected an opportunity of being heard.

(2) Any direction under sub-section (1) regarding the fixing of fares and freights for stage carriages, contract carriages and goods carriages may provide that such fares or freights shall be inclusive of the tax payable by the passengers or the consignors of the goods, as the case may be, to the operators of the stage carriages, contract carriages or goods carriages under any law for the time being in force relating to tax on passengers and goods.

1. Proviso ins. by Act 54 of 1994, sec. 21 (w.e.f. 14-11-1994) and omitted by Act 39 of 2001 sec. 3 (w.e.f. 27-9-2001).

Comment / Related Citation:

Motor Vehicles Act, 1988 – Section. 67(1) & (2) – Circular issued under Section. 67(1) besides fixing rates of fares of stage carriages and contract carriages, prohibiting recovery of tax from passengers – Validity – Held, valid by virtue of S. 67(2) – Non-mention of S. 67(2) in the circular, held, inconsequential – Statute Law – Statutory Power – Exercise of, without reference to the correct source thereof – Validity – Administrative Law – Ultra vires – Defences to the plea of ultra vires -

JAI PRAKASH AND OTHERS v/s STATE OF U.P. AND OTHERS [(2004) 13 SCC 390]

Section 68. Transport Authorities.

(1) The State Government shall by notification in the Official Gazette, constitute for the State a State Transport Authority to exercise and discharge the powers and functions specified in sub-section (3), and shall in like manner constitute Regional Transport Authorities to exercise and discharge throughout such areas (in this Chapter referred to as regions) as may be specified in the notification in respect of each Regional Transport Authority; the powers and functions conferred by or under this Chapter on such Authorities:

Provided that in the Union Territories, the Administrator may abstain from constituting any Regional Transport Authority.

(2) A State Transport Authority or a Regional Transport Authority shall consist of a Chairman who has had judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law and in the case of a State Transport Authority, such other persons (whether officials or not), not being more than four and, in the case of a Regional Transport Authority, such other persons (whether officials or not), not being more than two, as the State Government may think fit to appoint; but no person who has any financial interest whether as proprietor, employee or otherwise in any transport undertaking shall be appointed, or continue to be, a member of a State or Regional Transport Authority, and, if any person being a member of a any such Authority acquires a financial interest in any transport undertaking, he shall within four weeks of so doing, give notice in writing to the State Government of the acquisition of such interest and shall vacate office:

Provided that nothing in this sub-section shall prevent any of the members of the State Transport Authority or a Regional Transport Authority, as the case may be, to preside over a meeting of such Authority during the absence of the Chairman, notwithstanding that such member does not possess judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law:

Provided further that the State Government may,-

(i) where it considers necessary or expedient so to do, constitute the State Transport Authority or a Regional Transport Authority for any region so as to consist of only one member who shall be an official with judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law;

(ii) by rules made in this behalf, provide for the transaction of business of such authorities in the absence of the Chairman of any other member and specify the circumstances under which, and the manner in which, such business could be so transacted:

Provided also that nothing in this sub-section shall be construed as debarring an official (other than an official connected directly with the management or operation of a transport undertaking) from being appointed or continuing as a member of any such authority merely by reason of the fact that the Government employing the official has, or acquires, any financial interest in a transport undertaking.

(3) The State Transport Authority and every Regional Transport Authority shall give effect to any directions issued under section 67 and the State Transport Authority shall, subject to such directions and save as otherwise provided by or under this Act, exercise and discharge throughout the State the following power and functions, namely:-

(a) to coordinate and regulate the activities and policies of the Regional Transport Authorities, if any, of the State;

(b) to perform the duties of a Regional Transport Authority where there is no such Authority and, if it thinks fit or if so required by a Regional Transport Authority, to perform those duties in respect of any route common to two or more regions;

(c) to settle all disputes and decide all matters on which differences of

opinion arise between Regional Transport Authorities; and

¹[(ca) Government to formulate routes for plying stage carriages; and]

(d) to discharge such other functions as may be prescribed.

(4) For the purpose of exercising and discharging the powers and functions specified in sub-section (3), a State Transport Authority may, subject to such conditions as may be prescribed, issue directions to any Regional Transport Authority, and the Regional Transport Authority shall, in the discharge of its functions under this Act, give effect to and be guided by such directions.

(5) The State Transport Authority and any Regional Transport Authority, if authorised in this behalf by rules made under section 96, may delegate such of its powers and functions to such authority or person subject to such restrictions, limitations and conditions as may be prescribed by the said rules.

1. Ins. by Act 54 of 1994, sec. 22 (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988, Section 68C – Motor Vehicles Act, 1988, Sections 100(3),(4), 103(2) and 105 – Motor Vehicles – Scheme of nationalization of routes with exclusive right of operation to the appellate corporation totally excluding all private operators from the said route proposed under Section 68C of 1939 Act – Objections preferred by the private operators against the said proposal when Act 1988 repealing 1939 Act came into force – Issue settled by the Apex Court that Scheme had not lapsed and the same was required to be finalized – Route permits renewed during the pendency of disposal of objections of the private operator subject to decision of writ petition filed by appellant in the High Court – The writ petition of the appellant allowed by the High Court and and it was held that private operator entitled to compensation in terms of the provisions of the 1988 Act – Notification by State Government on 23.8.2008 allowing private operators to operate on the notified routes challenged by the U.P. Roadways Karamchari Union in which authorities restrained from issuing permits to private operators – Writ petition filed by the private operators seeking direction to the Authority to allow them route permit allowed by the High Court – Directions by the High Court liable to be set aside – This will not prevent the said respondents from claiming compensation u/s 105 of the 1988 Act.

U.P. STATE ROAD TRANSPORT CORP. v/s MOHD. GHILMAN SHARIF & OTHERS [(2009) 10 SCR 1149 = 2009(9) SCALE 685 = JT 2009 (9) SC 665 = (2009) 16 SCC 86]

&

Motor Vehicles Act, 1988, Sections 166, 68 – Negligence – Contributory negligence – Definition of negligence – In common parlance `negligence’ is categorised as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances.”

MUNICIPAL CORPORATION OF GREATER BOMBAY v/s LAXMAN IYER AND ANOTHER [AIR 2003 SC 4182 = (2003) 8 SCC 731 = (2003) 9 Scale 2 = 2003 (Supp4) SCR 984 = JT 2003 (8) SC 108]

Section 69. General provision as to applications for permits.

(1) Every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles:

Provided that if it is proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application shall be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles:

Provided further that if it is proposed to use the vehicle or vehicles in two or more regions lying in different States, the application shall be made to the Regional Transport Authority of the region in which the applicant resides or ha his principal place of business.

(2) Notwithstanding anything contained in sub-section (1), the Stat Government may, by notification in the Official Gazette, direct that in the case c any vehicle or vehicles proposed to be used in two or more regions lying in different States, the application under that sub-section shall be made to the Stat Transport Authority of the region in which the applicant resides or has hi principal place of business.

Section 70. Application for stage carriage permit.

(1) An application for a permit in respect of a stage carriage (in this Chapter referred to as a stage carriage permit) or as a reserve stage carriage shall, as far as may be, contain the following particulars, namely:-

(a) the route or routes or the area or areas to which the application relates;

(b) the type and seating capacity of each such vehicle;

(c) the minimum and maximum number of daily trips proposed to bi provided and the time-table of the normal trips.

Explanation.-For the purposes of this section, section 72, section 80 and section 102, “trip” means a single journey from one point to another, and every return journey shall be deemed to be a separate trip;

(d) the number of vehicles intended to be kept in reserve to maintain the service and to provide for special occasions;

(e) the arrangements intended to be made for the housing, maintenance and repair of the vehicles, for the comfort and convenience of passengers and for the storage and safe custody of luggage;

(f) such other matters as may be prescribed.

(2) An application referred to in sub-section (1) shall be accompanied by such documents as may be prescribed.

Section 71. Procedure of Regional Transport Authority in considering application for stage carriage permit.

(1) A Regional Transport Authority shall, while considering an application for a stage carriage permit, have regard to the objects of this Act.

¹[***]

(2) A Regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time-table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened:

Provided that before such refusal an opportunity shall be given to the applicant to amend the time-table so as to conform to the said provisions.

(3)(a) The State Government shall, if so directed by the Central Government having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of stage carriage; generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less that five lakhs.

(b) Where the number of stage carriages are fixed under clause (a), the Government of the State shall reserve in the State certain percentage of stage carriage permits for the scheduled castes and the scheduled tribes in the same ratio as in the case of appointments made by direct recruitment to public services in the State.

(c) Where the number of stage carriages are fixed under clause (a), the Regional Transport Authority shall reserve such number of permits for the scheduled castes and the scheduled tribes as may be fixed by the State Government under sub-clause (b).

(d) After reserving such number of permits as is referred to in clause (c), the Regional Transport Authority shall in considering an application have regard tc the following matters, namely:-

(i) financial stability of the applicant;

(ii) satisfactory performance as a stage carriage operator including payment of tax if the applicant is or has been an operator of stage carriage service; and

(iii) such other matters as may be prescribed by the State Government:

Provided that, other conditions being equal, preference shall be given to applications for permits from-

(i) State transport undertakings;

(ii) co-operative societies registered or deemed to have been registered under any enactment for the time being in force; ²[***]

(iii) ex-servicemen; ³[or]

³[(iv) any other class or category of persons, as the State Government may, for reasons to be recorded in writing, consider necessary.]

⁴[***]

Explanation.-For the purposes of this section “company” means any body corporate, and includes a firm or other association of individuals; and “director”, in relation to a firm, means a partner in the firm.

1. Proviso omitted by Act 54 of 1994, sec. 23 (w.e.f. 14-11-1994).

2. Word “or” omitted by Act 54 of 1994, sec. 23 (w.e.f. 14-11-1994).

3. Ins. by Act 54 of 1994, sec. 23 (w.e.f. 14-11-1994).

4. Sub-sections (4) and (5) omitted by Act 54 of 1994, sec. 23 (w.e.f. 14-11-1994).

Section 72. Grant of stage carriage permit.

(1) Subject to the provisions of section 71, a Regional Transport Authority may, on an application made to it under section 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:

Provided that no such permit shall be granted in respect of any route or area not specified in the application.

(2) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rule that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-

(i) that the vehicles shall be used only in a specified area, or on a specified route or routes;

(ii) that the operation of the stage carriage shall be commenced with effect from a specified date;

(iii) the minimum and maximum number of daily trips to be provided in relation to any route or area generally or on specified days and occasions;

(iv) that copies of the time-table of the stage carriage approved by the Regional Transport Authority shall be exhibited on the vehicles and at specified stands and halts on the route or within the area;

(v) that the stage carriage shall be operated within such margins of deviation from the approved time-table as the Regional Transport Authority may from time to time specify;

(vi) that within municipal limits and such other areas and places as may be prescribed, passengers or goods shall not be taken up or set down except at specified points;

(vii) the maximum number of passengers and the maximum weight of luggage that may be carried on the stage carriage, either generally or on specified occasions or at specified times and seasons;

(viii) the weight and nature of passengers’ luggage that shall be carried free of charge, the total weight of luggage that may be carried in relation to each passenger, and the arrangements that shall be made for the carriage of luggage without causing inconvenience to passengers;

(ix) the rate of charge that may be levied for passengers’ luggage in excess of the free allowance;

(x) that vehicles of a specified type fitted with body conforming to approved specifications shall be used:

Provided that the attachment of this condition to a permit shall not prevent the continued use, for a period of two years from the date of publication of the approved specifications, of any vehicle operating on that date;

(xi) that specified standards of comfort and cleanliness shall be maintained in the vehicles;

(xii) the conditions subject to which goods may be carried in the stage carriage in addition to or to the exclusion of passengers;

(xiii) that fares shall be charged is accordance with the approved fare table;

(xiv) that a copy of or extract from the fare table approved by the Regional Transport Authority and particulars of any special fares or rates of fares so approved for particular occasions shall be exhibited on the stage carriage and at specified stands and halts;

(xv) that tickets bearing specified particulars shall be issued to passengers and shall show the fares actually charged and that records of tickets issued shall be kept in a specified manner;

(xvi) that mails shall be carried on the vehicle subject to such conditions (including conditions as to the time in which mails are to be carried and the charges which may be levied) as may be specified;

(xvii) the vehicles to be kept as reserve by the holder of the permit to maintain the operation and to provide for special occasions;

(xviii) the conditions subject to which vehicle may be used as a contract carriage;

(xix) that specified arrangements shall be made for the housing, maintenance and repair of vehicle;

(xx) that any specified bus station or shelter maintained by Government or a local authority shall be used and that any specified rent or fee shall be paid for such use;

(xxi) that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority;

(xxii) that the Regional Transport Authority may, after giving notice of not less than one month,-

(a) vary the conditions of the permit;

(b) attach to the permit further conditions:

Provided that the conditions specified in pursuance of clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof;

(xxiii) that the holder of a permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may from time to time prescribe;

(xxiv) any other conditions which may be prescribed.

Section 72. Grant of stage carriage permit.

(1) Subject to the provisions of section 71, a Regional Transport Authority may, on an application made to it under section 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:

Provided that no such permit shall be granted in respect of any route or area not specified in the application.

(2) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rule that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-

(i) that the vehicles shall be used only in a specified area, or on a specified route or routes;

(ii) that the operation of the stage carriage shall be commenced with effect from a specified date;

(iii) the minimum and maximum number of daily trips to be provided in relation to any route or area generally or on specified days and occasions;

(iv) that copies of the time-table of the stage carriage approved by the Regional Transport Authority shall be exhibited on the vehicles and at specified stands and halts on the route or within the area;

(v) that the stage carriage shall be operated within such margins of deviation from the approved time-table as the Regional Transport Authority may from time to time specify;

(vi) that within municipal limits and such other areas and places as may be prescribed, passengers or goods shall not be taken up or set down except at specified points;

(vii) the maximum number of passengers and the maximum weight of luggage that may be carried on the stage carriage, either generally or on specified occasions or at specified times and seasons;

(viii) the weight and nature of passengers’ luggage that shall be carried free of charge, the total weight of luggage that may be carried in relation to each passenger, and the arrangements that shall be made for the carriage of luggage without causing inconvenience to passengers;

(ix) the rate of charge that may be levied for passengers’ luggage in excess of the free allowance;

(x) that vehicles of a specified type fitted with body conforming to approved specifications shall be used:

Provided that the attachment of this condition to a permit shall not prevent the continued use, for a period of two years from the date of publication of the approved specifications, of any vehicle operating on that date;

(xi) that specified standards of comfort and cleanliness shall be maintained in the vehicles;

(xii) the conditions subject to which goods may be carried in the stage carriage in addition to or to the exclusion of passengers;

(xiii) that fares shall be charged is accordance with the approved fare table;

(xiv) that a copy of or extract from the fare table approved by the Regional Transport Authority and particulars of any special fares or rates of fares so approved for particular occasions shall be exhibited on the stage carriage and at specified stands and halts;

(xv) that tickets bearing specified particulars shall be issued to passengers and shall show the fares actually charged and that records of tickets issued shall be kept in a specified manner;

(xvi) that mails shall be carried on the vehicle subject to such conditions (including conditions as to the time in which mails are to be carried and the charges which may be levied) as may be specified;

(xvii) the vehicles to be kept as reserve by the holder of the permit to maintain the operation and to provide for special occasions;

(xviii) the conditions subject to which vehicle may be used as a contract carriage;

(xix) that specified arrangements shall be made for the housing, maintenance and repair of vehicle;

(xx) that any specified bus station or shelter maintained by Government or a local authority shall be used and that any specified rent or fee shall be paid for such use;

(xxi) that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority;

(xxii) that the Regional Transport Authority may, after giving notice of not less than one month,-

(a) vary the conditions of the permit;

(b) attach to the permit further conditions:

Provided that the conditions specified in pursuance of clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof;

(xxiii) that the holder of a permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may from time to time prescribe;

(xxiv) any other conditions which may be prescribed.

Comment / Related Citation:

Motor Vehicles Act, 1988, Section 72 – Stage carriage permit – Grant of – Curtailment of route – Held that what is prohibited by the proviso to sub-section (1) of Section 72 is granting of a permit in respect of any route or area not specified in the application – The said proviso does not prohibit curtailment in regard to portion of the route applied for, for any reason – In fact sub-section (1) specifically authorizes the Authority to grant stage carriage permit with such modifications as it deems fit – Reason for the modification found not arbitrary or unreasonable – The question of directing the Authority to consider the application of the respondent afresh does not arise – Impugned order passed by the High Court liable to be set aside and the orders of the Authority restored and curtailment of routes upheld.

STATE OF WEST BENGAL & ORS. v/s S. K. NURUL AMIN [(2010) 11 SCC 182 = 2010 AIR(SCW) 4075 = JT 2010 (6) SC 418 = 2010(6) SCALE 190 = AIR 2010 SC 2271 = (2010) 7 SCR 496]

&

Motor Vehicles Act, 1988, Sections 67, 70 and 72 – Motor Vehicle – Stage carriage permit – Grant of – Power of chief minister – State has no say – Chief Minister or any authority, other than the statutory authority could not entertain an application of grant of permit nor could issue any order thereupon – Even any authority under the Act, including the appellate authority cannot issue any direction, except when the matter comes up before it under the statute – All government orders must comply with requirements of a statute as also the constitutional provision.

PANCHAM CHAND AND OTHERS v/s STATE OF HIMACHAL PRADESH AND OTHERS [AIR 2008 SC 1888 = (2008) 7 SCC 117 = JT 2008 (3) SC 498 = 2008 AIR(SCW) 2111 = 2008 (3) SCR 888 = (2008) 3 Scale 378]

Section 73. Application for contract carriage permit.

An application for a permit in respect of a contract carriage (in this Chapter referred to as a contract carriage permit) shall contain the following particulars, namely:-

(a) the type and seating capacity of the vehicle;

(b) the area for which the permit is required;

(c) any other particulars which may be prescribed.

Section 73. Application for contract carriage permit.

An application for a permit in respect of a contract carriage (in this Chapter referred to as a contract carriage permit) shall contain the following particulars, namely:-

(a) the type and seating capacity of the vehicle;

(b) the area for which the permit is required;

(c) any other particulars which may be prescribed.

Section 74. Grant of contract carriage permit.

(1) Subject to the provisions of subsection (3), a Regional Transport Authority may, on an application made to it under section 73, grant a contract carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:

Provided that no such permit shall be granted in respect of any area not specified in the application.

(2) The Regional Transport Authority, if it decides to grant a contract carriage permit, may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-

(i) that the vehicles shall be used only in a specified area or on a specified route or routes;

(ii) that except in accordance with specified conditions, no contract of hiring, other than an extension or modification of a subsisting contract, may be entered into outside the specified area;

(iii) the maximum number of passengers and the maximum weight of luggage that may be carried on the vehicles, either generally or on specified occasions or at specified times and seasons;

(iv) the conditions subject to which goods may be carried in any contract carriage in addition to, or to the exclusion of, passengers;

(v) that, in the case of motorcabs, specified fares or rates of fares shall be charged and a copy of the fare table shall be exhibited on the vehicle;

(vi) that, in the case of vehicles other than motorcabs, specified rates of hiring not exceeding specified maximum shall be charged;

(vii) that in the case of motorcabs, a specified weight of passengers’ luggage shall be carried free of charge, and that the charge, if any, for any luggage in excess thereof shall be at a specified rate;

(viii) that, in the case of motorcabs, a taximeter shall be fitted and maintained in proper working order, if prescribed;

(ix) that the Regional Transport Authority may, after giving notice of not less than one month,-

(a) vary the conditions of the permit;

(b) attach to the permit further conditions;

(x) that the conditions of permit shall not be departed from save with the approval of the Regional Transport Authority;

(xi) that specified standards of comfort and cleanliness shall be maintained in the vehicles;

(xii) that, except in the circumstances of exceptional nature, the plying of the vehicle or carrying of the passengers shall not be refused;

(xiii) any other conditions which may be prescribed.

(3)(a) The State Government shall, if so directed by the Central Government, having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of contract carriages generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than five lakhs.

(b) Where the number of contract carriages are fixed under clause (a), the Regional Transport Authority shall, in considering an application for the grant of permit in respect of any such contract carriage, have regard to the following matters, namely:-

(i) financial stability of the applicant;

(ii) satisfactory performance as a contract carriage operator including payment of tax if the applicant is or has been an operator of contract carriages; and

(iii) such other matters as may be prescribed by the State Government:

Provided that, other conditions being equal, preference shall be given to applications for permits from-

(i) the India Tourism Development Corporation;

(ii) State Tourism Development Corporations;

(iii) State Tourism Departments;

(iv) State Transport Undertakings;

(v) co-operative societies registered or deemed to have been registered under any enactment for the time being in force;

(vi) ex-servicemen.

Section 75. Scheme for renting of motor cabs.

(1) The Central Government may, by notification in the Official Gazette, make a scheme for the purpose of regulating the business of renting of ¹[motor cabs or motor cycles to persons desiring to drive either by themselves or through drivers, motor cabs or motor cycles] for their own use and for matters connected therewith.

2) A scheme made under sub-section (1) may provide for all or any of the following matters, namely:-

(a) licensing of operators under the scheme including grant, renewal and revocation of such licences;

(b) form of application and form of licences and the particulars to be contained therein;

(c) fee to be paid with the application for such licences;

(d) the authorities to which the application shall be made;

(e) condition subject to which such licences may be granted, renewed or revoked;

(f) appeals against orders of refusal to grant or renew such licences and appeals against orders revoking such licences;

(g) conditions subject to which motor cabs may be rented;

(h) maintenance of records and inspection of such records;

(i) such other matters as may be necessary to carry out the purposes of this section.

1. Subs, by Act 54 of 1994, sec. 24, for “motor cabs to persons desiring to drive the cabs” (w.e.f. 14-11-1994).

Section 76. Application for private service vehicle permit.

(1) A regional Transport Authority may, on an application made to it, grant a private service vehicle permit in accordance with the application or with such modification as it deems fit or refuse to grant such permit:

Provided that no such permit shall be granted in respect of any area or route not specified in the application.

(2) An application for a permit to use a motor vehicle as a private service vehicle shall contain the following particulars, namely:-

(a) type and seating capacity of the vehicle;

(b) the area or the route or routes to which the application relates;

(c) the manner in which it is claimed that the purpose of carrying persons otherwise than for hire or reward or in connection with the trade or business carried on by the applicant will be served by vehicle; and

(d) any other particulars which may be prescribed.

(3) The Regional Transport Authority if it decides to grant the permit may subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-

(i) that the vehicle be used only in a specified area or on a specified route or routes;

(ii) the maximum number of persons and the maximum weight of luggage that may be carried;

(iii) that the Regional Transport Authority may, after giving notice of not less than one month-

(a) vary the conditions of the permit;

(b) attach to the permit further conditions;

(iv) that the conditions of permit shall not be departed from, save with the approval of the Regional Transport Authority;

(v) that specified standards of comforts and cleanliness shall be maintained in the vehicle;

(vi) that the holder of the permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may, from time to time, specify; and

(vii) such other conditions as may be prescribed.

Section 77. Application for goods carriage permit.

An application for a permit to use a motor vehicle for the carriage of goods for hire or reward or for the carriage of goods for or in connection with a trade or business carried on by the applicant (in this Chapter referred to as a goods carriage permit) shall, as far as may be contain the following particulars, namely:-

(a) the area or the route or routes to which the application relates;

(b) the type and capacity of the vehicle;

(c) the nature of the goods it is proposed to carry;

(d) the arrangements intended to be made for the housing, maintenance and repair of the vehicle and for the storage and safe custody of the goods;

(e) such particulars as the Regional Transport Authority may require with respect to any business as a carrier of goods for hire or reward carried on by the applicant at any time before the making of the application, and of the rates charged by the applicant;

(f) particulars of any agreement, or arrangement, affecting in any material respect the provision within the region of the Regional Transport Authority of facilities for the transport of goods for hire or reward, entered into by the applicant with any other person by whom such facilities are provided, whether within or without the region;

(g) any other particulars which may be prescribed.

Section 78. Consideration of application for goods carriage permit.

A Regional Transport Authority shall, in considering an application for a goods carriage permit, have regard to the following matters, namely:-

(a) the nature of the goods to be carried with special reference to their dangerous or hazardous nature to human life;

(b) the nature of the chemicals or explosives to be carried with special reference to the safety to human life.

Section 79. Grant of goods carriage permit.

(1) A Regional Transport Authority may, on an application made to it under section 77, grant a goods carriage permit to be valid throughout the State or in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:

Provided that no such permit shall be granted in respect of any area or route not specified in the application.

(2) The Regional Transport Authority, if it decides to grant a goods carriage permit, may grant the permit and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-

(i) that the vehicle shall be used only in a specified area, or on a specified route or routes;

(ii) that the gross vehicle weight of any vehicle used shall not exceed a specified maximum;

(iii) that goods of a specified nature shall not be carried;

(iv) that goods shall be carried at specified rates;

(v) that specified arrangement shall be made for the housing, maintenance and repair of the vehicle and the storage and safe custody of the goods carried;

(vi) that the holder of the permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may, from time to time, prescribe;

(vii) that the Regional Transport Authority may, after giving notice of not less than one month,-

(a) vary the conditions of the permit;

(b) attach to the permit further conditions;

(viii) that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority;

(ix) any other conditions which may be prescribed.

(3) The conditions referred to in sub-section (2) may include conditions relating to the packaging and carriage of goods of dangerous or hazardous nature to human life.

Section 80. Procedure in applying for and granting permits.

(1) An application for a permit of any kind may be made at any time.

(2) A ¹[Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66] shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act:

Provided that the ¹[Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66] may summarily refuse the application if the grant of any permit in accordance with the application would have the effect of increasing the number of stage carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub-section (3) of section 71 or of contract carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub-section (3) of section 74:

Provided further that where a ¹[Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66] refuses an application for the grant of a permit of any kind under this Act, it shall give to the applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter.

(3) An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or by altering the route or routes or area covered by it, or in the case of a stage carriage permit by increasing the number of trips above the specified maximum or by the variation, extension or curtailment of the route or routes or the area specified in the permit shall be treated as an application for the grant of a new permit:

Provided that it shall not be necessary so to treat an application made by the holder of stage carriage permit who provides the only service on any route to increase the frequency of the service so provided without any increase in the number of vehicles:

Provided further that,-

(i) in the case of variation, the termini shall not be altered and the distance covered by the variation shall not exceed twenty-four kilometres;

(ii) in the case of extension, the distance covered by extension shall not exceed twenty-four kilometres from the termini,

and any such variation or extension within such limits shall be made only after the transport authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or extended or any part thereof.

(4) A ¹[Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66] may, before such date as may be specified by it in this behalf, replace any permit granted by it before the said date by a fresh permit conforming to the provisions of section 72 or section 74 or section 76 or section 79, as the case may be, and the fresh permit shall be valid for the same route or routes or the same area for which the replaced permit

Provided that no condition other than a condition which was already attached to the replaced permit or which could have been attached thereto under the law in force when that permit was granted shall be attached to the fresh permit except with the consent in writing of the holder of the permit.

(5) Notwithstanding anything contained in section 81, a permit issued under the provisions of sub-section (4) shall be effective without renewal for the remainder of the period during which the replaced permit would have been so effective.

1. Subs. by Act 54 of 1994, sec. 25, for “Regional Transport Authority” (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988 – Sections 88(1), (2), (5), (6) & (4) Proviso and 80 – Inter-State route permit – Conditions precedent for issuance of – In absence of any such agreement as contemplated under S. 88(5) between the two States, – Interpretation of Statutes – Purposive construction applied – Words and phrases – “Except as may be otherwise prescribed” – Connotation of – The expression used in sub-section (1) of Section 88 of the Act “except as may be otherwise prescribed”, indicates that where an application for grant of inter-State route is to be applied, there must be a reciprocal agreement between the two States as contemplated under sub-section (5) of Section 88 of the Act and unless and until there is a reciprocal agreement between the two States within which the proposed inter-State route lies, no permit on inter-State route can be granted.

VENKATAKRISHNAN v/s STATE TRANSPORT AUTHORITY, KERALA [(2004) 11 SCC 207 = (2005) 5 Scale 311]

Section 81. Duration and renewal of permits.

(1) A permit other than a temporary permit issued under section 87 or a special permit issued under sub-section (8) of section 88 shall be effective ¹[from the date of issuance or renewal thereof] for a period of five years:

Provided that where the permit is countersigned under sub-section (1) of section 88, such counter-signature shall remain effective without renewal for such period so as to synchronies with the validity of the primary permit.

(2) A permit may be renewed on an application made not less than fifteen days before the date of its expiry.

(3) Notwithstanding anything contained in sub-section (2), the Regional Transport Authority or the State Transport Authority as the case may be, entertain an application for the renewal of a permit after the last date specified in that sub-section if it is satisfied that the applicant was prevented by good and sufficient cause from making an application within the time specified.

(4) The Regional Transport Authority or the State Transport Authority, as the case may be, may reject an application for the renewal of a permit on one or more of the following grounds, namely:-

(a) the financial condition of the applicant as evidenced by insolvency, or decrees for payment of debts remaining unsatisfied for a period of thirty days, prior to the date of consideration of the application;

(b) the applicant had been punished twice or more for any of the following offences within twelve months reckoned from fifteen days prior to the date of consideration of the application committed as a result of the operation of a stage carriage service by the applicant, namely:-

(i) plying any vehicle-

(1) without payment of tax due on such vehicle;

(2) without payment of tax during the grace period allowed for payment of such tax and then stop the plying of such vehicle;

(3) on any unauthorised route;

(ii) making unauthorised trips:

Provided that in computing the number of punishments for the purpose of clause (b), any punishment stayed by the order of an appellate authority shall not be taken into account:

Provided further that no application under this sub-section shall be rejected unless an opportunity of being heard is given to the applicant.

(5) Where a permit has been renewed under this section after the expiry of the period thereof, such renewal shall have effect from the date of such expiry irrespective of whether or not a temporary permit has been granted under clause (d) of section 87, and where a temporary permit has been granted, the fee paid in respect of such temporary permit shall be refused.

1. Subs, by Act 54 of 1994, sec. 26 for “without renewal” (w.e.f. 14-11-1994).

Section 82. Transfer of permit.

(1) Save as provided in sub-section (2), a permit shall not be transferable from one person to another except with the permission of the transport authority which granted the permit and shall not, without such permission, operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit.

(2) Where the holder of a permit dies, the person succeeding to the possession of the vehicle covered by the permit may, for a period of three months, use the permit as if it had been granted to himself:

Provided that such person has, within thirty days of the death of the holder, informed the transport authority which granted the permit of the death of the holder and of his own intention to use the permit:

Provided further that no permit shall be so used after the date on which it would have ceased to be effective without renewal in the hands of the deceased holder.

(3) The transport authority may, on application made to it within three months of the death of the holder of a permit, transfer the permit to the person succeeding to the possession of the vehicles covered by the permit:

Provided that the transport authority may entertain an application made after the expiry of the said period of three months if it is satisfied that the applicant was prevented by good and sufficient cause from making an application within the time specified.

Section 83. Replacement of vehicles.

The holder of a permit may, with the permission of the authority by which the permit was granted, replace any vehicle covered by the permit by any other vehicle of the same nature.

Section 84. General conditions attaching to all permits.

The following shall be conditions of every permit-

(a) that the vehicle to which the permit relates carries valid certificate of fitness issued under section 56 and is at all times so maintained as to comply with the requirements of this Act and the rules made thereunder;

(b) that the vehicle to which the permit relates is not driven at a speed exceeding the speed permitted under this Act;

(c) that any prohibition or restriction imposed any fares or freight fixed by notification made under section 67 are observed in connection with the vehicle to which the permit relates;

(d) that the vehicle to which the permit relates is not driven in contravention of the provisions of section 5 or section 113;

(e) that the provisions of this Act limiting the hours of work of drivers are observed in connection with any vehicle or vehicles to which the permit relates;

(f) that the provisions of Chapters X, XI, and XII so far as they apply to the holder of the permit are observed; and

(g) that the name and address of the operator shall be painted or otherwise firmly affixed to every vehicle to which the permit relates on the exterior of the body of that vehicle on both sides thereof in a colour or colours vividly contrasting to the colour of the vehicle centred as high as practicable below the window line in bold letters.

Section 85. General form of permits.

Every permit issued under this Act shall be complete in itself and shall contain all the necessary particulars of the permit and the conditions attached thereto.

Section 86. Cancellation and suspension of permits.

(1) The transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit-

(a) on the breach of any condition specified in section 84 or of any condition contained in the permit, or

(b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit, or

(c) if the holder of the permit ceases to own the vehicle covered by the permit, or

(d) if the holder of the permit has obtained the permit by fraud or misrepresentation, or

(e) if the holder of the goods carriage permit, fails without reasonable cause, to use the vehicle for the purposes for which the permit was granted, or

(f) if the holder of the permit acquires the citizenship of any foreign country:

Provided that no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation

(2) The transport authority may exercise the powers conferred on it under sub-section (1) in relation to a permit granted by any authority or person to whom power in this behalf has been delegated under sub-section (5) of section 68 as if the said permit was a permit granted by the transport authority.

(3) Where a transport authority cancels or suspends a permit, it shall give to the holder in writing its reasons for the action taken.

(4) The powers exercisable under sub-section (1) (other than the power to cancel a permit) by the transport authority which granted the permit may be exercised by any authority or person to whom such powers have been delegated under sub-section (5) of section 68.

(5) Where a permit is liable to be cancelled or suspended under clause (a) or clause (b) or clause (e) of sub-section (1) and the transport authority is of opinion that having regard to the circumstances of the case, it would not be necessary or expedient so to cancel or suspend the permit if the holder of the permit agrees to pay a certain sum of money, then, notwithstanding anything contained in sub- section (1), the transport authority may, instead of cancelling or suspending the permit, as the case may be, recover from the holder of the permit the sum of money agreed upon.

(6) The powers exercisable by the transport authority under sub-section (5) may, where an appeal has been preferred under section 89, be exercised also by the appellate authority.

(7) In relation to a permit referred to in sub-section (9) of section 88, the powers exercisable under sub-section (1) (other than the power to cancel a permit) by the transport authority which granted the permit, may be exercised by any transport authority and any authority or persons to whom power in this behalf has been delegated under sub-section (5) of section 68, as if the said permit was a permit granted by any such authority or persons.

Comment / Related Citation:

Motor Vehicles Act, 1988, Section 86 – Delhi Motor Vehicles Rules, 1993, Rule 61-A – Motor Vehicle – Suspension of permit – Inter-State permits -Held that countersigning State (NCT Delhi) would not be entitled to suspend or cancel the permit of a vehicle wherefor a stage carriage permit has been granted by State of U.P. – Rule 61A of the Delhi Rules would not apply

U.P. STATE ROAD TRANSPORT CORPORATION v/s ASSISTANT COMNR. OF POLICE (TRAFFIC) DELHI [(2009) 3 SCC 634 = (2009) 2 SCR 234 = JT 2009 (2) SC 553 = 2009 AIR(SCW) 2147 = 2009(2) SCALE 526 = (2009) 2 SCC(Cri) 164]

Section 87. Temporary permits.

(1) A Regional Transport Authority and the State Transport Authority may without following the procedure laid down in section 80, grant permits to be effective for a limited period which shall, not in any case exceed four months, to authorise the use of a transport vehicle temporarily-

(a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings, or

(b) for the purposes of a seasonal business, or

(c) to meet a particular temporary need, or

(d) pending decision on an application for the renewal of a permit,

and may attach to any such permit such condition as it may think fit:

Provided that a Regional Transport Authority or, as the case may be, State Transport Authority may, in the case of goods carriages, under the circumstances of an exceptional nature, and for reasons to be recorded in writing, grant a permit for a period exceeding four months, but not exceeding one year.

(2) Notwithstanding anything contained in sub-section (1), a temporary permit may be granted thereunder in respect of any route or area where-

(i) no permit could be issued under section 72 or section 74 or section 76 or section 79 in respect of that route or area by reason of an order of a Court or other competent authority restraining the issue of the same, for a period not exceeding the period for which the issue of the permit has been so restrained;

(ii) as a result of the suspension by a Court or other competent authority of the permit of any vehicle in respect of that route or area, there is no transport vehicle of the same class with a valid permit in respect of that route or area, or there is no adequate number of such vehicles in respect of that route or area, for a period not exceeding the period of such suspension:

Provided that the number of transport vehicles in respect of which temporary permits are so granted shall not exceed the number of vehicles in respect of which the issue of the permits have been restrained or, as the case may be, the permit has been suspended.

Section 88. Validation of permits for use outside region in which granted.

(1) Except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned:

Provided that a goods carriage permit, granted by the Regional Transport Authority of any one region, for any area in any other region or regions within the same State shall be valid in that area without the counter-signature of the Regional Transport Authority of the other region or of each of the other regions concerned:

Provided further that where both the starting point and the terminal point of a route are situate within the same State, but part of such route lies in any other State and the length of such part does not exceed sixteen kilometres, the permit shall be valid in the other State in respect of that part of the route which is in that other State notwithstanding that such permit has not been countersigned by the State Transport authority or the Regional Transport Authority of that other State:

Provided also that-

(a) where a motor vehicle covered by a permit granted in one State is to be used for the purposes of defence in any other State, such vehicle shall display a certificate, in such form, and issued by such Authority, as the Central Government may, by notification in the Official Gazette, specify, to the effect that the vehicle shall be used for the period specified therein exclusively for the purposes of defence; and

(b) any such permit shall be valid in that other State notwithstanding that such permit has not been countersigned by the State Transport Authority or the Regional Transport Authority of that other State.

(2) Notwithstanding anything contained in sub-section (1), a permit granted or countersigned by a State Transport Authority shall be valid in the whole State or in such regions within the State as may be specified in the permit.

(3) A Regional Transport Authority when countersigning the permit may attach to the permit any condition which it might have imposed if it had granted the permit and may likewise vary any condition attached to the permit by the authority by which the permit was granted.

(4) The provisions of this Chapter relating to the grant, revocation and suspension of permits shall apply to the grant, revocation and suspension of countersignatures of permits:

Provided that it shall not be necessary to follow the procedure laid down in section 80 for the grant of countersignatures of permits, where the permits granted in any one State are required to be countersigned by the State Transport Authority or another State or by the Regional Transport Authority concerned as a result of any agreement arrived at between the States after complying with the requirements of sub-section (5).

(5) Every proposal to enter into an agreement between the States to fix the number of permits which is proposed to be granted or countersigned in respect of each route or area, shall be published by each of the State Governments concerned in the Official Gazette and in any one or more of the newspapers in regional language circulating in the area or route proposed to be covered by the agreement together with a notice of the date before which representations in connection therewith may be submitted, and the date not being less than thirty days from the date of publication in the Official Gazette, on which, and the authority by which, and the time and place at which, the proposal and any representation received in connection therewith will be considered.

(6) Every agreement arrived at between the States shall, in so far as it relates to the grant of countersignature of permits, be published by each of the State Governments concerned in the Official Gazette and in any one or more of the newspapers in the regional language circulating in the area or route covered by the agreement and the State Transport Authority of the State and the Regional Transport Authority concerned shall give effect to it.

(7) Notwithstanding anything contained in sub-section (1), a Regional Transport Authority of one region may issue a temporary permit under section 87 to be valid in another region or State with the concurrence, given generally or for the particular occasion, of the Regional Transport Authority of that other region or of the State Transport Authority of that other State, as the case may be.

(8) Notwithstanding anything contained in sub-section (1), but subject to any rules that may be made under this Act by the Central Government, the Regional Transport Authority of any one region or, as the case may be, the State Transport Authority may, for the convenience of the public,¹[grant a special permit to any public service vehicle including any vehicle covered] by a permit issued under section 72 (including a reserve stage carriage) or under section 74 or under subsection (9) of this section for carrying a passenger or passengers for hire or reward under a contract, express or implied, for the use of the vehicle as a whole without stopping to pick up or set down along the line of route passengers not included in the contract, and in every case where such special permit is granted, the Regional Transport Authority shall assign to the vehicle, for display thereon, a special distinguishing mark in the form and manner specified by the Central Government and such special permit shall be valid in any other region or State without the countersignature of the Regional Transport Authority of the other region or of the State Transport Authority of the other State, as the case may be.

(9) Notwithstanding anything contained in sub-section (1) but subject to any rules that may be made by the Central Government under sub-section (14), any State Transport Authority may, for the purpose of promoting tourism, grant permits in respect of tourist vehicles valid for the whole of India, or in such contiguous States not being less than three in number including the State in which the permit is issued as may be specified in such permit in accordance with the choice indicated in the application and the provisions of sections 73, 74, 80, 81, 82, 83, 84, 85, 86 ²[clause (d) of sub-section (1) of section 87 and section 89] shall, as far as may be, apply in relation to such permits.

³[***]

(11) The following shall be conditions of every permit granted under subsection (9), namely:-

(i) every motor vehicle in respect of which such permit is granted shall conform to such description, requirement regarding the seating capacity, standards of comforts, amenities and other matters, as the Central Government may specify in this behalf;

(ii) every such motor vehicle shall be driven by a person having such qualifications and satisfying such conditions as may be specified by the Central Government; and

(iii) such other conditions as may be prescribed by the Central Government.

(12) Notwithstanding anything contained in sub-section (1), but, subject to the rule that may be made by the Central Government under sub-section (14), the appropriate authority may, for the purpose of encouraging long distance inter-State road transport, grant in a State, national permits in respect of goods carriages and the provisions of sections 69, 77, 79, 80, 81, 82, 83, 84, 85, 86, ⁴[clause (d) of sub-section (1) of section 87 and section 89] shall, as far as may be, apply to or in relation to the grant of national permits.

⁵[***]

(14)

(a) The Central Government may make rules for carrying out the provisions of this section.

(b) 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:-

(i) the authorisation fee payable of the issue of a permit referred to in sub-sections (9) and (12);

(ii) the fixation of the laden weight of the motor vehicle;

(iii) the distinguishing particulars or marks to be carried or exhibited in or on the motor vehicle;

(iv) the colour or colours in which the motor vehicle is to be painted;

(v) such other matters as the appropriate authority shall consider in granting a national permit.

Explanation.-In this section,-

(a) “appropriate authority”, in relation to a national permit, means the authority which is authorised under this Act to grant a goods carriage permit;

(b) “authorisation fee” means the annual fee, not exceeding one thousand rupees, which may be charged by the appropriate authority of a State to enable a motor vehicle, covered by the permit referred to in sub-sections (9) and (12) to be used in other States subject to the payment of taxes or fees, if any, levied by the States concerned;

(c) “national permit” means a permit granted by the appropriate authority to goods carriages to operate throughout the territory of India or in such contiguous States, not being less than four in number, including the State in which the permit is issued as may be specified in such permit in accordance with the choice indicated in the application.

1. Subs, by Act 54 of 1994, see. 27, for “grant a special permit in relation to a vehicle covered” (w.e.f. 14-11-1994).

2. Subs. by Act 54 of 1994, sec. 27, for “and 89″ (w.e.f. 14-11-1994).

3. Sub-section (10) omitted by Act 54 of 1994, sec. 27 (w.e.f. 14-11-1994).

4. Sub. by Act 54 of 1994, sec. 27, for “and 89″ (w.e.f. 14-11-1994).

5. Sub-section (13) omitted by Act 54 of 1994, sec. 27 (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988, Section 88 – Motor Vehicle – Stage Carriage – Inter-State permits – Grant of – Inter-State permits must be countersigned by the other State.

VISHNU DUTT AND OTHERS v/s STATE OF RAJASTHAN AND OTHERS [(2005) 13 SCC 592 = 2005 (Supp5) SCR 773 = JT 2005 (10) SC 584 = (2005) 10 Scale 222]

Section 89. Appeals.

(1) Any person-

(a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or

(b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or

(c) aggrieved by the refusal to transfer the permit under section 82, or

(d) aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit, or by any condition attached to such countersignature, or

(e) aggrieved by the refusal of renewal of a permit, or

(f) aggrieved by the refusal to grant permission under section 83, or

(g) aggrieved by any other order which may be prescribed, may, within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted under sub-section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final.

¹[(2) The State Government shall constitute such number of Transport Appellate Tribunals as it thinks fit and each such Tribunal shall consist of a judicial officer who is not below the rank of a District Judge or who is qualified to be a Judge of the High Court and it shall exercise jurisdiction within such area as may be notified by that Government.]

(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), every appeal pending at the commencement of this Act, shall continue to be proceeded with and disposed of as if this Act had not been passed.

Explanation.-For the removal of doubts, it is hereby declared that when any order is made by the State Transport Authority or the Regional Transport Authority in pursuance of a direction issued by the Inter-State Transport Commission under clause (c) of sub-section (2) of section 63A of the Motor Vehicles Act, 1939 (4 of 1939), as it stood immediately before the commencement of this Act, and any person feels aggrieved by such order on the ground that it is not in consonance with such direction, he may appeal under sub- section (1) to the State Transport Appellate Tribunal against such order but not against the direction so issued.

1. Subs. by Act 54 of 1994, sec. 28, for sub-section (2) (w.e.f. 14-11-1994).

Section 90. Revision.

The State Transport Appellate Tribunal may, on an application made to it, call for the record of any case in which an order has been made by a State Transport Authority or Regional Transport Authority against which no appeal lies, and if it appears to the State Transport Appellate Tribunal that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal, the State Transport Appellate Tribunal may pass such order in relation to the case as it deems fit and every such order shall be final:

Provided that the State Transport Appellate Tribunal shall not entertain any application from a person aggrieved by an order of a State Transport Authority or Regional Transport Authority, unless the application is made within thirty days from the date of the order:

Provided further that the State Transport Appellate Tribunal may entertain the application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by good and sufficient cause from making the application in time:

Provided also that the State Transport Appellate Tribunal shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.

Section 91. Restriction of hours of work of drivers.

¹[(1) The hours of work of any person engaged for operating a transport vehicle shall be such as provided in the Motor Transport Workers Act, 1961 (7 of 1961)].

(2) A State Government may, by notification in the Official Gazette, grant such exemptions from the provisions of sub-section (1) as it thinks fit, to meet cases of emergency or of delays by reason of circumstances which could not be foreseen.

(3) A State Government or, if authorised in this behalf by the State Government by rules made under section 96, the State or a Regional Transport Authority may require persons employing any person whose work is subject to any of the provisions of sub-section (1) to fix beforehand the hours of work of such persons so as to conform to those provisions, and may provide for the recording of the hours so fixed.

(4) No person shall work or shall cause or allow any other person to work outside the hours fixed or recorded for the work of such persons under subsection (3).

(5) A State Government may prescribe the circumstances under which and the period during which the driver of a vehicle although not engaged in work is required to remain on or near the vehicle may be deemed to be an interval for rest within the meaning of sub-section (1).

1. Subs. by Act 54 of 1994, sec. 29, for sub-section (1) (w.e.f. 14-11-1994).

Section 92. Voidance of contracts restrictive of liability.

Any contract for the conveyance of a passenger in a stage carriage or contract carriage, in respect of which a permit has been issued under this Chapter, shall, so far as it purports to negative or restrict the liability of any person in respect of any claim made against that person in respect of the death of, or bodily injury to, the passenger while being carried in, entering or alighting from the vehicle, or purports to impose any conditions with respect to the enforcement of any such liability, be void.

Section 93. Agent or canvasser to obtain licence.

(1) No person shall engage himself-

(i) as an agent or a canvasser, in the sale of tickets for travel by public service vehicles or in otherwise soliciting customers for such vehicles, or

(ii) as an agent in the business of collecting, forwarding or distributing goods carried by goods carriages,

unless he has obtained a licence from such authority and subject to such conditions as may be prescribed by the State Government.

(2) The conditions referred to in sub-section (1) may include all or any of the following matters, namely:-

(a) the period for which a licence may be granted or renewed;

(b) the fee payable for the issue or renewal of the licence;

(c) the deposit of security-

(i) of a sum not exceeding rupees fifty thousand in the case of an agent in the business of collecting, forwarding or distributing goods carried by goods carriages,

(ii) of a sum not exceeding rupees five thousand in the case of any other agent or canvasser,

and the circumstances under which the security may be forfeited;

(d) the provision by the agent of insurance of goods in transit;

(e) the authority by which and the circumstances under which the licence may be suspended or revoked;

(f) such other conditions as may be prescribed by the State Government.

(3) It shall be a condition of every licence that no agent or canvasser to whom the licence is granted shall advertise in any newspaper, book, list, classified directory or other publication unless there is contained in such advertisement appearing in such newspaper, book, list, classified directory or other publication the licence number, the date of expiry of licence and the particulars of the authority which granted the licence.

Section 94. Bar on jurisdiction of Civil Courts.

No Civil Court shall have jurisdiction to entertain any question relating to the grant of a permit under this Act, and no injunction in respect of any action taken or to be taken by the duly constituted authorities under this Act with regard to the grant of a permit, shall entertained by any Civil Court.

Section 95. Power of State Government to make rules as to stage carriages and contract carriages.

(1) A State Government may make rules to regulate, in respect of stage carriages and contract carriages and the conduct of passengers in : such vehicles.

(2) Without prejudice to the generality of the foregoing provision, such rules may-

(a) authorise the removal from such vehicle of any person contravening the rules by the driver or conductor of the vehicle, or, on the request of the driver or conductor, or any passenger, by any police officer;

(b) require a passenger who is reasonably suspected by the driver or conductor of contravening the rules to give his name and address to a police officer or to the driver or conductor on demand;

(c) require a passenger to declare, if so demanded by the driver or conductor, the journey he intends to take or has taken in the vehicle and to pay the fare for the whole of such journey and to accept any ticket issued therefor;

(d) require, on demand being made for the purpose by the driver or conductor or other person authorised by the owners of the vehicle, production during the journey and surrender at the end of the journey by the holder thereof of any ticket issued to him;

(e) require a passenger, if so requested by the driver or conductor, to leave the vehicle on the completion of the journey the fare for which he has paid;

(f) require the surrender by the holder thereof on the expiry of the period for which it is issued of a ticket issued to him;

(g) require a passenger to abstain from doing anything which is likely to obstruct or interfere with the working of the vehicle or to cause damage to any part of the vehicle or its equipment or to cause injury or discomfort to any other passenger;

(h) require a passenger not to smoke in any vehicle on which a notice prohibiting smoking is exhibited;

(i) require the maintenance of complaint books in stage carriages and prescribe the conditions under which passengers can record any complaints in the same.

Comment / Related Citation:

Motor Vehicles Act, 1939, Section 95(2) – MACT – Liability of insurer – Motor cab – Which was being used for hire or reward and thus covered by Section 95(2)(b)(i) of the Act – Which prescribes a limited liability of Rs. 50000/- Only in respect of persons other than passengers carried for hire or reward – Injured was not passenger – Liability of insurer limited.

JAMESKUTTY JACOB (2) v/s UNITED INDIA INSURANCE CO. AND OTHERS [(2006) 3 SCC 750 = (2006) 2 SCC(Cri) 114]

&

Motor Vehicles Act (59 of 1988), Sections 2(7), 95, 96 – A.P. Motor Vehicles Rules (1989), Rule 297-A(l)(c) – Validity of Rule 297-A(l)(c)-The contract carriages are for those who want to hire the vehicle collectively or individu­ally for a group or a party for their transport to a destination/destinations. The vehicle has to be hired as a whole for the carriage of passengers mentioned in the contract. There has to be only one contract for carrying the passengers mentioned in the contract from one destination to another. An agent or a group of persons/individuals cannot hire a public service vehicle for going from one place to another with passengers having dif­ferent purposes. If such a construction is put then there would be no distinction be­tween stage carriage or contract carriage permits, If contract carriage permit-holder is permitted to pick up individual or a few of them from the starting point of journey and drop them at the last terminus of the route it would virtually be a Stage Carriage with corridor restriction. Stage carriage is intended to meet the requirements of the general public travelling from one destina­tion to another having different purposes whereas a contract carriage is meant for those who want to hire a public service ve­hicle as a whole collectively for their trans­port from one destination to another having the same purpose. High Court was not right In holding that the travelling party as a whole need not have a common purpose for their travel and It was sufficient if they had a com­mon destination. . In Rule 297-A(l)(c) ‘common purpose’ has been defined to mean the intention shared alike by all the per­sons travelling by the public service vehi­cles to attend a meeting, gathering or func­tion, social, religious, political and the like, or to go to a pilgrimage or visit to- place of tourist’s interest or both. That it would not include the intention or the act of such per­sons merely travelling from one common point to another. This Rule framed by the State Government does not run counter to the provisions of S. 2(7) of the Act either in its intent or in its expression. The rule is in consonance with the intent of S. 2(7) of the Act. The same has been framed to fulfill the object with which S. 2(7) has been enacted. Any other interpretation would obliterate the distinction between a stage carriage permit and a contract carriage permit.

STATE OF ANDHRA PRADESH AND OTHERS ETC v/s B. NOORULLA KHAN AND ANOTHER ETC [AIR 2004 SC 2413 = (2004) 6 SCC 194 = (2004) 5 Scale 618 = 2004 AIR(SCW) 2901 = (2004) 5 Supreme 660 = 2004 (Supp2) SCR 432 = JT 2004 (5) SC 195]

Section 96. Power of State Government to make rules for the purposes of this Chapter.

(1) A State Government may make rules for the purpose of carrying into effect the provisions of this Chapter.

(2) Without prejudice to the generality of the foregoing power, rules under this section may be made with respect to all or any of the following matters, namely:-

(i) the period of appointment and the terms of appointment of and the conduct of business by Regional and State Transport Authorities and the reports to be furnished by them;

(ii) the conduct of business by any such authority in the absence of any member (including the Chairman) thereof and the nature of business which, the circumstances under which and the manner in which, business could be so conducted;

(iii) The conduct and hearing of appeals that may be preferred under this Chapter, the fees to be paid in respect of such appeals and the refund of such fees;

(iv) the forms to be used for the purposes of this Chapter, including the forms or permits;

(v) the issue of copies of permits in place of permits lost, destroyed or mutilated;

(vi) the documents, plates and marks to be carried by transport vehicles, the manner in which they are to be carried and the languages in which any such documents are to be expressed;

(vii) the fees to be paid in respect of applications for permits, duplicate permits and plates;

(viii) the exemption of prescribed person or prescribed classes of persons from payment of all or any or any portion of the fees payable under this Chapter;

(ix) the custody, production and cancellation on revocation or expiration of permits, and the return of permits which have been cancelled;

(x) the conditions subject to which, and the extent to which, a permit granted in another State shall be valid in the State without countersignature;

(xi) the conditions subject to which, and the extent to which, a permit granted in one region shall be valid in another region within the State without countersignature;

(xii) the conditions to be attached to permits for the purpose of giving effect to any agreement such as is referred to in clause (iii) of subsection (1) of section 67;

(xiii) the authorities to whom, the time within which and the manner in which appeals may be made;

(xiv) the construction and fittings of, and the equipment to be carried by, stage and contract carriages, whether generally or in specified areas;

(xv) the determination of the number of passengers a stage or contract carriage is adapted to carry and the number which may be carried;

(xvi) the conditions subject to which goods may be carried on stage and contract carriages partly or wholly in lieu of passengers;

(xvii) the safe custody and disposal of property left in a stage or contract carriage;

(xviii) regulating the painting or marking of transport vehicles and the display of advertising matter thereon, and in particular prohibiting the painting or marking of transport vehicles in such colour or manner as to induce any person to believe that the vehicle is used for the transport of mails;

(xix) the conveyance in stage or contract carriages of corpses or persons suffering from any infectious or contagious disease or goods likely to cause discomfort or injury to passengers and the inspection and disinfection of such carriages if used for such purposes;

(xx) the provision of taxi meters on motor cabs requiring approval or standard types of taxi meters to be used and examining testing and sealing taxi meters;

(xxi) prohibiting the picking up or setting down of passengers by stage or contract carriages at specified places or in specified areas or at places other than duly notified stands or halting places and requiring the driver of a stage carriage to stop and remain stationary for, a reasonable time when so required by a passenger desiring to board or alight from the vehicle at a notified halting place;

(xxii) the requirements which shall be complied with in the construction or use of any duly notified stand or halting place, including the provision of adequate equipment and facilities for the convenience of all users thereof; the fees, if any, which may be charged for the use of such facilities, the records which shall be maintained at such stands or places, the staff to be employed thereat, and the duties and conduct of such staff, and generally for maintaining such stands and places in a serviceable and clean condition;

(xxiii) the regulation of motor cab ranks;

(xxiv) requiring the owners of transport vehicles to notify any change of address or to report the failure of or damage to any vehicle used for the conveyance of passengers for hire or reward;

(xxv) authorising specified persons to enter at all reasonable times and inspect all premises used by permit holders for the purposes of their business;

(xxvi) requiring the person in charge of a stage carriage to carry any person tendering the legal or customary fare;

(xxvii) the conditions under which and the types of containers or vehicles in which animals or birds may be carried and the seasons during which animals or birds may or may not be carried;

(xxviii) the licensing of and the regulation of the conduct of agents or canvassers who engage in the sale of tickets for travel by public service vehicles or otherwise solicit customers for such vehicles;

(xxix) the licensing of agents engaged in the business of collecting for forwarding and distributing goods carried by goods carriages;

(xxx) the inspection of transport vehicles and their contents and of the permits relating to them;

(xxxi) the carriage of persons other than the driver in goods carriages;

(xxxii) the records to be maintained and the returns to be furnished by the owners of transport vehicles; and

(xxxiii) any other matter which is to be or may be prescribed.

Section 97. Definition.

In this Chapter, unless the context otherwise requires, “road transport service” means a service of motor vehicles carrying passengers or goods or both by road for hire or reward.

Section 98. Chapter to override Chapter V and other laws.

The provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law

Section 99. Preparation and publication of proposal regarding road transport service of a State transport undertaking.

¹[(1) Where any State Government is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State Government may formulate a proposal regarding a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and other relevant particulars respecting thereto and shall publish such proposal in the Official Gazette of the State formulating such proposal and in not less than one newspaper in the regional language circulating in the area or route proposed to be covered by such scheme and also in such other manner as the State Government formulating such proposal deem fit.

²[(2) Notwithstanding anything contained in sub-section (1), when a proposal is published under that sub-section, then from the date of publication of such proposal, no permit shall be granted to any person, except a temporary permit during the pendency of the proposal and such temporary permit shall be valid only for a period of one year from the date of its issue or till the date of final publication of the scheme under section 100, whichever is earlier.]

1. Section 99 renumbered as sub-section (1) thereof by Act 54 of 1994, sec. 30 (w.e.f. 14-11-194),

2. Ins. by Act 54 of 1994, sec. 30 (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988, Sections 99 to 104 – Notified routes – Publication of Scheme – Grant of stage carriage permits – Relevant Scheme was introduced under the provisions of Section 99 r/w Section 100 of the Act 1988 and the same was published in the Gazette on 9.9.1990 – The Motor Vehicles Act, 1939 was repealed and the same substituted by MV Act, 1988 that became effective from 1.7.1989 – The provisions of new Act which came into operation would be applicable and govern the cases in respect of the two permits for which appeals were pending before the Appellate Tribunal on the date when the aforesaid new Act came into operation – During the pendency of the aforesaid appeals also the new scheme came into operation the claim of the appellants for grant of two permits which was pending before the Appellate Tribunal was governed in accordance with the provisions of the MV Act, 1988 r/w the scheme which was promulgated and was operative and functioning – As on the date of modification of clause (4) in the year 1997 in the Scheme the appellants had no permits granted in their favour by the RTA and therefore it must be held that the present appellants had no permit in their favour granted by the RTA before coming into force of the Scheme – Consequently, the aforesaid scheme does not give any protection or benefit to the appellants – Appeal liable to be dismissed.

RAJ TRANSPORT CO. PVT. LTD., AMRITSAR v/s STATE TRANSP. APPELLATE TRIBUNAL PB. & ORS. [2010(12) SCALE 241 = (2010) 13 SCC 460]

Section 100. Objection to the proposal.

(1) On the publication of any proposal regarding a scheme in the Official Gazette and in not less than one newspaper in the regional language circulating in the area or route which is to be covered by such proposal any person may, within thirty days from the date of its publication in the Official Gazette, file objections to it before the State Government.

(2) The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State transport undertaking to be heard in the matter, if they so desire, approve or modify such proposal.

(3) The scheme relating to the proposal as approved or modified under subsection (2) shall then be published in the Official Gazette by the State Government making such scheme and in not less than one newspaper in the regional language circulating in the area or route covered by such scheme and the same shall thereupon become final on the date of its publication in the Official Gazette and shall be called the approved scheme and the area or route fo which it relates shall be called the notified area or notified route:

Provided that no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has the previous approval of the Central Government.

(4) Notwithstanding anything contained in this section, where a scheme is not published as an approved scheme under sub-section (3) in the Official Gazette within a period of one year from the date of publication of the proposal regarding the scheme in the Official Gazette under sub-section (1), the proposal shall be deemed to have lapsed.

Explanation.-In computing the period of one year referred to in this sub- section, any period or periods during which the publication of the approved scheme under sub-section (3) was held up on account of any stay or injunction by the order of any Court shall be excluded.

Comment / Related Citation:

Motor Vehicles Act, 1988 – section 99, 100 – state government empowerment under framed scheme for its transport undertakings for specific routes – private legal permit holders thereby disallowed – private operators dissatisfied due to income-loss when intersecting through and via national routes – their validity doubtful to disregard transport routes nationalization-scheme – whereupon A.P. state’s notifications – issuance under the act provisos keeping its own reservation of routes’ right – leading to outright cancellation of issued permits – contesting the legality of authority thereto since no chance of being heard given to them – hence, ultra vires s. 100 of the act – also notification seizing their fundamental right in respect of continuing trade and business secured by the constitution – high court disallowed such contentions, discharging the said writ – held, in wake of statutory provisions, valid permit-holders’ stand of income-loss termed as ‘extraneous and irrelevant factor’ rather unessential and non-relative matter – the formulation of scheme under s. 100 does not tantamount to be illegal nor unrightful – objections filed do not purport to be righteous, but irrelevant and foreign as to the main issue referred – thus, all state permit-holder operators do not possess any right or claim to use or pass through any part or portion of the notified area or route, till the concerned authority itself agrees or allows thereupon by necessary notification – petitioners are allowed to represent to the concerned ministerial authority despite the factual findings and the opportunity provided to them – apex court’s interference unnecessary – appeal disposed of accordingly.

M. MADAN MOHAN RAO AND OTHERS v/s UNION OF INDIA AND OTHERS [AIR 2002 SC 2647 = (2002) 6 SCC 348 = JT 2002 (5) SC 230 = (2002) 5 Scale 225 = 2002 AIR(SCW) 2972 = (2002) 5 Supreme 38]

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Motor Vehicles Act, 1988 – section 68, 100 – appellant is a co-operative society dealing in the business of passenger transport – government constituted regional transport authority consisting of transport commissioner as chairman – appellant challenged the notification as s. 68(2) puts complete bar to the appointment of transport commissioner as chairman being an employee of the state government – having financial interest in the government “undertaking” – held, even applying the dictionary meaning of “undertaking” on entity such as the Haryana roadways must be held to be an “undertaking” – the word “any makes it clear that it may be either private or government or public sector undertaking – the word “any” before financial interest leads to hold that it includes the financial interest which he may even as an employee of the undertaking – the notification relating to appointment of transport commissioner as chairman must be quashed – appeal allowed.

THE MOR MODERN CO-OPERATIVE TRANSPORT SOCIETY LTD. v/s FINANCIAL COMMISSIONER AND SECRETARY TO GOVT., HARYANA AND ANOTHER [AIR 2002 SC 2513 = (2002) 6 SCC 269 = JT 2002 (5) SC 125 = 2002 AIR(SCW) 2826 = (2002) 5 Supreme 55 = 2002 (Supp1) SCR 87 = (2002) 5 Scale 145]

Section 101. Operation of additional services by a State transport undertaking in certain circumstances.

Notwithstanding anything contained in section 87, a State transport undertaking may, in the public interest operate additional services for the conveyance of the passengers on special occasions such as to and from fairs and religious gatherings:

Provided that the State transport undertaking shall inform about the operation of such additional services to the concerned Transport Authority without delay.

Section 102. Cancellation or modification of scheme.

(1) The State Government may, at any time, if it considers necessary, in the public interest so to do, modify any approved scheme after giving-

(i) the State transport undertaking; and

(ii) any other person who, in the opinion of the State Government, is likely to be affected by the proposed modification,

and opportunity of being heard in respect of the proposed modification.

(2) The State Government shall publish any modification proposed under sub-section (1) in the Official Gazette and in one of the newspapers in the regional languages circulating in the area in which it is proposed to be covered by such modification, together with the date, not being less than thirty days from such publication in the Official Gazette, and the time and place at which any representation received in this behalf will be heard by the State Government.

Comment / Related Citation:

Motor Vehicles Act, 1988, Section 102 – General Clauses Act, 1897, Section 21 – Rescinding of notification – Modification of scheme – Hearing Authority – Authority delegated to the Hearing Authority limited to hear objections/representation – He is not authorized to approve the proposed modification – It was not open for the Hearing Authority to approve the proposed modification or modify the proposed scheme – Do not find that there was any impediment for the State Government in exercising its power under Section 102 of the 1988 Act read with Section 21 of the General Clauses Act, 1897 to rescind the notification .

RASID JAVED & ORS. ETC.ETC. v/s STATE OF U.P. & ANR. ETC. ETC. [2010 AIR(SCW) 4079 = JT 2010 (7) SC 285 = 2010(6) SCALE 227 = AIR 2010 SC 2275 = (2010) 7 SCC 781 = (2010) 7 SCR 535]

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Motors Vehicles Act, 1988, Section 99,100,102,103,104 – Motor Vehicle – Framing of scheme – Route – Stage carriage permits – Scheme covering mofusil service for total exclusion of private operators including operator on town services – Exception 2 in note appended to the Scheme is that the existing town service operating on the notified rules – Held that under Exception 2 contained in the note appended to the Scheme , permits can be issued only to the existing town services operating on the notified routes – This means that only existing operators on the notified routes are eligible for permits – Fresh applicants or future applicants are totally ineligible for getting permit for town services operating on notified routes.

A.P. STATE ROAD TRANSPORT CORPORATION. v/s REGIONAL TRANSPORT AUTHORITY AND ANOTHER [AIR 2005 SC 2663 = (2005) 4 SCC 391 = JT 2005 (5) SC 50 = 2005 (3) SCR 931 = (2005) 4 Scale 452]

Section 103. Issue of permits to State transport undertakings.

(1) Where, in pursuance of an approved scheme, any State transport undertaking applies in such manner as may be prescribed by the State Government in this behalf for a stage carriage permit or a goods carriage permit or a contract carriage permit in respect of a notified area or notified route, the State Transport Authority in any case where the said area or route lies in more than one region and the Regional Transport Authority in any other case shall issue such permit to the State transport undertaking, notwithstanding anything to the contrary contained in Chapter V.

(2) For the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the State Transport Authority or, as the case may be, the Regional Transport Authority concerned may, by order,-

(a) refuse to entertain any application for the grant or renewal of any other permit or reject any such application as may be pending;

(b) cancel any existing permit;

(c) modify the terms of any existing permit so as to-

(i) render the permit ineffective beyond a specified date;

(ii) reduce the number of vehicles authorised to be used under the permit;

(iii) curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route.

(3) For the removal of doubts, it is hereby declared that no appeal shall lie against any action taken, or order passed, by the State Transport Authority or any Regional Transport Authority under sub-section (1) or sub-section (2).

STATE AMENDMENTS

Karnataka:

In section 103, after sub-section (1), insert the following sub-section, namely:-

“(1A) It shall be lawful for the State Transport Undertaking to operate on any route as stage carriage, under any permit issued therefor to such Undertaking under sub-section (1), any vehicle placed at the disposal and under the control of such Undertaking by the owner of such vehicle under any arrangement entered into between such owner and the Undertaking for the use of the said vehicle by the Undertaking.”

[Karnataka Act 11 of 1996, sec. 2 (w.r.e.f. 8-7-1996)]

Uttar Pradesh:

In section 103, after sub-section (1), the following sub-section shall be inserted, namely:-

“(1A) It shall be lawful for a State transport undertaking to operate on any route as stage carriage, under any permit issued therefor to such undertaking under sub-section (1), any vehicle placed at the disposal and under the control of such undertaking by the owner of such vehicle under any arrangement entered into between such owner and the undertaking for the use of the said vehicle by the undertaking.”

[Uttar Pradesh Act 5 of 1993, sec. 2 (w.r.e.f. 16-1-1993)].

Section 104. Restriction on grant of permits in respect of a notified area or notified route.

Where a scheme has been published under sub-section (3) of section 100 in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme:

Provided that where no application for a permit has been made by the State Transport Undertaking in respect of any notified area or notified route in pursuance of an approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State transport undertaking in respect of that area or route.

Comment / Related Citation:

Motor Vehicles Act, 1988 – Section 104 proviso – Grant of temporary permits to any person in respect of a notified area or notified route – Hence, resort could not be had to proviso to S. 104 for granting temporary permits – Order of High Court directing the authority concerned that if there was need for the grant of additional permits then the same be issued to the applicants, was not justified – Hence, set aside

U.P. SRTC AND ANOTHER v./s SANJIDA BANO AND OTHERS [(2005) 10 SCC 280]

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Motor Vehicles Act, 1988, Section 100 to 104 – Motor Vehicle – Framing of scheme – Notified routes – Stage carriage permits – Route from ‘B’ to ‘N’ notified way back in 1951, no permit could have been issued in pursuance of the resolution dated 14/15/6/2003 and likewise under notification dated 3.9.1994 when the route from ‘M’ to ‘B’ had been notified no permit could have been granted on the aforesaid route as both schemes are of total exclusion – It is settled principle of law that no private operators could be permitted to operate on a notified route except by modifying scheme and after making provisions for the same – Impugned order of the High Court directing the STA to issue permit to all grantees who have not been issued on the basis of the resolution dated 14/15.6.1993 not sustainable and liable to be set aside.

U.P. STATE ROAD TRANSPORT CORPORATION THROUGH ITS CHAIRMAN. v/s OMADITYA VERMA AND OTHERS [(2005) 4 SCC 424 = 2005 (3) SCR 166 = JT 2005 (4) SC 62 = (2005) 3 Scale 636]

Section 105. Principles and method of determining compensation and payment thereof.

(1) Where, in exercise of the powers conferred by clause (b) or clause (c) of sub-section (2) of section 103, any existing permit is cancelled or the terms thereof are modified, there shall be paid by the State transport undertaking to the holder of the permit, compensation, the amount of which shall be determined in accordance with the provisions of sub-section (4) or sub-section (5), as the case may be.

(2) Notwithstanding anything contained in sub-section (1), no compensation shall be payable on account of the cancellation of any existing, permit or any modification of the terms thereof, when a permit for an alternative route or area in lieu thereof has been offered by the State Transport Authority or the Regional Transport Authority, as the case may be and accepted by the holder of the permit.

(3) For the removal of doubts, it is hereby declared that no compensation shall be payable on account of the refusal to renew a permit under clause (a) of sub-section (2) of section 103.

(4) Where, in exercise of the powers conferred by clause (b) or sub-clause (i) or sub-clause (ii) of clause (c) of sub-section (2) of section 103, any existing permit is cancelled or the terms thereof are modified so as to prevent the holder of the permit from using any vehicle authorised to be used thereunder for the full period from which the permit, would otherwise have been effective, the compensation payable to the holder of the permit for each vehicle affected by such cancellation or modification shall be computed as follows:-

(a) for every complete month or part of a month exceeding fifteen days of the unexpired period of the permit: Two hundred rupees;

(b) for part of a month not exceeding fifteen days of the unexpired period of the permit; One hundred rupees:

Provided that the amount of compensation shall, in no case, be less than four hundred rupees.

(5) Where, in exercise of the powers conferred by sub-clause (iii) of clause (c) of sub-section (2) of section 103, the terms of an existing permit are modified so as to curtail the area or route of any vehicle authorised to be used thereunder, the compensation payable to the holder of the permit on account of such curtailment shall be an amount computed in accordance with the following formula, namely:- Y x A /R

Explanation.-In this formula,-

(i) “Y” means the length or area by which the route or area covered by the permit is curtailed;

(ii) “A” means the amount computed in accordance with sub-section (4);

(iii) “R” means the total length of the route or the total area covered by the permit.

(6) The amount of compensation payable under this section shall be paid by the State transport undertaking to the person or persons entitled thereto within one month from the date on which the cancellation or modification of the permit becomes effective:

Provided that where the State transport undertaking fails to make the payment within the said period of one month, it shall pay interest at the rate of seven per cent, per annum from the date on which it falls due.

Section 106. Disposal of article found in vehicles.

Where any article found in any transport vehicle operated by the State transport undertaking is not claimed by its owner within the prescribed period, the State transport undertaking may sell the article in prescribed manner and the sale proceeds thereof, after deducting the costs incidental to sale, shall be paid to the owner on demand.

Section 107. Power of State Government to make rules.

(1) The State Government may make rules for the purpose of carrying into effect the provisions of this Chapter.

(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 form in which any proposal regarding a scheme may be published under section 99;

(b) the manner in which objections may be filed under sub-section (1) of section 100;

(c) the manner in which objections may be considered and disposed of under sub-section (2) of section 100;

(d) the form in which any approved scheme may be published under sub-section (3) of section 100;

(e) the manner in which application under sub-section (1) of section 103 may be made;

(f) the period within which the owner may claim any article found left in any transport vehicle under section 106 and the manner of sale of such article;

(g) the manner of service of orders under this Chapter;

(h) any other matter which has to be, or may be, prescribed.

Section 108. Certain powers of State Government exercisable by the Central Government.

The powers conferred on the State Government under this Chapter shall, in relation to a corporation or company owned or controlled by the Central Government or by the Central Government and one or more State Governments, be exercisable only by the Central Government in relation to an inter-State route or area.

Section 109. General provision regarding construction and maintenance of vehicles.

(1) Every motor vehicle shall be so constructed and so maintained as In be at all times under the effective control of the person driving the vehicle.

(2) Every motor vehicle shall be so constructed as to have right hand steering control unless it is equipped with a mechanical or electrical signalling device of prescribed nature.

¹[(3) If the Central Government is of the opinion that it is necessary or expedient so to do in public interest, it may by order published in the Official Gazette, notify that any article or process used by a manufacturer shall conform In such standard as may be specified in that order.]

1. Ins. by Act 54 of 1994, sec. 31 (w.e.f. 14-11-1994).

Section 110. Power of Central Government to make rules.

(1) The Central Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all or any of the following matters, namely:-

(a) the width, height, length and overhand of vehicles and of the loads carried;

¹[(b) the size, nature, maximum retail price and condition of tyres, including embossing thereon of date and year of manufacture, and the maximum load carrying capacity;]

(c) brakes and steering gear;

(d) the use of safety glasses including prohibition of the use of tinted safety glasses;

(e) signalling appliances, lamps and reflectors;

(f) speed governors;

(g) the emission of smoke, visible vapour, sparks, ashes, grit or oil;

(h) the reduction of noise emitted by or caused by vehicles;

(i) the embossment of chassis number and engine number and the date of manufacture;

(j) safety belts, handle bars of motor cycles, auto-dippers and other equipments essential for safety of drivers, passengers and other road-user;

(k) standards of the components used in the vehicle as inbuilt safety devices;

(l) provision for transportation of goods of dangerous or hazardous nature to human life;

(m) standards for emission of air pollutants;

²[(n) installation of catalytic convertors in the class of vehicles to be prescribed;

(o) the placement of audio-visual or radio or tape recorder type of devices

in public vehicles;

(p) warranty after sale of vehicle and norms therefor:]

Provided that any rules relating to the matters dealing with the protection of environment, so far as may be, shall be made after consultation with the Ministry of the Government of India dealing with environment.

(2) Rules may be made under sub-section (1) governing the matters mentioned therein, including the manner of ensuring the compliance with such matters and the maintenance of motor vehicles in respect of such matters, either generally in respect of motor vehicles or trailers or in respect of motor vehicles or trailers of a particular class or in particular circumstances.

(3) Notwithstanding anything contained in this section,-

(a) the Central Government may exempt any class of motor vehicles from the provisions of this Chapter;

(b) a State Government may exempt any motor vehicle or any class or description of motor vehicles from the rules made under sub-section (1) subject to such conditions as may be prescribed by the Central Government.

1. Subs, by Act 54 of 1994, sec. 32, for clause (b) (w.e.f. 14-11-1994).

2. Ins. by Act 54 of 1994, sec. 32 (w.e.f. 14-11-1994).

Section 111. Power of State Government to make rules.

(1) A State Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all matters other than the matters specified in sub-section (1) of section 110.

(2) Without prejudice to the generality of the foregoing power, rules may be made under this section governing all or any of the following matters either generally in respect of motor vehicles or trailers or in respect of motor vehicles or trailers of a particular class or description or in particular circumstances, namely:-

(a) seating arrangements in public service vehicles and the protection of passengers against the weather;

(b) prohibiting or restricting the use of audible signals at certain times or in certain places;

(c) prohibiting the carrying of appliances likely to cause annoyance or danger;

(d) the periodical testing and inspection of vehicles by prescribed authorities ¹[and fees to be charged for such test];

(e) the particulars other than registration marks to be exhibited by vehicles and the manner in which they shall be exhibited;

(f) the use of trailers with motor vehicles; and

²[***]

1. Ins. by Act 54 of 1994 sec. 33 (w.e.f. 14-11-1994).

2. Clause (g) omitted by Act 54 of 1994 sec. 33 (w.e.f. 14-11-1994).

Section 112. Limits of speed.

(1) No person shall drive a motor vehicle or cause or allow a motor vehicle to be driven in any public place at a speed exceeding the maximum speed or below the minimum speed fixed for the vehicle under this Act or by or under any other law for the time being in force:

Provided that such maximum speed shall in no case exceed the maximum fixed for any motor vehicle or class or description of motor vehicles by the Central Government by notification in the Official Gazette.

(2) The State Government or any authority authorised in this behalf by the State Government may, if satisfied that it is necessary to restrict the speed of motor vehicles in the interest of public safety or convenience or because of the nature of any road or bridge, by notification in the Official Gazette, and by causing appropriate traffic signs to be placed or erected under section 116 at suitable places, fix such maximum speed limits or minimum speed limits as it thinks fit for motor vehicles or any specified class or description of motor vehicles or for motor vehicles to which a trailer is attached, either generally or in a particular area or on a particular road or roads:

Provided that no such notification is necessary if any restriction under this section is to remain in force for not more than one month.

(3) Nothing in this section shall apply to any vehicle registered under section 60 while it is being used in the execution of military manoeuvres within the area and during the period specified in the notification under sub-section (1) of section 2 of the Manoeuvres, Field Firing and Artillery Practice Act, 1938 (5 of 1938).

Section 113. Limits of weight and limitations on use.

(1) The State Government may prescribe the conditions for the issue of permits for 1[transport vehicles] by the State or Regional Transport Authorities and may prohibit or restrict the use of such vehicles in any area or route.

(2) Except as may be otherwise prescribed, no person shall drive or cause or allow to be driven in any public place any motor vehicle which is not fitted with pneumatic tyres.

(3) No person shall drive or cause or allow to be driven in any public place any motor vehicle or trailer-

(a) the unladen weight of which exceeds the unladen weight specified in the certificate of registration of the vehicle, or

(b) the laden weight of which exceeds the gross vehicle weight specified in the certificate of registration.

(4) Where the driver or person in charge of a motor vehicle or trailer driven in contravention of sub-section (2) or clause (a) of sub-section (3) is not the owner, a Court may presume that the offence was committed with the knowledge of or under the orders of the owner of the motor vehicle or trailer.

1. Subs. by Act 54 of 1994, sec. 34, for “heavy goods vehicles or heavy passenger motor vehicles” (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988, Sections 113, 114, 194 and 200 – Motor Vehicles – Compounding of offences – Permissibility of – Notifications issued permits compounding of offence by payments of amounts fixed – If permitted to be continue – It would amount to fresh commission of the offence for which the compounding was done – State Govts. which have not yet withdrawn the notifications directed to do it forthwith.

PARAMJIT BHASIN AND OTHERS v/s UNION OF INDIA AND OTHERS [(2005) 12 SCC 642 = (2006) 1 SCC(Cri) 202]

&

Motor Vehicles Act , 1988, Sections 200, 113, 114, 194 – Motor Vehicles Rules, 1989, Rule 95(2) – Motor Vehicle – Driving vehicle exceeding per­missible weight – Composition of offences – Notification by State Government permitting car­riage of excess weight after compound­ing – Held that it contravenes the provisions of the Act – Power of compounding vests with the State Government, but the notification issued in that regard cannot authorize continuation of the offence which is permitted to be compounded by payments of the amounts fixed – If permitted to be continued, it would amount to fresh commission of the offence for which the compounding was done – Direction to State Government to withdraw the notification.

PARMAJIT BHASIN & ORS. v/s UNION OF INDIA &ORS. [AIR 2006 SC 440 = JT 2005 (10) SC 238 = (2005) 9 Scale 238 = 2005 (Supp5) SCR 118]

Section 114. Power to have vehicle weighed.

(1) ¹[Any officer of the Motor Vehicles Department authorised in this behalf by the State Government shall, if he has reason to believe that a goods vehicle or trailer is being used in contravention of section 113,] require the driver to convey the vehicle to a weighing device, if any, within a distance of ten kilometres from any point on the forward route or within a distance of twenty kilometres from the destination of the vehicle for weighment; and if on such weighment the vehicle is found to contravene in any respect the provisions of section 113 regarding weight, he may, by order in writing, direct the driver to off-load the excess weight at his own risk and not to remove the vehicle or trailer from that place until the laden weight has been reduced or the vehicle or trailer has otherwise been dealt with so that it complies with section 113 and on receipt of such notice, the driver shall comply with such directions.

(2) Where the person authorised under sub-section (1) makes the said order in writing, he shall also endorse the relevant details of the overloading on the goods carriage permit and also intimate the fact of such endorsement to the authority which issued that permit.

1. Subs, by Act 54 of 1994, sec. 35, for certain words (w.e.f. 14-11-1994).

Section 115. Power to restrict the use of vehicles.

The State Government or any authority authorised in this behalf by the State Government, if satisfied that it is necessary in the interest of public safety or convenience, or because of the nature of any road or bridge, may by notification in the Official Gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicles or of any specified class or description of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under section 116 at suitable places:

Provided that where any prohibition or/ restriction under this section is to remain in force for not more than one month, notification thereof in the Official Gazette shall not be necessary, but such local publicity as the circumstances may permit, shall be given of such prohibition or restriction.

Section 116. Power to erect traffic signs.

(1) (a) The State Government or any authority authorised in this behalf by the State Government may cause or permit traffic signs to be placed or erected in any public place for the purpose of bringing to public notice any speed limits fixed under sub-section (2) of section 112 or any prohibitions or restrictions imposed under section 115 or generally for the purpose of regulating motor vehicle traffic.

(b) A State Government or any authority authorised in this behalf by the State Government may, by notification in the Official Gazette or by the erection at suitable places of the appropriate traffic sign referred to in Part A of the Schedule, designate certain roads as main roads for the purposes of the driving regulations made by the Central Government.

(2) Traffic signs placed or erected under sub-section (1) for any purpose for which provision is made in the Schedule shall be of the size, colour and type and shall have the meanings set forth in the Schedule, but the State Government or any authority empowered in this behalf by the State Government may make or authorise the addition to any sign set forth in the said Schedule, of transcriptions of the words, letters or figures thereon in such script as the State Government may think fit provided that the transcriptions shall be of similar size and colour to the words, letters or figures set forth in the Schedule.

(3) Except as provided by sub-section (1), no traffic sign shall, after the commencement of this Act, be placed or erected on or near any road; but all traffic signs placed or erected prior to the commencement of this Act by any competent authority shall for the purpose of this Act by any competent authority shall for the purpose of this Act be deemed to be traffic signs placed or erected under the provisions of sub-section (1).

(4) A State Government may, by notification in the Official Gazette, empower any police officer not below the rank of a Superintendent of Police to remove or cause to be removed any sign or advertisement which is so placed in his opinion as to obscure any traffic sign from view or any sign or advertisement which in his opinion is so similar in appearance to a traffic sign as to be misleading or which in his opinion is likely to distract the attention or concentration of the driver.

(5) No person shall wilfully remove, alter, deface, or in any way tamper with, any traffic signs placed or erected under this section.

(6) If any person accidentally causes such damage to a traffic sign as renders it useless for the purpose for which it is placed or erected under this section, he shall report the circumstances of the occurrence to a police officer or at a police station as soon as possible, and in any case within twenty four hours of the occurrence.

(7) For the purpose of bringing the signs set forth in 1[the First Schedule] in conformity with any International Convention relating to motor traffic to which the Central Government is for the time being a party, the Central Government may, by notification in the Official Gazette, make any addition or alteration to any such sign and on the issue of any such notification, ¹[the First Schedule] shall be deemed to be amended accordingly.

1. Subs, by Act 54 of 1994, sec. 36, for “the Schedule” (w.e.f. 14-11-1994).

Section 117. Parking places and halting stations.

The State Government or any authority authorised in this behalf by the State Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers.

Section 118. Driving regulations.

The Central Government may, by notification in the Official Gazette, make regulations for the driving of motor vehicles.

Section 119. Duty to obey traffic signs.

(1) Every driver of a motor vehicle shall drive the vehicle in conformity with any indication given by mandatory traffic sign and in conformity with the driving regulations made by the Central Government, and shall comply with all directions given to him by any police officer for the time being engaged in the regulation of traffic in any public place.

(2) In this section “mandatory traffic sign” means a traffic sign included in Part A of ¹[The First Schedule], or any traffic sign of similar form (that is to say, consisting of or including a circular disc displaying a device, word or figure and having a red ground or border) placed or erected for the purpose of regulating motor vehicle traffic under sub-section (1) of section 116.

1. Subs, by Act 54 of 1994, sec. 36, for “the Schedule” (w.e.f. 14-11-1994).

Section 120. Vehicles with left hand control.

No person shall drive or cause or allow to be driven in any public place any motor vehicle with a left-hand steering control unless it is equipped with a mechanical or electrical signalling device of a prescribed nature and in working order.

Section 121. Signals and signalling devices.

The driver of a motor vehicle shall make such signals and on such occasions as may be prescribed by the Central Government:

Provided that the signal of an intention to turn to the right or left or to stop-

(a) in the case of a motor vehicle with a right-hand steering control, may be given by a mechanical or electrical device of a prescribed nature affixed to the vehicle; and

(b) in the case of a motor vehicle with a left hand steering control, shall be given by a mechanical or electrical device of a prescribed nature affixed to the vehicle:

Provided further that the State Government may, having regard to the width and condition of the roads in any area or route, by notification in the Official Gazette, exempt subject to such conditions as may be specified therein any motor vehicle or class or description of motor vehicles from the operation of this section for the purpose of plying in that area or route.

Section 122. Leaving vehicle in dangerous position.

No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers.

Section 123. Riding on running board, etc.

(1) No person driving or in charge of a motor vehicle shall carry any person or permit any person to be carried on the running board or otherwise than within the body of the vehicle.

(2) No person shall travel on the running board or on the top or on the bonnet of a motor vehicle.

Section 124. Prohibition against travelling without pass or ticket.

No person shall enter or remain in any stage carriage for the purposes of travelling therein unless he has with him a proper pass or ticket:

Provided that where arrangements for the supply of tickets are made in the stage carriage by which a person has to travel, a person may enter such stage carriage but as soon as may be after his entry therein, he shall make the payment of his fare to the conductor or the driver who performs the functions of a conductor and obtain from such conductor or driver, as the case may be, a ticket for his journey.

Explanation.-In this section,-

(a) “pass” means a duty, privilege or courtesy pass entitling the person to whom it is given to travel in a stage carriage gratuitously and includes a pass issued on payment for travel in a stage carriage for the period specified therein;

(b) “ticket” includes a single ticket, a return ticket or a season ticket.

Section 125. Obstruction of driver.

No person driving a motor vehicle shall allow any person to stand or sit or to place anything in such a manner or position as to hamper the driver in his control of the vehicle.

Section 126. Stationary vehicles.

No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver’s seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver.

Section 127. Removal of motor vehicles abandoned or left unattended on a public place.

¹[(1) Where any motor vehicle is abandoned or left unattended on a public place for ten hours or more or is parked in a place where parking is legally prohibited, its removal by a towing service or its immobilisation by any means including wheel clamping may be authorised by a police officer in uniform having jurisdiction.]

(2) Where an abandoned, unattended, wrecked, burnt or partially dismantled vehicle is creating a traffic hazard, because of its position in relation to the ²[public place], or its physical appearance is causing the impediment to the traffic, its immediate removal from the ²[public place] by a towing service may be authorised by a police officer having jurisdiction.

(3) Where a vehicle is authorised to be removed under sub-section (1) or subsection (2) by a police officer, the owner of the vehicle shall be responsible for all towing costs, besides any other penalty.

1. Subs. by Act 54 of 1994, sec. 37, for sub-section (1) (w.e.f. 14-11-1994).

2. Subs. by Act 54 of 1994, sec. 37, for “highway” (w.e.f. 14-11-1994).

Section 128. Safety measures for drivers and pillion riders.

(1) No driver of a two-wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver’s seat with appropriate safety measures.

(2) In addition to the safety measures mentioned in sub-section (1), the Central Government may, prescribe other safety measures for the drivers of two-wheeled motor cycles and pillion riders thereon.

Section 129. Wearing of protective headgear.

Every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear ¹[protective headgear conforming to the standards of Bureau of Indian Standards]:

Provided that the provisions of this sections shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban:

Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit.

Explanation.-“Protective headgear” means a helmet which,-

(a) by virtue of its shape, material and construction, could reasonably be expected to afford to the person driving or riding on a motor cycle a degree or protection from injury in the event of an accident; and

(b) is securely fastened to the head of the wearer by means of straps or other fastenings provided on the headgear.

1. Subs. by Act 54 of 1994, sec. 38, for certain words (w.e.f. 14-11-1994).

Section 130. Duty to produce licence and certificate of registration.

(1) The driver of a motor vehicle in any public place shall, on demand by any police officer in uniform, produce his licence for examination:

Provided that the driver may, if his licence has been submitted to, or has been seized by, any officer or authority under this or any other Act, produce in lieu of the licence a receipt or other acknowledgment issued by such officer or authority in respect thereof and thereafter produce the licence within such period, in such manner as the Central Government may prescribe to the police officer making the demand.

¹[(2) The conductor, if any, of a motor vehicle on any public place shall on demand by any officer of the Motor Vehicles Department authorised in this behalf, produce the licence for examination.]

²[(3) The owner of a motor vehicle (other than a vehicle registered under section 60), or in his absence the driver or other person in charge of the vehicle, shall, on demand by a registering authority or any other officer of the Motor Vehicles Department duly authorised in this behalf, produce the certificate of insurance of the vehicle and, where the vehicle is a transport vehicle, also the certificate of fitness referred to in section 56 and the permit; and if any or all of the certificates or the permit are not in his possession, he shall, within fifteen days from the date of demand, submit photo copies of the same, duly attested in person or send the same by registered post to the officer who demanded it.

Explanation.-For the purposes of this sub-section, “certificate” of insurance” means the certificate issued under sub-section (3) of section 147.]

(4) If the licence referred to in sub-section (2) or the certificates or permit referred to in sub-section (3), as the case may be, are not at the time in the possession of the person to whom demand is made, it shall be a sufficient compliance with this section if such person produces the licence or certificates or permit within such period in such manner as the Central Government may prescribe, to the police officer or authority making the demand:

Provided that, except to such extent and with such modifications as may be prescribed, the provisions of this sub-section shall not apply to any person required to produce the certificate of registration or the certificate of fitness of a transport vehicle.

1. Subs. by Act 54 of 1994, sec. 39, for sub-section (2) (w.e.f. 14-11-1994).

2. Subs. by Act 54 of 1994, sec. 39, for sub-section (3) (w.e.f. 14-11-1994).

Section 131. Duty of the driver to take certain precautions at unguarded railway level crossings.

Every driver of a motor vehicle at the approach of any unguarded railway level crossing shall cause the vehicle to stop and the driver of the vehicle shall cause the conductor or cleaner or attendant or any other person in the vehicle to walk up to the level crossing and ensure that no train or trolley is approaching from either side and then pilot the motor vehicle across such level crossing, and where no conductor or cleaner or attendant or any other person is available in the vehicle, the driver of the vehicle shall get down from the vehicle himself to ensure that no train or trolley is approaching from either side before the railway track is crossed.

Section 132. Duty of driver to stop in certain cases.

(1) The driver of a motor vehicle shall cause the vehicle to stop and remain stationary so long as ¹[may for such reasonable time as may be necessary, but not exceeding twenty-four hours],-

²[(a) when required to do so by any police officer not below the rank of a Sub-Inspector in uniform, in the event of the vehicle being involved in the occurrence of an accident to a person, animal or vehicle or of damage to property, or]

(b) when required to do so by any person in charge of an animal if such person apprehends that the animal is, or being alarmed by the vehicle will become, unmanageable,

³[***]

and he shall give his name and address and the name and address of the owner of the vehicle to any person affected by any such accident or damage who demands it provided such person also furnishes his name and address.

(2) The driver of a motor vehicle shall, on demand by a person giving his own name and address and alleging that the driver has committed an offence punishable under section 184 given his name and address to that person.

(3) In this section the expression “animal” means any horse, cattle, elephant, camel, ass, mule, sheep or goat.

1. Subs. by Act 54 of 1994, sec. 40, for “may reasonably be necessary” (w.e.f. 14-11-1994).

2. Subs. by Act 54 of 1994, sec. 40, for clause (a) (w.e.f. 14-11-1994).

3. Clause (c) omitted by Act 54 of 1994, sec. 40 (w.e.f. 14-11-1994).

Section 133. Duty of owner of motor vehicle to give information.

The owner of a motor vehicle, the driver or conductor of which is accused of any offence under this Act shall, on the demand of any police officer authorised in this behalf by the State Government, give all information regarding the name and address of, and the licence held by, the driver or conductor which is in his possession or could by reasonable diligence be ascertained by him.

Section 134. Duty of driver in case of accident and injury to a person.

When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall-

(a) unless it is not practicable to do so on account of mob fury or any other reason beyond his control, take all reasonable steps to secure medical attention for the injured person, ¹[by conveying him to the nearest medical practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on the duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities], unless the injured person or his guardian, in case he is a minor, desires otherwise;

(b) give on demand by a police officer any information required by him, or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention as required under clause (a), at the nearest police station as soon as possible, and in any case within twenty-four hours of the occurrence;

²[(c) give the following information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the accident, namely:-

(i) insurance policy number and period of its validity;

(ii) date, time and place of accident;

(iii) particulars of the persons injured or killed in the accident;

(iv) name of the driver and the particulars of his driving licence.

Explanation.-For the purposes of this section the expression “driver” includes the owner of the vehicle.]

1. Subs, by Act 54 of 1994, sec. 41, of “and, if necessary, convey him to the nearest hospital”

2. Ins. by Act 54 of 1994, sec. 41 (w.e.f. 14-11-1994).

Section 135. Schemes to be framed for the investigation of accident cases and wayside amenities, etc.

(1) The State Government may, by notification in the Official Gazette, make one or more schemes to provide for-

(a) an in depth study on causes and analysis of motor vehicle accidents;

(b) wayside amenities on highways;

(c) traffic aid posts on highways; and

(d) truck parking complexes along highways.

(2) Every scheme made under this section by any State Government shall be laid, as soon as may be after it is made, before the State Legislature.

Section 136. Inspection of vehicle involved in accident.

When any accident occurs in which a motor vehicle is involved, any person authorised in this behalf by the State Government may, on production if so required of his authority, inspect the vehicle and for that purpose may enter at any reasonable time any premises where the vehicle may be, and may remove the vehicle for examination:

Provided that the place to which the vehicle is so removed shall be intimated to the owner of the vehicle and the vehicle shall be returned ¹[after completion of the formalities to the owner, driver or the person in charge of the vehicle within twenty-four hours].

1. Subs. by Act 54 of 1994, sec. 42, for “without unnecessary delay” (w.e.f. 14-11-1994).

Section 137. Power of Central Government to make rules.

The Central Government may make rules to provide for all or any of the following matters, namely:-

(a) the occasions on which signals shall be made by drivers of motor vehicles and such signals under section 121;

(b) the manner in which the licences and certificates may be produced to the police officer under section 130.

Section 138. Power of State Government to make rules.

(1) The State Government may make rules for the purpose of carrying into effect the provisions of this Chapter other than the matters specified in section 137.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for-

(a) the removal and the safe custody of vehicles including their loads which have broken down or which have been left standing or have been abandoned on road;

(b) the installation and use of weighing devices;

(c) the maintenance and management of wayside amenities complexes;

(d) the exemption from all or any of the provisions of this Chapter of fire brigade vehicles, ambulances and other special classes or descriptions of vehicle, subject to such conditions as may be prescribed;

(e) the maintenance and management of parking places and stands and the fees, if any, which may be charged for their use;

(f) prohibiting the driving downhill of a motor vehicle with the gear disengaged either generally or in a specified place;

(g) prohibiting the taking hold of or mounting of a motor vehicle in motion;

(h) prohibiting the use of foot-paths or pavements by motor vehicles;

(i) generally, the prevention of danger, injury or annoyance to the public or any person, or of danger or injury to property or of obstruction to traffic; and

(j) any other matter which is to be, or may be, prescribed.

Comment / Related Citation:

Motor Vehicles Act, 1988, Section 138 – MACT – Compensation – Enhancement of – Appellant-practicing lawyer – Suffered permanent disability in accident – High court has taken a liberal view in favour of appellant than he deserved and awarded compensation of Rs 3,28,000/- with 12 % interest – Plea that no compensation awarded to engage a driver for car in future – On the date of accident he was riding on a scooter – He had not brought on evidence at that point of time he could afford car – He may have suffered some injuries but the same would not mean that he would not be in a position to rise in his profession only by reason thereof – Due to drastic fall in bank interest rates, rate of interest now granted is 9% and complainant was awarded 12% – No interference.

TEJINDER SINGH GUJRAL v/s INDERJIT SINGH & ANR [(2007) 1 SCC 508 = 2006 (Supp7) SCR 599 = (2006) 10 Scale 448 = (2007) 1 SCC(Cri) 389]

Section 139. Power of Central Government to make rules.

(1) The Central Government may, by notification in the Official Gazette, make rules for all or any of the following purposes, namely:-

(a) the grant and authentication of travelling passes, certificates or authorisations to persons temporarily taking motor vehicles out of India to any place outside India or to persons temporarily proceeding out of India to any place outside India and desiring to drive a motor vehicle during their absence from India;

(b) prescribing the conditions subject to which motor vehicles brought temporarily into India from outside India by persons intending to make a temporary stay in India may be possessed and used in India; and

(c) prescribing the conditions subject to which persons entering India from any place outside India for a temporary stay in India may drive motor vehicles in India.

(2) For the purpose of facilitating and regulating the services of motor vehicles operating between India and any other country under any reciprocal arrangement and carrying passengers or goods or both by road for hire or reward, the Central Government may, by notification in the Official Gazette, make rules with respect to all or any of the following matters, namely:-

(a) the conditions subject to which motor vehicles carrying on such services may be brought into India from outside India and possessed and used in India;

(b) the conditions subject to which motor vehicles may be taken from any place in India to any place outside India;

(c) the conditions subject to which persons employed as drivers and conductors of such motor vehicles may enter or leave India;

(d) the grant and authentication of travelling passes, certificates or authorisations to persons employed as drivers and conductors of such motor vehicles;

(e) the particulars (other than registration marks) to be exhibited by such motor vehicles and the manner in which such particulars are to be exhibited;

(f) the use of trailers with such motor vehicles;

(g) the exemption of such motor vehicles and their drivers and conductors from all or any or the provisions of this Act [other than those referred to in sub-section (4)] of the rules made thereunder;

(h) the identification of the drivers and conductors of such motor vehicles;

(i) the replacement of the travelling passes, certificates or authorisations, permits, licences or any other prescribed documents lost or defaced, on payment of such fee as may be prescribed;

(j) the exemption from the provisions of such laws as relate to customs, police or health with a view to facilitate such road transport services;

(k) any other matter which is to be, or may be, prescribed.

(3) No rule made under this section shall operate to confer on any person any immunity in any State from the payment of any tax levied in that State on motor vehicles or their users.

(4) Nothing in this Act or in any rule made thereunder by a State Government relating to-

(a) the registration and identification of motor vehicles, or

(b) the requirements as to construction, maintenance and equipment of motor vehicles, or

(c) the licensing and the qualifications of drivers and conductors of motor vehicles,

shall apply-

(i) to any motor vehicle to which or to any driver of a motor vehicle to whom any rules made under clause (b) or clause (c) of sub-section (1) or under sub-section (2) apply; or

(ii) to any conductor of a motor vehicle to whom any rules made under sub-section (2) apply.

Section 140. Liability to pay compensation in certain cases on the principle of no fault.

(1) Where death or permanent disablement of any person has resulted I from an accident arising out of the use of a motor vehicle or motor vehicles, the 1 owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, I jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.

(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of ¹[fifty thousand rupees] and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of ²[twenty-five thousand rupees].

(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.

(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.

³[(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:

Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.]

1. Subs. by Act 54 of 1994, sec. 43, for “twenty-five thousand rupees” (w.e.f. 14-11-1994).

2. Sub, by Act 54 of 1994 sec. 43, for “twelve thousand rupees” (w.e.f. 14-11-1994).

3. Ins. by Act 54 of 1994, sec. 43 (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988, Section 140 – Interim compensation – No fault compensation – As the expression ‘no fault’ suggests the compensation u/s 140 is regardless of any wrongful act, neglect or default of the person in respect of whose death the claim is made – Order of the Tribunal as affirmed by the High Court directing refund of interim compensation on the ground that deceased alone was responsible for the accident and hence claimant not entitled to any compensation held to be erroneous – The order of the Tribunal insofar as it permits the insurance company to recover the amount of interim compensation along with interest from the claimants/appellants liable to be set aside.

INDRA DEVI & ORS. v/s BAGADA RAM & ANR. [JT 2010 (9) SC 78 = 2010 AIR(SCW) 4924 = 2010(8) SCALE 312 = AIR 2010 SC 2913 = (2010) 10 SCR 347 = (2010) 13 SCC 249]

&

Motor Vehicles Act, 1988, Section 140 – Compensation – No fault liability – Findings by the Tribunal in denying the compensation as provided u/s 140 of the Act by taking view that a claim for compensation under the Section can succeed only in case it is raised at the initial stage or the proceedings and further that the claim must fail if the accident had taken place by using the car without consent or knowledge of the owner held to be erroneous – The Tribunal held to be wrong in denying to the appellant (as well as other 3 claimants) were fully entitled to no fault compensation u/s 140 of the Act – Insurance company directed to pay to the appellant Rs. 25,000/- along with simple interest @6% p.a. from the date of the order of the Tribunal till the date of payment – The other 3 claimants though not before the Court also extended the benefit of the Order.

ESHWARAPPA @ MAHESHWARAPPA AND ANR. v/s C. S. GURUSHANTHAPPA AND ANR. [JT 2010 (8) SC 508 = 2010 AIR(SCW) 4918 = 2010(8) SCALE 263 = (2010) 8 SCC 620 = AIR 2010 SC 2907 = (2010) 10 SCR 362 = (2010) 3 SCC(Cri) 1042]

Section 141. Provisions as to other right to claim compensation for death or permanent disablement.

(1) The right to claim compensation under section 140 in respect of death or permanent disablement of any person shall be in addition to ¹[any other right, except the right to claim under the scheme referred to in section 163A (such other right hereafter] in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force].

(2) A claim for compensation under section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under section 140 and also in pursuance of any right on (he principle of fault, the claim for compensation under section 140 shall be disposed of as aforesaid in the first place.

(3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first- mentioned compensation and-

(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first mentioned compensation;

(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation.

1. Subs. by Act 54 of 1994, sec. 44, for “any other right (hereafter” (w.e.f. 14-11-1994).

Section 142. Permanent disablement.

For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of section 140 if such person has suffered by reason of the accident, any injury or injuries involving:-

(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or

(b) destruction or permanent impairing of the powers of any member or joint; or

(c) permanent disfiguration of the head or face.

Comment / Related Citation:

Workmen’s Compensation Act, 1923, Section 4 – Motor Vehicles Act, 1988, Sections 142,143,163 – Workmen Compensation – Compensation – Whether the percentage of loss of earning capacity and the physical disability shall be the same – Held that both the statutes provide for the mode and manner in which the percentage of loss of earning capacity is required to be calculated – They provide that the amount of compensation in cases of this nature would be directly relatable to the percentage of physical disability suffered by the injured vis-a-vis the injuries specified in the First Schedule of the Act, 1923 – As to what would be relevant is to find out the nature of injuries as to whether the same falls within the purview of Part I of Part II thereof.

ORIENTAL INSURANCE CO. LTD. v/s MOHD. NASIR & ANR. [(2009) 6 SCC 280 = 2009 AIR(SCW) 3717 = 2009(8) SCALE 161 = JT 2009 (8) SC 26 = (2009) 8 SCR 829 = (2009) 2 SCC(Cri) 987]

Section 143. Applicability of Chapter to certain claims under Act 8 of 1923.

The provisions of this Chapter shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the Workmen’s Compensation Act, 1923 resulting from an accident of the nature referred to in sub-section (1) of section 140 and for this purpose, the said provisions shall, with necessary modifications, be deemed to form part of that Act.

Section 144. Overriding effect.

The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force.

Section 145. Definitions.

In this Chapter,-

(a) “authorised insurer” means an insurer for the time being carrying on general insurance business in India under the General Insurance Business (Nationalisation) Act, 1972, and any Government insurance fund authorised to do general insurance business under that Act;

(b) “certificate of insurance” means a certificate issued by an authorised insurer in pursuance of sub-section (3) of section 147 and includes a cover note complying with such requirements as may be prescribed, and where more than one certificate has been issued in connection with a policy, or where a copy of a certificate has been issued, all those certificates or that copy, as the case may be;

(c) “liability”, wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under section 140;

(d) “policy of insurance” includes “certificate of insurance”;

(e) “property” includes goods carried in the motor vehicle, roads, bridges, culverts, causeways, trees, posts and mile-stones;

(f) “reciprocating country” means any such country as may on the basis of reciprocity be notified by the Central Government in the Official Gazette to be a reciprocating country for the purposes of this Chapter;

(g) “third party” includes the Government.

Section 146. Necessity for insurance against third party risk.

(1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter:

¹[Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991).]

Explanation.-A person driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by this sub-section, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force.

(2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise.

(3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any vehicle owned by any of the following authorities, namely:-

(a) the Central Government or a State Government, if the vehicle is used for Government purposes connected with any commercial enterprise;

(b) any local authority;

(c) any State transport undertaking:

Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability arising out of the use of any vehicle of that authority which that authority or any person in its employment may incur to third parties.

Explanation.-For the purposes of this sub-section, “appropriate Government” means the Central Government or a State Government, as the case may be, and-

(i) in relation to any corporation or company owned by the Central Government or any State Government, means the Central Government or that State Government;

(ii) in relation to any corporation or company owned by the Central Government and one or more State Governments, means the Central Government;

(iii) in relation to any other State transport undertaking or any local authority, means that Government which has control over that undertaking or authority.

1. Ins. by Act 54 of 1994, sec. 45 (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988, Sections 158(6),146,165,166(4),168,169 – Central Motor Vehicles Rules, 1989, Rule 150,158(6) – MACT – Compensation – Problems being faced by claimants in getting compensation enumerated – Directions issued to the Police Authorities to implement Section 158(6) and 196 of the MV Act – Directions also given to the Claims Tribunal to comply with provision of Section 166(4) of the Act – Suggestions also given to the Insurance Companies and Legislative/ executive intervention also sought – Central Government also asked to consider rationalization of Second Schedule to the MV Act.

JAI PRAKASH v/s NATIONAL INSURANCE COMPANY LIMITED AND OTHERS [(2010) 2 SCC 607 = (2010) 2 SCC(Cri) 1075]

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Motor Vehicles Act, 1988 Sections 165, 146, 196-Consumer Protection Act, 1986 Section 196-Compensation – Car purchased on hire-purchase basis – Two cheques given to bank for insurance policy – Policy not renewed – Fatal accident – Claim filed before appropriate Tribunal – Compensation also claimed before Consumer Forum – Liability of insurer. Held that bank can not be held responsible, to pay damages for not obtaining insurance. Claim of damages rejected.

PRADEEP KUMAR JAIN v/s CITIBANK AND ANOTHER [AIR 1999 SC 3119 = (1999) 6 SCC 361 = JT 1999 (5) SC 639 = (1999) 4 Scale 662 = 1999 AIR(SCW) 3067 = (1999) 7 Supreme 210 = (1999) 1 SCC(Cri) 1124]

Section 147. Requirements of policies and limits of liability.

(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-

(a) is issued by a person who is an authorised insurer; or

(b) insurer the person or classes of persons specified in the policy to the extent specified in sub-section (2)-

(i) against any liability which may be incurred by him in respect of the death of or bodily ¹[injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required-

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability.

Explanation.-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead of injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:-

(a) save as provided in clause (b), the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of rupees six thousand:

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.

(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.

1. Subs. by Act 54 of 1994, sec. 46, for “injury to any person” (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988, Sections 147 and 149 – MACT – Liability of insurance company – Papers directed to be placed before the Chief Justice of India for constituting larger Bench to decided the following questions:

NATIONAL INSURANCE CO.LTD. v/s PARVATHNENI & ANR. [(2009) 8 SCC 785 = JT 2009 (12) SC 275 = 2009(12) SCALE 82 = (2009) 3 SCC(Cri) 943]

&

Workmen’s Compensation Act, 1923, Section 4 – Motor Vehicles Act, 1988, Section 147 – Compensation – Insurers liability – Workmen engaged in unloading from the tractor to an underground storage bin – While cleaning the storage bin they fell into grocery pit and died due to asphyxia – The use of the vehicle was not even claimed as being a ground on which liability is said to be fastened on the Insurance Company – View taken by the High Court that insurance company not liable held to be justified and correct and not interference called for.

MAMTAJ BI BAPUSAB NADAF & ORS. v/s UNITED INDIA INSURANCE CO. & ORS. [2010 AIR(SCW) 5872 = 2010(9) SCALE 590 = (2010) 10 SCC 536 = (2010) 10 SCR 996]

Section 148. Validity of policies of insurance issued in reciprocating countries.

Where, in pursuance of an arrangement between India and any reciprocating country, the motor vehicle registered in the reciprocating country operates on any route or within any area common to the two countries and there is in force in relation to the use of the vehicle in the reciprocating country, a policy of insurance complying with the requirements of the law of insurance in force in that country, then, notwithstanding anything contained in section 147 but subject to any rules which may be made under section 164, such policy of insurance shall be effective throughout the route or area in respect of which, the arrangement has been made, as if the policy of insurance had complied with the requirements of this Chapter.

Section 149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.

(1) If, after a certificate of insurance has been issued under sub-section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy) ¹[for under the provisions of section 163A] is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.

(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-

(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-

(i) a condition excluding the use of the vehicle-

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organised racing and speed testing, or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or

(d) without side-car being attached where the vehicle is a motor cycle; or

(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or

(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or

(b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular.

(3) Where any such judgment as is referred to in sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall he liable to the person entitled to the benefit of the decree in the manner and to be the extent specified in sub-section (1), as if the judgment were given by a Court Bin India:

Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled Hinder the corresponding law of the reciprocating country, to be made a party to he proceedings and to defend the action on grounds similar to those specified in Hub-section (2).

(4) Where a certificate of insurance has been issued under sub-section (3) of section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in clause (b) of sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under clause (b) of sub-section (1) of section 147, be of no effect:

Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this subsection shall be recoverable by the insurer from that person.

(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.

(6) In this section the expression “material fact” and “material particular” means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will take the risk and, if so, at what premium and on what conditions, and the expression “liability covered by the terms of the policy” means a liability which is covered by the policy or which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy.

(7) No insurer to whom the notice referred to in sub-section (2) or sub-section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub-section (1) or in such judgment as is referred to in sub-section (3) otherwise than in the manner provided for in sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.

Explanation.-For the purposes of this section, “Claims Tribunal” means a Claims Tribunal constituted under section 165 and “award” means an award made by that Tribunal under section 168.

1. Ins. by Act 54 of 1994, sec. 47 (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988, Sections 149(1), 166 – Compensation – Insurers liability – Insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver whereas there were 15 passengers in the vehicle and most of them died and few received injuries – The liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle – Such excess number of persons would have to be treated as third parties, but since premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned -The Appellant Insurance Company shall deposit with the Tribunal the total amount of the amount awarded in favour of the awardees and the same is to be utilized to satisfy the claims of those claimants not covered by the Insurance Policy along with the persons so covered – The Insurance Company will be entitled to recover the amount paid by it, in excess of it liability from the owner of the vehicle, by putting the decree in execution – The total amount of the six awardees which are the highest shall be construed as the liability of the Insurance Company

UNITED INDIA INSURANCE CO. LTD. v/s K.M. POONAM & ORS. [2011(2) SCALE 568 = JT 2011 (3) SC 149]

&

Motor Vehicles Act, 1988, Section 149 and 166 – Motor Vehicle accident – Compensation – Liability of Insurer – Since the cheque for the premium amount was received by the company at 4.00 p.m. on May 7, 1998, the insurance must deemed to have commenced from that time and four hours late when the vehicle met with the accident, the owner must be deemed to be covered by the insurance policy despite mentioning in the cover note that insurance would commence from May 8, 1998.

ORIENTAL INSURANCE CO. LTD. v/s DHARAM CHAND & ORS. [2010(8) SCALE 501 = JT 2010 (9) SC 251]

Section 150. Rights of third parties against insurers on insolvency of the insured.

(1) Where under any contract of insurance effected in accordance with the provisions of this Chapter, a person is insured against liabilities which he may incur to third parties, then-

(a) in the event of the person becoming insolvent or making a composition or arrangement with his creditors, or

(b) where the insured person is a company, in the event of a winding- up order being made or a resolution for a voluntary winding-up being passed with respect to the company or of a receiver or manager of the company’s business or undertaking being duly appointed, or of possession being taken by or on behalf of the holders of any debentures secured by a floating charge of any property comprised in or subject to the charge,

if, either before or after that event, any such liability is incurred by the insured person, his rights against the insurer under the contract in respect of the liability shall, notwithstanding anything to the contrary in any provision of law, be transferred to and vest in the third party to whom the liability was so incurred.

(2) Where an order for the administration of the estate of a deceased debtor is made according to the law of insolvency, then, if any debt provable in insolvency is owing by the deceased in respect of a liability to a third party against which he was insured under a contract of insurance in accordance with the provisions of this Chapter, the deceased debtor’s rights against the insurer in respect of that liability shall, notwithstanding anything to the contrary in any provision of law, be transferred to and vest in the person to whom the debt is owing.

(3) Any condition in a policy issued for the purposes of this Chapter purporting either directly or indirectly to avoid the policy or to alter the rights of the parties thereunder upon the happening to the insured person of any of the events specified in clause (a) or clause (b) of sub-section (1) or upon the making of an order for the administration of the estate of a deceased debtor according to the law of insolvency shall be of no effect.

(4) Upon a transfer under sub-section (1) or sub-section (2), the insurer shall be under the same liability to the third party as he would have been to the insured person, but-

(a) if the liability of the insurer to the insured person exceeds the liability of the insured person to the third party, nothing in this Chapter shall affect the rights of the insured person against the insurer in respect of the excess, and

(b) if the liability of the insurer to the insured person is less than the liability of the insured person to the third party, nothing in this Chapter shall affect the rights of the third party against the insured person in respect of the balance.

Section 151. Duty to give information as to insurance.

No person against whom a claim is made in respect of any liability referred to in clause (b) of section 147 shall on demand by or on behalf of the person making the claim refuse to state whether or not he was insured in respect of that liability by any policy issued under the provisions of this Chapter, or would have been so insured if the insurer had not avoided or cancelled the policy, nor shall he refuse, if he was or would have been so insured, to give such particulars with respect to that policy as were specified in the certificate of insurance issued in respect thereof.

(2) In the event of any person becoming insolvent or making a composition or arrangement with his creditors or in the event of an order being made for the administration of the estate of deceased person according to the law of insolvency, or in the event of a winding up order being made or a resolution for a voluntary winding-up being passed with respect to any company or of a receiver or manager of the company’s business or undertaking being duly appointed or of possession being taken by or on behalf of the holders of any debentures secured by a floating charge on any property comprised in or subject to the charge, it shall be the duty of the insolvent debtor, personal representative of the deceased debtor or company, as the case may be, or the official assignee or receiver in insolvency, trustee, liquidator, receiver or manager, or person in possession of the property to give at the request of any person claiming that the insolvent debtor, deceased debtor or company is under such liability to him as is covered by the provisions of this Chapter, such information as may reasonably be required by him for the purpose of ascertaining whether any rights have been transferred to and vested in him by section 150, and for the purpose of enforcing such rights, if any; and any such contract of insurance as purports whether directly or indirectly to avoid the contract or to alter the rights of the parties thereunder upon the giving of such information in the events aforesaid, or otherwise to prohibit or prevent the giving thereof in the said events, shall be of no effect.

(3) If, from the information given to any person in pursuance of sub-section (2) or otherwise, he has reasonable ground for supporting that there have or may have been transferred to him under this Chapter rights against any particular insurer, that insurer shall be subject to the same duty as is imposed by the said sub-section on the persons therein mentioned.

(4) The duty to give the information imposed by this section shall include a duty to allow all contracts of insurance, receipts for premiums, and other relevant documents in the possession or power of the person on whom the duty is so imposed to be inspected and copies thereof to be taken.

Section 152. Settlement between insurers and insured persons.

(1) No settlement made by an insurer in respect of any claim which might be made by a third party in respect of any liability of the nature referred to in clause (b) of sub-section (1) of section 147 shall be valid unless such third party is a party to the settlement.

(2) Where a person who is insured under a policy issued for the purposes of (his Chapter has become insolvent, or where, if such insured person is a company, a winding- up order has been made or a resolution for a voluntary winding-up has been passed with respect to the company, no agreement made between the insurer and the insured person after the liability has been incurred to a third party and after the commencement of the insolvency or winding-up, as the case may be, nor any waiver, assignment or other disposition made by or payment made to the insured person after the commencement aforesaid shall be effective to defeat the rights transferred to the third party under this Chapter, but those rights shall be the same as if no such agreement, waiver, assignment or disposition or payment has been made.

Section 153. Saving in respect of sections 150,151 and 152.

(1) For the purposes of sections 150, 151 and 152 a reference to “liabilities to third parties” in relation to a person insured under any policy of insurance shall not include a reference to any liability of that person in the capacity of insurer under some other policy of insurance.

(2) The provisions of sections 150, 151, and 152 shall not apply where a company is wound-up voluntarily merely for the purposes of reconstruction or of an amalgamation with another company.

Section 154. Insolvency of insured persons not to affect liability of insured or claims by third parties.

Where a certificate of insurance has been issued to the person by whom a policy has been effected, the happening in relation to any person insured by the policy of any such event as is mentioned in sub-section (1) or sub-section (2) of section 150 shall, notwithstanding anything contained in this Chapter, not affect any liability of that person of the nature referred to in clause (b) of sub-section (1) of section 147; but nothing in this section shall affect any rights against the insurer conferred under the provisions of sections 150, 151 and 152 on the person to whom the liability was incurred.

Section 155. Effect of death on certain causes of action.

Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 (39 of 1925), the death of a person in whose favour a certificate of insurance had been issued, if it occurs I after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer.

Section 156. Effect of certificate of insurance.

When an insurer has issued a certificate of insurance in respect of a contract of insurance between the insurer and the insured person, then-

(a) if and so long as the policy described in the certificate has not been issued by the insurer to the insured, the insurer shall, as between himself and any other person except the insured, be deemed to have issued to the insured person a policy of insurance conforming in all respects with the description and particulars stated in such certificate; and

(b) if the insurer has issued to the insured the policy described in the certificate, but the actual terms of the policy are less favourable to persons claiming under or by virtue of the policy against the insurer either directly or through the insured than the particulars of the policy as stated in the certificate, the policy shall, as between the insurer and any other person except the insured, be deemed to be in terms conforming in all respects with the particulars stated in the said certificate.

Section 157. Transfer of certificate of insurance.

(1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer.

¹[Explanation.-For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance.]

(2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance.

1. Ins. by Act 54 of 1994, sec. 48 (w.e.f. 14-11-1994).

Section 158. Production of certain certificates, licence and permit in certain cases

(1) Any person driving a motor vehicle in any public place shall, on being so required by a police officer in uniform authorised in this behalf by the State Government, produce-

(a) the certificate of insurance;

(b) the certificate of registration;

(c) the driving licence; and

(d) in the case of a transport vehicle, also the certificate of fitness referred to in section 56 and the permit, relating to the use of the vehicle.

(2) If, where owing to the presence of a motor vehicle in a public place an accident occurs involving death or bodily injury to another person, the driver of the vehicle does not at the time produce the certificates, driving licence and permit referred to in sub-section (1) to a police officer, he shall produce the said certificates, licence and permit at the police station at which he makes the report required by section 134.

(3) No person shall be liable to conviction under sub-section (1) or subsection (2) by reason only of the failure to produce the certificate of insurance if, within seven days from the date on which its production was required under sub-section (1), or as the case may be, from the date of occurrence of the accident, he produces the certificate at such police station as may have been specified by him to the police officer who required its production or, as the case may be, to the police officer at the site of the accident or to the officer-in-charge of the police station at which he reported the accident:

Provided that except to such extent and with such modifications as may be prescribed, the provisions of this sub-section shall not apply to the driver of a transport vehicle.

(4) The owner of a motor vehicle shall give such information as he may be required by or on behalf of a police officer empowered in this behalf by the State Government to give for the purpose of determining whether the vehicle was or was not being driven in contravention of section 146 and on any occasion when the driver was required under this section to produce his certificate of insurance.

(5) In this section, the expression “produce his certificate of insurance” means produce for examination the relevant certificate of insurance or such other evidence as may be prescribed that the vehicle was not being driven in contravention of section 146.

¹[(6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer.]

1. Subs, by Act 54 of 1994, sec. 49, for sub-section (6) (w.e.f. 14-11-1994).

Comment / Related Citation:

Criminal Procedure Code, 1973, Sections 451,457 -Motor Vehicles Act, 1988, Section 158(6) – Central Motor Vehicles Rules, 1989, Section 159 – Motor Vehicles – Seized vehicles involved in commission of various offence – National waste while in custody of Police – Contention that earlier direction issued by the Apex Court in Suderbhai Ambalal Desai case are not complied with by the prosecuting agency – Considering the mandate of Section 451 read with Section 457 Cr.P.C. further direction with regard to seized vehicle given.

GENERAL INSURANCE COUNCIL & ORS. v/s STATE OF ANDHRA PRADESH & ORS. [2010 AIR(SCW) 2967 = 2010(4) SCALE 141 = (2010) 6 SCC 768 = (2010) 5 SCR 97 = 2010 CRI. L. J. 2883 = (2010) 3 SCC(Cri) 226]

&

Motor Vehicle Act, 1988, Section 158(6) – Central Motor Vehicles Rules, 1989, Rule 159 – Section 158(6) – MACT – Statutory obligation on the concerned police officers to forward Claims Tribunal having jurisdiction about the death or bodily injury to any persons so recorded in police station – Sending copy thereof to the concerned insurer and the owner of the offending vehicle – Provision mandatory – Direction to all State Government and Union Territories to instruct all concerned police officers to comply with the requirement of section 158(6) of the Act.

GENERAL INSURANCE COUNCIL & ORS v/s STATE OF ANDHRA PRADESH & ORS [AIR 2007 SC 2696 = 2007 AIR(SCW) 4873 = (2007) 12 SCC 354 = 2007 (8) SCR 192 = (2007) 9 Scale 165 = (2008) 1 SCC(Cri) 384]

Section 159. Production of certificate of Insurance on application for authority to use vehicle.

A State Government may make rules requiring the owner of any motor vehicle when applying whether by payment of a tax or otherwise for authority to use the vehicle in a public place to produce such evidence as may be prescribed by those rules to the effect that either-

(a) on the date when the authority to use the vehicle comes into operation there will be in force the necessary policy of insurance in relation to the use of the vehicle by the applicant or by other persons on his order or with his permission, or

(b) the vehicle is a vehicle to which section 146 does not apply.

Section 160. Duty to furnish particulars of vehicle involved in accident.

A registering authority or the officer-in-charge of a police station shall, if so required by a person who alleges that he is entitled to claim compensation in respect of an accident arising out of the use of a motor vehicle, or if so required by an insurer against whom a claim has been made in respect of any motor vehicle, furnish to that person or to that insurer, as the case may be, on payment of the prescribed fee any information at the disposal of the said authority or the said police officer relating to the identification marks and other particulars of the vehicle and the name and address of the person who was using the vehicle at the time of the accident or was injured by it and the property, if any, damaged in such form and within such time as the Central Government may prescribe.

Section 161. Special provisions as to compensation in case of hit and run motor accident.

(1) For the purposes of this section, section 162 and section 163-

(a) “grievous hurt” shall have the same meaning as in the Indian Penal Code, 1860 (45 of 1860);

(b) “hit and run motor accident” means an accident arising out of the use of a motor vehicle or motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the purpose;

(c) “scheme” means the scheme framed under section 163.

(2) Notwithstanding anything contained in the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972) or any other law for the time being in force or any instrument having the force of law, the General Insurance Corporation of India formed under section 9 of the said Act and the insurance companies for the time being carrying on general insurance business in India shall provide for paying in accordance with the provisions of this Act and the scheme, compensation in respect of the death of, or grievous hurt to, persons resulting from hit and run motor accidents.

(3) Subject to the provisions of this Act and the scheme, there shall be paid as compensation-

(a) in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of ¹[twenty-five thousand rupees];

(b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed sum of ²[twelve thousand and five hundred rupees].

(4) The provisions of sub-section (1) of section 166 shall apply for the purpose of making applications for compensation under this section as they apply for the purpose of making applications for compensation referred to in that sub-section.

1. Subs. by Act 54 of 1994, sec. 50, for “eight thousand and five hundred rupees” (w.e.f. 14-11-1994).

2. Subs. by Act 54 of 1994, sec. 50, for “two thousand rupees” (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988 Sections 161,163 – Compensation – Injured, 45 years old, having income of Rs. 4,000/-p.m. – Likely to be increased – Right leg amputated – Overall disability of 50%. Held that additional amount of Rs. 2 lacs be paid.

GRIFAN v/s SARBJEET SINGH [(2000) 9 SCC 338 = JT 2000 (8) SC 55 = (2000) 7 Supreme 378]

Section 162. Refund in certain cases of compensation paid under section 161 (1).

(1) The payment of compensation in respect of the death of, or grievous hurt to, any person under section 161 shall be subject to the condition that if any compensation (hereafter in this sub-section referred to as the other compensation) or other amount in lieu of or by way of satisfaction of a claim for compensation is awarded or paid in respect of such death or grievous hurt under any other provision of this Act or any other law or otherwise so much of the other compensation or other amount aforesaid as is equal to the compensation paid under section 161 shall be refunded to the insurer.

(2) Before awarding compensation in respect of an accident involving the death of, or bodily injury to, any person arising out of the use of a motor vehicle or motor vehicles under any provision of this Act (other than section 161) or any other law, the Tribunal, Court or other authority awarding such compensation shall verify as to whether in respect of such death or bodily injury compensation has already been paid under section 161 or an application for payment of compensation is pending under that section, and such Tribunal, Court or other authority shall,-

(a) if compensation has already been paid under section 161, direct the person liable to pay the compensation awarded by it to refund to the insurer, so much thereof as is required to be refunded in accordance with the provisions of sub-section (1);

(b) if an application for payment of compensation is pending under section 161 forward the particulars as to the compensation awarded by it to the insurer.

Explanation.-For the purpose of this sub-section, an application for compensation under section 161 shall be deemed to be pending-

(i) if such application has been rejected, till the date of the rejection of the application, and

(ii) in any other case, till the date of payment of compensation in pursuance of the application.

Section 163. Scheme for payment of compensation in case of hit and run motor accidents.

(1) The Central Government may, by notification in the Official Gazette, make a scheme¹ specifying, the manner in which the scheme shall be administered by the General Insurance Corporation, the form, manner and the time within which applications for compensation may be made, the officers or authorities to whom such applications may be made, the procedure to be followed by such officers or authorities for considering and passing orders on such applications, and all other matters connected with, or incidental to, the administration of the scheme and the payment of compensation.

(2) A scheme made under sub-section (1) may provide that-

(a) a contravention of any provision thereof shall be punishable with imprisonment for such term as may be specified but in no case exceeding three months, or with fine which may extend to such amount as may be specified but in no case exceeding five hundred rupees or with both;

(b) the powers, functions or duties conferred or imposed on any officer or authority by such scheme may be delegated with the prior approval in writing of the Central Government, by such officer or authority to any other officer or authority;

(c) any provision of such scheme may operate with retrospective effect from a date not earlier than the date of establishment of the Solatium, Fund under the Motor Vehicles Act, 1939 (4 of 1939) as it stood immediately before the commencement of this Act:

Provided that no such retrospective effect shall be given so as to prejudicially affect the interests of any person who may be governed by such provision.

1. Solatium Scheme, 1989 vide S.O. 440 (E), dated 12th June, 1989, published in the Gazette of India, Extra., Pt. II, sec. 3(ii) dated 12th June, 1989. See Universal’s Central Motor Vehicles Rules, 1989 along with allied material.

Section 163A. Special provisions as to payment of compensation on structured formula basis.

¹[163A. Special provisions as to payment of compensation on structured formula basis.

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

Explanation.-For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.

1. Ins. by Act 54 of 1994, sec. 51 (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988, Sections 163A and 166 – Compensation – MACT claim filed u/s 166 of the Act but subsequently on an application treated the claim u/s 163-A and award passed and amount of compensation withdrawn by claimant – Thereafter, an application filed that the claim petition filed u/s 166 may be decided – Held that the respondents having obtained the compensation, finally determined u/s 163A of the Act are precluded from proceeding further with the petition filed u/s 166 of the Act – The impugned judgment of the High Court upholding the order passed by the Tribunal to permit the respondents to proceed further with the petition filed u/s 166 of the Act held not sustainable and liable to be set aside.

ORIENTAL INSURANCE CO.LTD. v/s DHANBAI KANJI GADHVI & ORS. [2011(2) SCALE 39 = 2011 AIR(SCW) 1269]

&

Motor Vehicles Act, 1988, Sections 163A, 166 – Compensation – Injury cases – Assessment of future loss of earnings due to permanent disability – Principles discussed.

RAJ KUMAR v/s AJAY KUMAR & ANR. [2010(12) SCALE 265 = (2011) 1 SCC 343]

Section ¹[163B. Option to file claim in certain cases

Where a person is entitled to claim compensation under section 140 and section 163A, he shall file the claim under either of the said sections and not under both.]

1. Ins. by Act 54 of 1994, sec. 51 (w.e.f. 14-11-1994).

Section 164. Power of Central Government to make rules.

(1) The Central Government may make rules for the purpose of carrying into effect the provisions of this Chapter, other than the matters specified in section 159.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for-

(a) the forms to be used for the purposes of this Chapter;

(b) the making of applications for and the issue of certificates of insurance;

(c) the issue of duplicates to replace certificates of insurance lost, destroyed or mutilated;

(d) the custody, production, cancellation and surrender of certificates of insurance;

(e) the records to be maintained by insurers of policies of insurance issued under this Chapter;

(f) the identification by certificates or otherwise of persons or vehicles exempted from the provisions of this Chapter;

(g) the furnishing of information respecting policies of insurance by insurers;

(h) adopting the provisions of this Chapter to vehicles brought into India by persons making only a temporary stay therein or to vehicles registered in a reciprocating country and operating on any route or within any area in India by applying those provisions with prescribed modifications;

(i) the form in which and the time limit within which the particulars referred to in section 160 may be furnished; and

(j) any other matter which is to be, or may be, prescribed.

Section 165. Claims Tribunals.

(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.

Explanation.-For the removal of doubts, it is hereby declared that the expression “claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles” includes claims for compensation under section 140 ¹[and section 163A].

(2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof.

(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he-

(a) is, or has been, a Judge of a High Court, or

(b) is, or has been a District Judge, or

(c) is qualified for appointment as a High Court Judge ¹[or as a District Judge].

(4) Where two or more Claims Tribunals are constituted for any area, the State Government, may by general or special order, regulate the distribution of business among them.

1. Added by Act 54 of 1994, sec. 52 (w.e.f. 14-11-1994).

Section 166. Application for compensation.

(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made-

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

¹[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.]

²[***]

³[(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.]

1. Subs. by Act 54 of 1994, sec. 53, for sub-section (2) (w.e.f. 14-11-1994).

2. Sub.-section (3) omitted by Act 53 of 1994, sec. 53 (w.e.f. 14-11-1994).

3. Subs. by Act 54 of 1994, sec. 53, for sub-section (4) (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988, Section 166 – Compensation – Claim petition denied by the Tribunal as well as High Court on the ground that concerned vehicle was not involved in the accidentas in the FIR lodged by the brother of the victim neither the number of the vehicle nor the name of the driver was mentioned – Evidence of witness discarded solely on the ground that name of witness was not mentioned in the FIR, so it was not possible for the witness to see the incident – Held to be not a proper assessment of the fact situation in this case – In a case relating to motor accident claims the claimants are not required to prove the case as it is required to be done in a criminal trial – The Tribunal has applied multiplier of 16 even though the age of deceased had been determined as 29 years – Considering the age of the deceased of the victim the multiplier of 17 should be applied and the amount of compensation comes to Rs. 3,93,428/- apart from the amount of funeral expenses -Keeping in view the number of claimants of which three are minor children in exercise of its power under Article 142 of the Constitution an amount of Rs. 6 lacs awarded including the amounts of consortium and funeral expenses along with interest @7% from the date of presentation of the claim petition till the date of actual payment.

KUSUM LATA AND OTHERS v/s SATBIR AND OTHERS [2011 AIR(SCW) 1593 = (2011) 3 SCC 646]

&

Motor Vehicles Act, 1988, Section 166 – Compensation – Addition of income for future prospectus – Multiplier – Split multiplier – Though there was evidence on record for future promotion of deceased who was 51 years of age but that not taken into account and taking income of the deceased at Rs. 16,000/- after applying multiplier of 11 compensation of Rs. 14,27,496/- awarded by the Tribunal and the same reduced to Rs. 11,82,000/- by introducing the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefor – Multiplier of 11 applied by the Tribunal upheld – The judgment of the High Court held to be perverse and liable to be set aside -Taking into account the future prospectus of the deceased his income taken to be 20,000/- instead of Rs. 16,000/- and by applying multiplier of 11 the total compensation award rounded off to Rs. 18,0,0000.

K.R. MADHUSUDHAN & ORS. v/s ADMINISTRATIVE OFFICER & ANR. [2011(2) SCALE 511 = 2011 AIR(SCW) 1390]

Section 167. Option regarding claims for compensation in certain cases.

Notwithstanding anything contained in the Workmen’s Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen’s Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.

Section 168. Award of the Claims Tribunal.

On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:

Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.

(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.

(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.

Comment / Related Citation:

Motor Vehicles Act, 1988, Sections 2(30),50 and 168 – Compensation – Liability of owner – ‘J’ registered owner of the vehicle sold the vehicle to ‘S’ – Notwithstanding the sale of vehicle neither the transferor ‘J’ nor the transferee ‘S’ took any step for change of the name of the owner in the certificate of registration of the vehicle – In view of the omission ‘J’ must be deemed to continue as the owner of the vehicle for the purpose of the Act even though under civil law he ceased to be its owner after sale of vehicle – ‘J’ whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of compensation amount – Since insurance policy in respect of the truck was taken out in ‘J’s name he was indemnified and the claim will be shifted to the insurer.

PUSHPA @ LEELA & ORS. v/s SHAKUNTALA & ORS. [2011 AIR(SCW) 562 = JT 2011 (1) SC 117 = 2011(1) SCALE 303 = (2011) 2 SCC 240 = AIR 2011 SC 682]

&

Motor Vehicles Act, 1988, Sections 163A,165(1),166,168,169(2) – Compensation – Claim petition – Maintainability – Death of owner-driver in accident – Claim petition file u/s 163A in which plea raised by the Insurance Company that claim petition not competent because the deceased was not a third party being the driver-owner of the vehicle under the Act 1988 and the same upheld by the Tribunal and the High Court – Held that the inquiry under Section 168 and the summary procedure that the Claims Tribunal has to follow do not contemplate the controversy arising out of claim application being decided in piecemeal – The Claims Tribunal required to dispose of all issues one way or the other in one go while deciding the claim application -The objection raised by the Insurance Company about the maintainability of claim petition is intricately connected with its liability which in the facts and circumstances of the case is dependent on the determination of the effect of additional premium paid by the insured to cover the risk of the driver and other terms of the policy – Matter remitted to the Tribunal for decision and passing of award.

BIMLESH AND ORS. v/s NEW INDIA ASSURANCE CO. LTD. [2010 AIR(SCW) 4581 = AIR 2010 SC 2591 = (2010) 8 SCC 591 = 2010(7) SCALE 732 = (2010) 9 SCR 605 = (2010) 3 SCC(Cri) 1025]

Section 169. Procedure and powers of Claims Tribunals.

(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.

(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal 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).

(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry.

Section 170. Impleading insurer in certain cases.

Where in the course of any inquiry, the Claims Tribunal is satisfied that-

(a) there is collusion between the person making the claim and the person against whom the claim is made, or

(b) the person against whom the claim is made has failed to contest the claim,

it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom (he claim has been made.

Comment / Related Citation:

Motor Vehicles Act, 1988, Section 170 – MACT – Compensation – Award by Tribunal – Appeal by insurer – Dismissal by High Court on sole ground that the Tribunal while granting permission to the insurer to contest claim under Section 170 of the Act did not assign any reason for granting permission – Order of the High Court liable to be set aside.

NATIONAL INSURANCE COMPANY LIMITED v/s MEGHJI NARAN SORATIYA & ORS. [(2009) 3 SCR 875 = 2009 AIR(SCW) 2340 = 2009(4) SCALE 50 = (2009) 12 SCC 796 = (2010) 1 SCC(Cri) 750]

&

Motor Vehicles Act (59 of 1988), Sections. 170(b), 173.- Advocate(S): P. K. Seth, S. K. Gupta, Anurag Pandey and Anil Arora, Advocates, for Appellant; Mehul Vakharia, P. Venugopal, P. S. Sudheer, Advocates, for M/s. K. J. John and Co., Advocates, for Respondents.

UNITED INDIA INSURANCE CO. LTD v/s JYOTSNABEN SUDHIRBHAI PATEL AND OTHERS [AIR 2003 SC 3127 = (2003) 7 SCC 212 = (2003) 6 Scale 288 = 2003 (Supp2) SCR 380 = JT 2003 (6) SC 547]

Section 171. Award of interest where any claim is allowed.

Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.

Comment / Related Citation:

Motor Vehicles Act, 1988 – Sections 163,168-A and 171- MACT – Compensation – Multiplier – Applicability of appropriate multiplier challenged – Deviation from multiplier as provided under Schedule not permissible unless special reason there for indicated – In case of first deceased aged 46 years, multiplier of 13 would be applicable and in case of second deceased aged 42 years, multiplier of 15 would be applicable – High Court applied multiplier of 11 and14 – Held that though High Court enhanced amount, refused to award interest, stating “since appeals are being disposed of at motion stage, no interest on enhanced amount of compensation will be paid to claimants” – Found it to be no good reason to deny interest on enhanced amount – It would be taken that amount enhanced liable to be paid to claimant’s right from beginning though enhanced later on appeal – By applying higher multipliers of 13 and 15 in regard to claimants of both parties respectively, amount of compensation shall be further increased – Interest would also be payable on said increased amount – Thus compensation enhanced with interest – Appeals allowed.

SWARAN LATA AND OTHERS v/s RAM CHET AND OTHERS [(2007) 15 SCC 650 = (2010) 3 SCC(Cri) 620]

&

Motor Vehicles Act, 1988 – Section 166, 168, 173 and 171 – MACT – Compensation – Permanent disability to the extent of 65% to 70% – Tribunal awarded compensation of Rs 15,36,460/- enhanced to Rs 21,60,460/- by High Court – Appeal to Supreme Court. Held, enhancements by High Court under headings “fracture of both the bones of right leg”, “compound segmental fracture of shaft of right femur” and “extra nourishment food and miscellaneous expenses”, set aside -Taking future promotions as uncertain and it may or may not happen depending on exigency of service “Loss of future income” reduced. Award by Tribunal under headings “plastic surgery” and “loss of marriage prospects”, set aside. But conveyance charges as awarded by High Court upheld, considering the fact that claimant has to go to hospital for proper check-up, Compensation reduced to Rs 12,61,400 with interest @ 9% p.a.

MANAGING DIRECTOR, BMTC v/s SYED NISAR AHMED [(2009) 16 SCC 414]

Section 172. Award of compensatory costs in certain cases.

(1) Any Claims Tribunal adjudicating upon any claim for compensation under this Act, may in any case where it is satisfied for reasons to be recorded by it in writing that-

(a) the policy of insurance is void on the ground that it was obtained by representation of fact which was false in any material particular, or

(b) any party or insurer has put forward a false or vexatious claim or defence, such Tribunal may make an order for the payment, by the party who is guilty of misrepresentation or by whom such claim or defence has been put forward of special costs by way of compensation to the insurer or, as the case may be, to the party against whom such claim or defence has been put forward.

(2) No Claims Tribunal shall pass an order for special costs under sub-section (1) for any amount exceeding one thousand rupees.

(3) No person or insurer against whom an order has been made under this section shall, by reason thereof be exempted from any criminal liability in respect of such mis-representation, claim or defence as is referred to in sub-section (1).

(4) Any amount awarded by way of compensation under this section in respect of any misrepresentation, claim or defence, shall be taken into account in any subsequent suit for damages for compensation in respect of such misrepresentation, claim or defence.

Section 173. Appeals.

(1) Subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:

Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent, of the amount so awarded, whichever is less, in the manner directed by the High Court:

Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.

Comment / Related Citation:

Motor Vehicles Act, 1988, Section 173 – Motor Vehicle accident – Compensation – Income – Deductions – Net income – Deduction as 30% towards income tax as assessed by the High Court not disturbed – Held that while ascertaining the income of the deceased any deductions shown in the salary certificate as deductions towards GPF, life insurance premium, repayments of loans etc. should not be excluded from the income – The deduction towards income tax/surcharge alone should be considered to arrive at the net income of the deceased.

SHYAMWATI SHARMA & ORS. v/s KARAM SINGH & ORS. [JT 2010 (7) SC 214 = 2010 AIR(SCW) 4391 = 2010(6) SCALE 763 = (2010) 8 SCR 417 = (2010) 12 SCC 378]

&

Motor Vehicles Act, 1988, Sections 166,173 – Compensation – Multiplier – The age of deceased was 48 years at the time of accident – Multiplier of 13 applied by tribunal reduced to 10 by the High Court – Held that the Tribunal had rightly applied multiplier of 13 – Award of MACT restored – The interest @7.5% p.a. awarded by High Court from the date of petition till the date of payment upheld.

PODDUTOORI LALITA DEVI AND ANR. v/s A.P.S.R.T.C. REP. BY MANAGING DIRECTOR AND ANR. [2010(2) SCALE 587]

Section 174. Recovery of money from insurer as arrear of land revenue.

Where any amount is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue.

Section 175. Bar on jurisdiction of Civil Courts.

Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court.

Section 176. Power of State Government to make rules.

A State Government may make rules for the purpose of carrying into effect the provisions of sections 165 to 174, and in particular, such rules may provide for all or any of the following matters, namely:-

(a) the form of application for claims for compensation and the particulars it may contain, and the fees, if any, to be paid in respect of such application;

(b) the procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;

(c) the powers vested in a Civil Court which may be exercised by a Claims Tribunal;

(d) the form and the manner in which and the fees (if any) on payment of which an appeal may by preferred against an award of a Claims Tribunal; and

(e) any other matter which is to be, or may be, prescribed.

Section 177. General provision for punishment of offences.

Whoever contravenes any provision of this Act or of any rule, regulation or notification made thereunder shall, if no penalty is provided for the offence be punishable for the first offence with fine which may extend to one hundred rupees, and for any second or subsequent offence with fine which may extend to three hundred rupees.

Section 178. Penalty for travelling without pass or ticket and for dereliction of duty on the part of conductor and refusal to ply contract carriage, etc.

(1) Whoever travels in a stage carriage without having a proper pass or ticket with him or being in or having alighted from a stage carriage fails or refuses to present for examination or to deliver up his pass or ticket immediately on a requisition being made therefor, shall be punishable with fine which may extend to five hundred rupees.

Explanation.-In this section, “pass” and “ticket” have the meanings respectively assigned to them in section 124.

(2) If the conductor of a stage carriage, or the driver of a stage carriage performing the functions of a conductor in such stage carriage, whose duty is-

(a) to supply a ticket to a person travelling in a stage carriage on payment of fare by such person, either wilfully or negligently,-

(i) fails or refuses to accept the fare when tendered, or

(ii) fails or refuses to supply a ticket, or

(iii) supplies an invalid ticket, or

(iv) supplies a ticket of a lesser value, or

(b) to check any pass or ticket, either wilfully or negligently fails or refuses to do so,

he shall be punishable with fine which may extend to five hundred rupees.

(3) If the holder of a permit or the driver of a contract carriage refuses, in contravention of the provisions of this Act or rules made thereunder, to ply the contract carriage or to carry the passengers, he shall,-

(a) in the case of two-wheeled or three-wheeled motor vehicles, be punishable with fine which may extend to fifty rupees; and

(b) in any other case, be punishable with fine which may extend to two hundred rupees.

Section 179. Disobedience of orders, obstruction and refusal of information.

(1) Whoever wilfully disobeys any direction lawfully given by any person or authority empowered under this Act to give such direction, or obstructs any person or authority in the discharge of any functions which such person or authority is required or empowered under this Act to discharge, shall, if no other penalty is provided for the offence be punishable with fine which may extend to five hundred rupees.

(2) Whoever, being required by or under this Act to supply any information, wilfully withholds such information or gives information which he knows to be false or which he does not believe to be true, shall, if no other penalty is provided for the offence, be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.

Section 180. Allowing unauthorised persons to drive vehicles.

Whoever, being the owner or person in charge of a motor vehicle, causes or permits, any other person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

Section 181. Driving vehicles in contravention of section 3 or section 4.

Whoever drives a motor vehicle in contravention of section 3 or section 4 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Section 182. Offences relating to licences.

(1) Whoever, being disqualified under this Act for holding or obtaining a driving licence drives a motor vehicle in a public place of in any other place, or applies for or obtains a driving licence or, not being entitled to have a driving licence issued to him free of endorsement, applies for or obtains a driving licence without disclosing the endorsement made on a driving licence previously held by him shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees or with both, and any driving licence so obtained by him shall be of no effect.

(2) Whoever, being disqualified under this Act for holding or obtaining a conductor’s licence, acts as a conductor of a stage carriage in a public place or plies for or obtains a conductor’s licence or, not being entitled to have a conductor’s licence issued to him free of endorsement, applies for or obtains a conductor’s licence without disclosing the endorsements made on a conductor’s licence previously held by him, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one hundred rupees, or with both, and any conductor’s licence so obtained by him shall be of no effect.

Section ¹[182A. Punishment for offences relating to construction and maintenance of vehicles.

Any person who contravenes the provisions of sub-section (3) of section 109, shall be punishable with a fine of one thousand rupees for the first offence and with a fine of five thousand rupees for any subsequent offences.]

1. Ins. by Act 54 of 1994, sec. 54 (w.e.f. 14-11-1994).

Section 183. Driving at excessive speed, etc.

(1) Whoever drives a motor vehicle in contravention of the speed limits referred to in section 112 shall be punishable with fine which may extend to four hundred rupees, or, if having been previously convicted of an offence under this sub-section is again convicted of an offence under this sub-section, with fine which may extend to one thousand rupees.

(2) Whoever causes any person who is employed by him or is subject to his control in driving to drive a motor vehicle in contravention of the speed limits referred to in section 112 shall be punishable with fine which may extend to three hundred rupees, or, if having been previously convicted of an offence under this sub-section, is again convicted of an offence under this sub-section, with fine which may extend to five hundred rupees.

(3) No person shall be convicted of an offence punishable under sub-section (1) solely on the evidence of one witness to the effect that in the opinion of the witness such person was driving at a speed which was unlawful, unless that opinion is shown to be based on an estimate obtained by the use of some mechanical device.

(4) The publication of a time table under which or the giving of any direction that any journey or part of a journey is to be completed within a specified time shall, if in the opinion of the Court it is not practicable in the circumstances of the case for that journey or part of a journey to be completed in the specified time without contravening the speed limits referred to in section 112 be prima fade evidence that the person who published the time table or gave the direction has committed an offence punishable under sub-section (2).

Section 184. Driving dangerously.

Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable for the first offence with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, and for any second or subsequent offence if committed within three years of the commission of a previous similar offence with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both.

Section 185. Driving by a drunken person or by a person under the influence of drugs.

Whoever, while driving, or attempting to drive, a motor vehicle,-

¹[(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or]

(b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.

Explanation.-For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle.

1. Subs. by Act 54 of 1994, sec. 55, for clause (a) (w.e.f. 14-11-1994).

Section 186. Driving when mentally or physically unfit to drive.

Whoever drives a motor vehicle in any public place when he is to his knowledge suffering from any disease or disability calculated to cause his driving of the vehicle to be a source of danger to the public, shall be punishable for the first offence with fine which may extend to two hundred rupees and for a second or subsequent offence with fine which may extend to five hundred rupees.

Section 187. Punishment for offences relating to accident.

Whoever fails to comply with the provisions of clause (c) of sub-section (1) of section 132 or of section 133 or section 134 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both or, if having been previously convicted of an offence under this section, he is again convicted of an offence under this section, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Section 188. Punishment for abetment of certain offences.

Whoever abets the commission of an offence under section 184 or section 185 or section 186 shall be punishable with the punishment provided for the offence.

Section 189. Racing and trials of speed.

Whoever without the written consent of the State Government permits or takes part in a race or trial of speed of any kind between motor vehicles in any public place shall be punishable with imprisonment for a term which may extend to one month, or with a fine which may extend to five hundred rupees, or with both.

Section 190. Using vehicle in unsafe condition.

(1) Any person who drives or causes or allows to be driven in any public place a motor vehicle or trailer while the vehicle or trailer has any defect, which such person knows of or could have discovered by the exercise of ordinary care and which is calculated to render the driving of the vehicle a source of danger to persons and vehicles using such place, shall be punishable with fine which may extend to two hundred and fifty rupees or, if as a result of such defect an accident is caused causing bodily injury or damage to property, with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

(2) Any person who drives or causes or allows to be driven, in any public place a motor vehicle, which violates the standards prescribed in relation to road safety, control of noise and air-pollution,’ shall be punishable for the first offence with a fine of one thousand rupees and for any second or subsequent offence with a fine of two thousand rupees.

(3) Any person who drives or causes or allows to be driven, in any public place a motor vehicle which violates the provisions of this Act or the rules made thereunder relating to the carriage of goods which are of dangerous or hazardous nature to human life, shall be punishable for the first offence which may extend to three thousand rupees, or with imprisonment for a term which may extend to one year, or with both, and for any second or subsequent offence with fine which may extend to five thousand rupees, or with imprisonment for a term which may extend to three years, or with both.

Section 191. Sale of vehicle in or alteration of vehicle to condition contravening this Act.

Whoever being an importer of or dealer in motor vehicles, sells or delivers or offers to sell or deliver a motor vehicle or trailer in such condition that the use thereof in a public place would be in contravention of Chapter VII or any rule made thereunder or alters the motor vehicle or trailer so as to render its condition such that its use in a public place would be in contravention of Chapter VII or any rule made thereunder shall be punishable with fine which may extend to five hundred rupees:

Provided that no person shall be convicted under this section if he proves that he had reasonable cause to believe that the vehicle would not be used in a public place until it had been put into a condition in which it might lawfully be so used.

Section 192. Using vehicle without registration.

¹[192. Using vehicle without registration.

(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of section 39 shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees for a second or subsequent offence with imprisonment which may extend to one year or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both:

Provided that the Court may, for reasons to be recorded, impose a lesser punishment.

(2) Nothing in this section shall apply to the use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injuries or for the transport of food or materials to relieve distress or of medical supplies for a like purpose:

Provided that the person using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use.

(3) The Court to which an appeal lies from any conviction in respect of an offence of the nature specified in sub-section (1), may set aside or vary any order made by the Court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made.

1. Subs, by Act 54 of 1994, sec. 56, for section 192 (w.e.f. 14-11-1994).

Section 192A. Using vehicle without permit.

¹[192A. Using vehicle without permit.

(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of sub-section (1) of section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than three months or with fine which may extend lo ten thousand rupees but shall not be less than five thousand rupees or with both:

Provided that the court may for reasons to be recorded, impose a lesser punishment.

(2) Nothing in this section shall apply to the use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injury or for the transport of materials for repair or for the transport of food or materials to relieve distress or of medical supplies for a like purpose:

Provided that the person using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use.

(3) The court to which an appeal lies from any conviction in respect of an offence of the nature specified in sub-section (1), may set aside or vary any order made by the court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made.]

1. Subs, by Act 54 of 1994, sec. 56, for section 192 (w.e.f. 14-11-1994).

Section 193. Punishment of agents and canvassers without proper authority.

Whoever engages himself as an agent or canvasser in contravention of the provisions of section 93 or of any rules made thereunder shall be punishable for the first offence with fine which may extend to one thousand rupees and for any second or subsequent offence with imprisonment which may extend to six’, months, or with fine which may extend to two thousand rupees, or with both.

Section 194. Driving vehicle exceeding permissible weight.

¹[(1) Whoever drivers I a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of section 113 or section 114 or section 115 shall be punishable with minimum fine of two thousand rupees and an additional amount of one thousand rupees per tonne of excess load, together with the liability to pay charges for off-loading of the excess load].

(2) Any driver of a vehicle who refuses to stop and submit his vehicle to weighing after being directed to do so by an officer authorised in this behalf under section 114 or removes or causes the removal of the load or part of it prior to weighing shall be punishable with fine which may extend to three thousand rupees.

1. Subs, by Act 54 of 1994, sec. 57, for sub-section (1) (w.e.f. 14-11-1994).

Section 195. Imposition of minimum fine under certain circumstances.

(1) Whoever having been convicted of an offence under this Act or the rules made thereunder commits a similar offence on a second or subsequent occasion within three years of the commission of the previous offence, no Court shall, except for reasons to be recorded by it in writing, impose on him a fine of less than one-fourth of the maximum amount of the fine imposable for such offence.

(2) Nothing in sub-section (1) shall be construed as restricting the power of the Court from awarding such imprisonment as it considers necessary in the circumstances of the case not exceeding the maximum specified in this Act in respect of that offence

Section 196. Driving uninsured vehicle.

Whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of section 146 shall be punishable with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

Section 197. Taking vehicle without authority.

(1) Whoever takes and drives away any motor vehicle without having either the consent of the owner thereof or other lawful authority shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both:

Provided that no person shall be convicted under this section if the Court is satisfied that such person acted in the reasonable belief that he had lawful authority or in the reasonable belief that the owner would in the circumstances of the case have given his consent if he had been asked therefor.

(2) Whoever, unlawfully by force or threat of force or by any other form of intimidation, seizes or exercises control of a motor vehicle, shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

(3) Whoever attempts to commit any of the acts referred to in sub-section (1) or sub-section (2) in relation to any motor vehicle, or abets the commission of any such act, shall also be deemed to have committed an offence under sub-section (1) or, as the case may be, sub-section (2).

Section 198. Unauthorised interference with vehicle.

Whoever otherwise than with lawful authority or reasonable excuse enters or moves any stationary motor vehicle or tampers with the brake or any part of the mechanism of a motor vehicle shall be punishable with fine which may extend to one hundred rupees.

Section 199. 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 contravention and shall be liable to be proceeded against and punished accordingly:

Provided that nothing in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything .contained in sub-section (1), where an offence under this Act has been committed by a company, and it is proved that the offence was 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 200. Composition of certain offences.

(1) Any offence whether committed before or after the commencement of this Act punishable under section 177, section 178, section 179, section 180, section 181, section 182, sub-section (1) or sub-section (2) of section 183, section 184, section 186, 1[section 189, sub-section (2) of section 190]; section 191, section 192, section 194, section 196, or section 198, may either before or after the institution of the prosecution, be compounded by such officers or authorities and for such amount as the State Government may, by notification in the Official Gazette, specify in this behalf.

(2) Where an offence has been compounded under sub-section (1) the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence.

1. Subs. by Act 54 of 1994, sec. 58, for “section 189″ (w.e.f. 14-11-1994).

Section 201. Penalty for causing obstruction to free flow of traffic.

(1) Whoever keeps a disabled vehicle on any public place, in such a manner, so as to cause impediment to the free flow of traffic, shall be liable for penalty up to fifty rupees per hour, so long as it remains in that position:

Provided that the vehicle involved in accidents shall be liable for penalty only from the time of completion of inspection formalities under the law:

¹[Provided further that where the vehicle is removed by a Government agency, towing charges shall be recovered from the vehicle owner or person in-charge of such vehicle.]

²[(2) Penalties or towing charges under this section shall be recovered by such officer or authority as the State Government may, by notification in the Official Gazette, authorise.]

1. Ins. by Act 54 of 1994, sec. 59 (w.e.f. 14-11-1994).

2. Subs. by Act 54 of 1994, sec. 59, for sub-section (2) (w.e.f. 14-11-1994)

Section 202. Power to arrest without warrant.

(1) A police officer in uniform may arrest without warrant any person who in his presence commits an offence punishable under section 184 or section 185 or section 197:

Provided that any person so arrested in connection with an offence punishable under section 185 shall, within two hours of his arrest, be subjected to a medical examination referred to in sections 203 and 204 by a registered medical practitioner failing which he shall be released from custody.

¹[(2) A police officer in uniform may arrest without warrant any person, who has committed an offence under this Act, if such person refuses to give his name and address.]

(3) A police officer arresting without warrant the driver of a motor vehicle shall if the circumstances so require take or cause to be taken any steps he may consider proper for the temporary disposal of the vehicle.

1. Subs. by Act 54 of 1994, sec. 60, for sub-section (2) (w.e.f. 14-11-1994).

Section 203. Breath tests.

¹[(1) A police officer in uniform or an officer of the Motor Vehicles Department, as may be authorised in this behalf by that Department, may require any person driving or attempting to drive a motor vehicle in a public place to provide one or more specimens of breath for breath test there or nearby, if such police officer or officer has any reasonable cause to suspect him of having committed an offence under section 185:

Provided that requirement for breath test shall be made (unless, it is made) as soon as reasonably practicable after the commission of such offence.]

(2) If a motor vehicle is involved in an accident in a public place and a police officer in uniform has any reasonable cause to suspect that the person who was driving the motor vehicle at the time of the accident had alcohol in his blood or that he was driving under the influence of a drug referred to in section 185 he may require the person so driving the motor vehicle, to provide a specimen of his breath for a breath test-

(a) in the case of a person who is at a hospital as an indoor patient, at the hospital,

(b) in the case of any other person, either at or near the place where the requirement is made, or, if the police officer thinks fit, at a police station specified by the police officer:

Provided that a person shall not be required to provide such a specimen while at a hospital as an indoor patient if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or objects to the provision of a specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient.

(3) If it appears to a police officer in uniform, in consequence of a breath test carried out by him on any person under sub-section (1) or sub-section

(2) that the device by means of which the test has been carried out indicates the presence of alcohol in the person’s blood, the police officer may arrest that person without warrant except while that person is at a hospital as an indoor patient.

(4) If a person, required by a police officer under sub-section (1) or subsection (2) to provide a specimen of breath for a breath test, refuses or fails to do so and the police officer has reasonable cause to suspect him of having alcohol in his blood, the police officer may arrest him without warrant except while he is at a hospital as an indoor patient.

(5) A person arrested under this section shall while at a police station, be given an opportunity to provide a specimen of breath for a breath test there.

(6) The results of a breath test made in pursuance of the provisions of this section shall be admissible in evidence.

Explanation.-For the purposes of this section “breath test”, means a test for the purpose of obtaining an indication of the presence of alcohol in a person’s blood carried out on one or more specimens of breath provided by that person, by means of a device of a type approved by the Central Government by notification in the Official Gazette, for the purpose of such a test.

1. Subs. by Act 54 of 1994, sec. 61, for sub-section (1) (w.e.f. 14-11-1994).

Section 204. Laboratory test.

(1) A person who has been arrested under section 203 may, while at a police station be required by a police officer to provide to such registered medical practitioner as may be produced by such police officer, a specimen of his blood for a laboratory test if,-

(a) it appears to the police officer that the device, by means of which breath test was taken in relation to such person, indicates the presence of alcohol in the blood of such person, or

(b) such person, when given the opportunity to submit to a breath test, has refused, omitted or failed to do so:

Provided that where the person required to provide such specimen is a female and the registered medical practitioner produced by such police officer is a male medical practitioner, the specimen shall be taken only in the presence of a female, whether a medical practitioner or not.

(2) A person while at a hospital as an indoor patient may be required by a police officer to provide at the hospital a specimen of his blood for a laboratory test-

(a) if it appears to the police officer that the device by means of which test is carried out in relation to the breath of such person indicates the presence of alcohol in the blood of such person, or

(b) if the person having been required, whether at the hospital or elsewhere, to provide a specimen of breath for a breath test, has refused, omitted or failed to do so and a police officer has reasonable cause to suspect him of having alcohol in his blood:

Provided that a person shall not be required to provide a specimen of his blood for a laboratory test under this sub-section if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or objects to the provision of such specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient.

(3) The results of a laboratory test made in pursuance of this section shall be admissible in evidence.

Explanation.-For the purposes of this section, “laboratory test” means the analysis of a specimen of blood made at a laboratory established, maintained or recognised by the Central Government or a State Government.

Section 205. Presumption of unfitness to drive.

In any proceeding for an offence punishable under section 185 if it is proved that the accused when requested by a police officer at any time so to do, had refused, omitted or failed to consent to the taking of or providing a specimen of his breath for a breath test or a specimen of his blood for a laboratory test, his refusal, omission or failure may, unless reasonable cause therefor is shown, be presumed to be a circumstance supporting any evidence given on behalf of the prosecution, or rebutting any evidence given on behalf of the defence, with respect to his condition at that time.

Section 206. Power of police officer to impound document.

(1) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that any identification mark carried on a motor vehicle or any licence, permit, certificate of registration, certificate of insurance or other document produced to him by the driver or person in charge of a motor vehicle is a false document within the meaning of section 464 of the Indian Penal Code, 1860 (45 of 1860) seize the mark or document and call upon the driver or owner of the vehicle to account for his possession of or the presence in the vehicle of such mark or document.

(2) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that the driver of a motor vehicle who is charged with any offence under this Act may abscond or otherwise avoid the service of a summons, seize any licence held by such driver and forward it into the Court taking cognizance of the offence and the said Court shall on the first appearance of such driver before it, return the licence to him in exchange for the temporary acknowledgment given under sub-section (3).

(3) A police officer or other person seizing a licence under sub-section (2) shall give to the person surrendering the licence a temporary acknowledgment therefor and such acknowledgment shall authorise the holder to drive until the licence has been returned to him or until such date as may be specified by the police officer or other person in the acknowledgment whichever is earlier:

Provided that if any Magistrate, police officer or other person authorised by the State Government in this behalf is, on an application made to him, satisfied that the licence cannot be, or has not been, returned to the holder thereof before the date specified in the acknowledgment for any reason for which the holder is not responsible, the Magistrate, police officer or other person, as the case may be, may extend the period of authorization to drive to such date as may be specified in the acknowledgment.

Section 207. Power to detain vehicles used without certificate of registration permit, etc.

(1) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of section 3 or section 4 or section 39 or without the permit required by sub-section (1) of section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle:

Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of section 3 or section 4 or without the permit required by sub-section (1) of section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.

(2) Where a motor vehicle has been seized and detained under sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.

Section 208. Summary disposal of cases.

(1) The Court taking cognizance of any offence (other than an offence which the Central Government may by rules specify in this behalf) under this Act,-

(i) may, if the offence is an offence punishable with imprisonment under this Act; and

(ii) shall, in any other case,

state upon the summons to be served on the accused person that he-

(a) may appear by pleader or in person; or

(b) may, by a specified date prior to the hearing of the charge, plead guilty to the charge and remit to the Court, by money order, such sum (not exceeding the maximum fine that may be imposed for the offence) as the Court may specify, and the plea of guilt indicated in the money order coupon itself:

Provided that the Court shall, in the case of any of the offences referred to in sub-section (2), state upon the summons that the accused person, if he pleads guilty, shall so plead in the manner specified in clause (b) and shall forward his driving licence to the Court with his letter containing such plea.

(2) Where the offence dealt with in accordance with sub-section (1) is an offence specified by the Central Government by rules for the purposes of this sub-section, the Court shall, if the accused person pleads guilty to the charge and forward his driving licence to the Court with the letter containing his plea, make an endorsement of such conviction on his driving licence.

(3) Where an accused person pleads guilty and remits the sum specified and has complied with the provisions of sub-section (1), or as the case may be, subsections (1) and (2), no further proceedings in respect of the offence shall be taken against him nor shall he be liable, notwithstanding anything to the contrary contained in this Act, to be disqualified for holding or obtaining a licence by reason of his having pleaded guilty.

Section 209. Restriction on conviction.

No person prosecuted for an offence punishable under section 183 or section 184 shall be convicted unless-

(a) he was warned at the time the offence was committed that the question of prosecuting him would be taken into consideration, or

(b) within fourteen days from the commission of the offence, a notice specifying the nature of the offence and the time and place where it is alleged to have been committed was served on or sent by registered post to him or the person registered as the owner of the vehicle at the time of the commission of the offence, or

(c) within twenty-eight days of the commission of the offence, a summons for the offence was served on him:

Provided that nothing, in this section shall apply where the Court is satisfied that-

(a) the failure to serve the notice or summons referred to in this subsection was due to the fact that neither the name and address of the accused nor the name and address of the registered owner of the vehicle could with reasonable diligence have been ascertained in time, or

(b) such failure was brought about by the conduct of the accused.

Section 210. Courts to send intimation about conviction.

Every Court by which any person holding a driving licence is convicted of an offence under this Act or of an offence in the commission of which a motor vehicle was used, shall send intimation to-

(a) the licensing authority which issued the driving licence, and

(b) the licensing authority by whom the licence was last renewed,

and every such intimation shall state the name and address of the holder of the licence, the licence number, the date of issue and renewal of the same, the nature of the offence, the punishment awarded for the same and such other particulars as may be prescribed.

Section 211. Power to levy fee.

Any rule which the Central Government or the State Government is empowered to make under this Act may, notwithstanding the absence of any express provision to that effect, provide for the levy of such fees in respect of applications, amendment of documents, issue of certificates, licences, permits, tests, endorsements, badges, plates, countersignatures, authorisation, supply of statistics or copies of documents or orders and for any other purpose or matter involving the rendering of any service by the officers or authorities under this Act or any rule made thereunder as may be considered necessary:

Provided that the Government may, if it considers necessary so to do, in the public interest by general or special order, exempt any class of persons from the payment of any such fee either in part or in full.

Comment / Related Citation:

Motor Vehicles Act, 1988, Sections 211 and 65 – Motor Vehicle – Registration – Additional fee – Charging of – Whether the State Government to exercise the power to charge additional fee at the time of registration of the vehicle under Section 211? – Point left open.

STATE OF U.P. AND OTHERS, ZODIAC COM SOLUTIONS (P) LTD. v/s CYBER INFOTEC AND OTHERS, STATE OF U.P. AND OTHERS [(2005) 12 SCC 390]

Section 212. Publication, commencement and laying of rules and notifications.

(1) The power to make rules under this Act is subject to the condition of the rules being made after previous publication.

(2) All rules made under this Act shall be published in the Official Gazette, and shall unless some later date is appointed, come into force on the date of such publication.

(3) Every rule made by any State Government shall be laid, as soon as may be after it is made before the State Legislature.

(4) Every rule made by the Central Government under this Act, every scheme made by the Central Government under sub-section (1) of section 75 and sub- section (1) of section 163 and every notification issued by the Central Government under sub-section (4) of section 41, sub-section (1) of section 58, subsection (1) of section 59, the proviso to sub-section (1) of section 112, ¹[sub-section (4) of section 163A] and sub-section (4) of section 213 shall be laid, as soon as may 1 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, scheme or notification or both Houses agree that the rule or scheme should not be made or the notification should not be issued, the rule, scheme or notification 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, scheme or notification.

1. Ins. by Act 54 of 1994, sec. 62 (w.e.f. 14-11-1994).

Section 213. Appointment of motor vehicles officers.

(1) The State Government may, for the purpose of carrying into effect the provisions of the Act, establish a Motor Vehicles Department and appoint as officers thereof such persons as it thinks fit.

(2) Every such officer shall be deemed to be a public servant within the meaning of the Indian Penal Code, 1860 (45 of 1860).

(3) The State Government may make rules to regulate the discharge by officers of the Motor Vehicles Department of their functions and in particular and without prejudice to the generality of the foregoing power to prescribe the uniform to be worn by them, the authorities to which they shall be subordinate, the duties to be preformed by them, the powers (including the powers exercisable by police officers under this Act) to be exercised by them, and the conditions governing the exercise of such powers.

(4) The Central Government may, having regard to the objects of the Act, by notification in the Official Gazette prescribe the minimum qualifications which the said officers or any class thereof shall possess for being appointed as such.

(5) In addition to the powers that may be conferred on any officer of the Motor Vehicle Department under sub-section (3), such officer as may be empowered by the State Government in this behalf shall also have the power to,-

(a) make such examination and inquiry as he thinks fit in order to ascertain whether the provisions of this Act and the rules made thereunder are being observed;

(b) with such assistance, if any, as he thinks fit, enter, inspect and search any premises which is in the occupation of a person who, he has reason to believe, has committed an offence under this Act or in which a motor vehicle in respect of which such offence has been committed is kept:

Provided that,-

(i) any such search without a warrant shall be made only by an officer of the rank of a gazetted officer;

(ii) where the offence is punishable with fine only the search shall not be made after sunset and before sunrise;

(iii) where the search is made without a warrant, the gazetted officer concerned shall record in writing the grounds for not obtaining a warrant and report to his immediate superior that such search has been made;

(c) examine any person and require the production of any register or other document maintained in pursuance of this Act, and take on the spot or otherwise statements of any person which he may consider necessary for carrying out the purposes of this Act;

(d) seize or take copies of any registers or documents or portions thereof as he may consider relevant in respect of an offence under this Act which he has reason to believe has been committed;

(e) launch prosecutions in respect of any offence under this Act and to take a bond for ensuring the attendance of the offender before any Court;

(f) exercise such other powers as may be prescribed;

Provided that no person shall be compelled under this sub-section to answer any question or make any statement tending to incriminate himself.

(6) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be apply to any search or seizure under this section as they apply to any search or seizure under the authority of any warrant issued under section 94 of the Code.

Section 214. Effect of appeal and revision on orders passed by original authority.

(1) When an appeal has been preferred or an application for revision has been made against any order passed by an original authority under this Act, the appeal or the application for revision shall not operate as a stay of the order passed by the original authority and such order shall remain in force pending the disposal of the appeal or the application for revision, as the case may be, unless the prescribed appellate authority or revisional authority otherwise directs.

(2) Notwithstanding anything contained in sub-section (1), if an application made by a person for the renewal of permit has been rejected by the original authority and such person has preferred an appeal or made an application for revision under this Act against such rejection, the appellate authority or, as the case may be, the revisional authority may by order direct that the permit shall, notwithstanding the expiration of the term specified therein, continue to be valid until the appeal or application for revision is disposed of.

(3) No order made by a competent authority under this Act shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings, unless it appears to the prescribed appellate authority or revisional authority, as the case may be, that such error, omission or irregularity has, in fact, occasioned a failure of justice.

Section 215. Road Safety Councils and Committees.

(1) The Central Government may, by notification in the Official Gazette, constitute for the country a National Road Safety Council consisting of a Chairman and such other members as that Government considers necessary and on such terms and conditions as that Government may determine.

(2) A State Government may, by notification in the Official Gazette, constitute for the State a State Road Safety Council consisting of a Chairman and such other members as that Government considers necessary and on such terms and conditions as that Government may determine.

(3) A State Government may, by notification in the Official Gazette, constitute District Road Safety Committee for each district in the State consisting of a Chairman and such other members as that Government considers necessary and on such terms and conditions as that Government may determine.

(4) The Councils and Committees referred to in this section shall discharge such functions relating to the road safety programmes as the Central Government or the State Government, as the case may be, may, having regard to the objects of the Act, specify.

Section 216. Power to remove difficulties.

(1) If any difficulty arises in, giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty:

Provided that no such order shall be made after the expiry of a period of three years from the date of commencement of this Act.

(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament

Section 217. Repeal and savings.

(1) The Motor Vehicles Act, 1939 (4 of 1939) and any law corresponding to that Act in force in any State immediately before the commencement of this Act in that State (hereafter in this section referred to as the repealed enactments) are hereby repealed.

(2) Notwithstanding the repeal by sub-section (1) of the repealed enactments,-

(a) any notification, rule, regulation, order or notice issued, or any appointment or declaration made, or exemption granted or any confiscation made, or any penalty or fine imposed, any forfeiture, cancellation or any other thing done or any other action taken under the repealed enactments, and in force immediately before such commencement shall, so far as it is not inconsistent with the provisions of the Act, be deemed to have been issued, made, granted, done or taken under the corresponding provision of this Act;

(b) any certificate of fitness or registration or licence or permit issued or granted under the repealed enactments shall continue to have effect after such commencement under the same conditions and for the same period as if this Act had not been passed;

(c) any document referring to any of the repealed enactments or the provisions thereof, shall be construed as referring to this Act or to the corresponding provisions of this Act;

(d) the assignment of distinguishing marks by the registering authority and the manner of display on motor vehicles in accordance with the provision of the repealed enactments shall, after the commencement of this Act, continue to remain in force until a notification under subsection (6) of section 41 of this Act is issued;

(e) any scheme made under section 68C of the Motor Vehicles Act, 1939 (4 of 1939) or under the corresponding law, if any, in force in any State and pending immediately before the commencement of this Act shall be disposed of in accordance with the provisions of section 100 of this Act;

(f) the permits issued under sub-section (1A) of section 68F of the Motor Vehicles Act, 1939 (4 of 1939) or under the corresponding provision, if any, in force in any State immediately before the commencement of this Act shall continue to remain in force until the approved scheme under Chapter VI of this Act is published.

(3) Any penalty payable under any of the repealed enactments may be recovered in the manner provided by or under this Act, but without prejudice to any action already taken for the recovery of such penalty under the repealed enactments.

(4) The mention of particular matters in this section shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals.

Comment / Related Citation:

Motor Vehicle Act, 1988, Sections 166, 147,157 and 217 – MACT – Liability of insurer – Gratuitous passenger – Whether a statutory insurance policy under Motor Vehicles Act, 1988, intended to cover the risk to life or damage to properties of third parties, would cover the risk of death or injury to a gratuitous passenger carried in a private vehicle – Held, no – Observations made in Asha Rani’s case were in connection with carrying passengers in goods vehicle – Same would apply with equal force to gratuitous passengers in other vehicle also – Insurance policy, statutory policy – It owed no liability towards the injuries suffered by the deceased who was a pillion rider

UNITED INDIA INSURANCE CO. LTD., SHIMLA v/s TILAK SINGH AND OTHERS [AIR 2006 SC 1576 = (2006) 4 SCC 404 = 2006 (3) SCR 758 = JT 2006 (4) SC 280 = (2006) 4 Scale 67 = (2006) 2 SCC(Cri) 344]

&

Motor Vehicles Act, 1939 Section 95(2)-Motor Vehicles Act, 1988 Sections 147, 217-It is quite clear that sub-section (2) of Section 147 of the New Act directs that subject to proviso to sub-section (1), a statutory policy shall cover the amount of liability incurred except in respect of damage to any property of a third party for which a limit of rupees six thousand is specified. A careful reading of the proviso to sub-section (2) discloses that any policy of insurance, issued with any limited liability and in force immediately before the commencement of the New Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

NATIONAL INSURANCE COMPANY LTD. v/s BEHARI LAL AND OTHERS [AIR 2000 SC 3053 = (2000) 7 SCC 137 = JT 2000 (10) SC 39 = (2000) 6 Scale 177 = 2000 AIR(SCW) 3352 = (2000) 5 Supreme 747 = (2000) 1 SCC(Cri) 1319 = 2000 (Supp2) SCR 698]

Section 217A. Renewal of permits, driving licences and registration granted under the Motor Vehicles Act, 1939.

¹[217A. Renewal of permits, driving licences and registration granted under the Motor Vehicles Act, 1939.

Notwithstanding the repeal by subsection (1) of section 217 of the enactments referred to in that sub-section, any certificate of fitness or registration or licence or permit issued or granted under the said enactments may be renewed under this Act.]

1. Ins. by Act 27 of 2000, sec. 5 (w.e.f. 11-8-2000).

SCH1. The First Schedule

¹[THE FIRST SCHEDULE

MANDATORY SIGNS OF THE FIRST SCHEDULE OF THE MOTOR VEHICLES ACT, 1988

1. The Schedule subs, by S.O.475(E), dated 21 st June, 1989 (w.e.f. 1 -7-1989) and renumbered as the First Schedule by act 54 of 1994, sec. 63 (w.e.f. 14-11-1994).

SCH2. The Second Schedule

¹[THE SECOND SCHEDULE

(See section 163A)

SCHEDULE FOR COMPENSATION FOR THIRD PARTY FATAL ACCIDENT/INJURY CASES CLAIMS

1. Fatal Accidents:

Note: The amount of compensation so arrived at in the case of fatal accident claims shall be reduced by l/3rd in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive.

2. Amount of compensation shall not be less than Rs. 50,000.

3. General Damage (in case of death):

The following General Damages shall be payable in addition to compensation outlined above:

(i) Funeral expenses -Rs. 2,000/-

(ii) Loss of Consortium, if beneficiary is the spouse -Rs. 5,000/-

(iii) Loss of Estate -Rs. 2,500/-

(iv) Medical Expenses-Actual expenses incurred before death supported by bills/vouchers but not exceeding -Rs. 15,000/-

4. General Damages in case of Injuries and Disabilities:

(i) Pain and Sufferings

(a) Grievous injuries -Rs. 5,000/-

(b) Non-grievous injuries -Rs. 1,000/-

(ii) Medical Expenses-Actual expenses incurred supported by bills/vouchers but not exceeding as one time payment -Rs. 15,000/-

5. Disability in non-fatal accidents:

The following compensation shall be payable in case of disability to the victim arising on of non-fatal accidents: Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.

PLUS either of the following:-

(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or

(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.

Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen’s Compensation Act, 1923.

6. Notional income for compensation to those who had no income prior to accident:-

Fatal and disability in non-fatal accidents:-

(a) Non-earning persons -Rs. 15,000 p.a

(b) Spouse -Rs. l/3rd of income of the earning/surviving spouse.

In case of other injuries only “General Damage” as applicable.]

1. Ins. by Act 54 of 1994, sec. 64 (w.e.f. 14-11-1994).

Comment / Related Citation:

Motor Vehicles Act, 1988, Second Schedule – MACT – Compensation – Loss of income - Multiplier – Serious injuries in motor accident on left hand and right leg -Rod had to be inserted – Permanent disability assessed at 35% -Appellant’s income determined at Rs. 3,000/- p.m. – As he was aged 25 years multiplier of 17 should be applied – Calculating the amount of compensation on that basis he was entitled to Rs. 2,14,000/- towards loss of income instead of lump sum compensation of Rs. 1,75,000/- awarded by the High Court – He would also be entitled to medical expenses incurred by him and compensation on other heads would be granted to him as awarded by the Tribunal.

REJENDRA v/s PRADEEP AND OTHERS  [2009(13) SCALE 13]

&

Motor Vehicles Act, 1988, Section 163-A and Sch.II – MACT – Section 163A – Nature and scope - Invoking of provision - Not necessary for claimant to establish any act of negligence on the part of driver – Not necessary even to plead that the death occurred owing to any wrongful act or neglect or default of owner of the vehicle – Quantum of compensation to be determined in terms of Schedule II appended thereto – Apart from amount of compensation only funeral expenses, loss of consortium (if beneficiary is the spouse), loss of estate, medical expense, would be payable – Schedule provides structured formula – It stipulates reduction of income of deceased by one-third in consideration of expenses which he would have incurred towards maintaining himself, had he been alive.

BANGALORE METROPOLITAN TPT. CORP. v/s SAROJAMMA & ANR. [AIR 2008 SC 3244 = (2008) 5 SCC 142 = JT 2008 (6) SC 63 = 2008 AIR(SCW) 5480 = 2008 (2) SCR 275 = (2008) 2 Scale 211 = (2008) 2 SCC(Cri) 545]

SCH2. THE SECOND SCHEDULE

Note: The amount of compensation so arrived at in the case of fatal accident claims shall be reduced by l/3rd in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive.

2. Amount of compensation shall not be less than Rs. 50,000.

3. General Damage (in case of death):

The following General Demages shall be payable in addition to compensation outlined above:

(i) Funeral expenses -Rs. 2,000/-

(ii) Loss of Consortium, if beneficiary is the spouse -Rs. 5,000/-

(iii) Loss of Estate -Rs. 2,500/-

(iv) Medical Expenses-Actual expenses incurred before death supported by bills/vouchers but not exceeding -Rs. 15,000/-

4. General Damages in case of Injuries and Disabilities:

(i) Pain and Sufferings

(a) Grievous injuries -Rs. 5,000/-

(b) Non-grievous injuries -Rs. 1,000/-

(ii) Medical Expenses-Actual expenses incurred supported by bills/vouchers but not exceeding as one time payment -Rs. 15,000/-

5. Disability in non-fatal accidents:

The following compensation shall be payable in case of disability to the victim arising on of non-fatal accidents: Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.

PLUS either of the following:-

(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or

(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.

Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen’s Compensation Act, 1923.

6. Notional income for compensation to those who had no income prior to accident:-

Fatal and disability in non-fatal accidents:-

(a) Non-earning persons -Rs. 15,000 p.a

(b) Spouse -Rs. l/3rd of income of the earning/surviving spouse.

In case of other injuries only “General Damage” as applicable.]

1. Ins. by Act 54 of 1994, sec. 64 (w.e.f. 14-11-1994).

Delhi Sales Tax Act

November 30, 2014

Section 1. Short title, extent and commencement.

(1) This Act may be called the Delhi Sales Tax Act, 1975.

(2) It extends to the whole of the National Capital Territory of Delhi.

(3) It shall come into force on 3[such date] as the Administrator may, by notification in the Official Gazette, appoint.

Section 2. Definitions:

In this Act, unless the context otherwise requires:-

(a) “Lieutenant. Governor” means Administrator of National Capital Territory of Delhi as appointed by the President under Article 239 of the Constitution.

(b) “Appellate Tribunal” means the Appellate Tribunalconstituted under section 13;

(c) “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 ancillary to, such trade, commerce, manufacture, adventure or concern.

(d) “Commissioner” means the the Commissioner of Sales Tax appointed under sub-section (1) of section 9.

(e) ” Dealer” means any person who carries on business of selling goods in Delhi and it includes:-

(i) the Central Government or the State Government carrying on such business,

(ii) an incorporated society (including a co-operative society); Club or Association which sells or supplies goods whether or not in the course of
business to its members for cash or for deffered payment or for commission, remuneration or other valuable consideration;

 (iii) a manager, factor, broker, commission agent or any del credere or any mercantile agent,by whatever named called, and whether of the same
description as herein before mentioned or not, who sells goods belonging to any principal whether disclosed or not , and

(iv) an auctioner who sells or auctions 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;

(f) “Delhi” means the 5[National Capital Territory] of Delhi;

(g) “Goods” includes all materials, articles, commodities and all other kinds of movable property, but does not include newspaper, claim stocks,  shares, securities or money.

 (h) “Manufacture”, with its grammatical variations and cognate expressions, means producing, making, extracting, altering, ornamenting, finishing or otherwise processing, treating or adapting any goods, but does not include any such process or mode of manufacture as prescribed.

(i) “Official Gazette” means the Delhi Gazette.

(j) “prescribed” means prescribed by rules;

(k) “registered ” means a dealer registered under this Act;

(l) “Sale” means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration and includes-

(i) A transfer of goods on hire purchase or other system of payment by instalments, but does not include a mortgage or hypothecation of or a
charge or pledge on goods;

(ii) Supply of goods by a society (including a Co-Operative Society), club, firm or any association to its members for cash or deferred payment, or for commission, remuneration or other valuable consideration, whether or not in course of business; and

(iii) Transfer of goods by an auctioner referred to in sub-clause (iv) of clause (e);

(m) Sale Price means the amount payable to the dealer as consideration for the sale of any goods including any sum charged for anything done by
the dealer in respect of the goods at the time of or before the delivery of the goods other than the cost of freight or delivery or the cost of installation, but less the sum which is allowed as cash discount on that good.

(n)”tax” means the tax payable under this Act;

(o) “turnover ” means the aggregate of the amount of sale price receivable, or if adelear so elects, actually received by a dealer in respect of any sale of property in goods, made during any prescribed period in any year after deducting the amount of sale price, if any, refunded by the delear to a purchaser in respect of any goods purchased and returned by the purchaser within the prescribed period;

PROVIDED that an election as aforesaid once made shall not be altered except with the permission of the Commissioner and on such terms and conditions, as he may think fit to impose;

(p)”year” means the financial year

CHAPTER-II. Incidence and Levy of Tax

Section 3. Incidence of tax.

(1) Every dealer whose turnover of sales during the year immediately preceding the commencement of this Act exceeds the taxable quantum and every dealer who at the commencement of Act,is registered or liable to pay tax under Central Sales Tax Act,1956 (74 of 1956) shall be liable to pay tax under this Act on all sales effected by him on or after such commencement

(2) Every dealer to whom sub-section (1) does not apply, shall:

(i) with effect from the date immediately following the day on which his turnover calculated from the commencement of any year first exceeds, within such year, the taxable quantum, be liable to pay tax under this Act on all sales effected by him after that day.

(ii) if he becomes liable to pay tax under the Central Tax Act, 1956 (74 of 1956) or is registered as a dealer under the said act at any time after the commencement of of this Act, be liable to pay tax on all tax on all sales affected by him or on his behalf within Delhi on or after the date he become so liable or is registered under the said Act, whichever is earlier

(3) Every dealer who becomes liable to pay tax under this Act, shall continue to be so liable until the expiry of three consecutive years during each of which his turnover has failed to exceed the taxable quantum and such further period after the date of such expiry may be prescribed and on
the expiry of such further period his liability to pay tax shall cease:

PROVIDED that any dealer may, after the expiry of one-year following the year in which his turnover has failed to exceed the taxable quantum, apply for the cancellation of his certificate of registration, and on such cancellation, his liability to pay tax shall cease:

 PROVIDED FURTHER that in respect of any goods purchased by any dealer before the date of any cancellation and remaining unsold or unutilised for the purpose for which they are purchased , he shall be liable to pay so much of tax as would have been payable had he not been registered as a dealer on the date

(4) Every dealer whose liability to pay tax under this Act has ceased under sub-section (3),shall,if his turnover calculated from the commencement of any year again exceeds the taxable quantum, on any day within such year, be liable to pay such tax with effect from the date immediately following the day on which his turnover first exceeds the taxable quantum, on all sales affected by him after that day.

(5) Any dealer whose certificate of registration has been canceled under sub-section (3) of section 20,shall:

(i) if his turnover calculated from the date of cancellation of such certificate exceeds the taxable quantum on any day within the year ; or

(ii) if his turnover calculated from the commencement of any subsequent year, exceeds the taxable quantum on any day within the year ; be liable to pay tax under this Act with effect from the date immediately following the day on which such turn over again first exceed the taxable quantum on all sales effected by him after that day of goods imported by him from outside Delhi or manufactured by him in Delhi or purchased by him without payment of tax leviable under this Act.

(6) No dealer who deals exclusively on one or more classes of goods specified in the Third Schedule shallbe liable to pay any tax under this Act.

(7) For the purposes of this Act, “taxable quantum” means,

(a) in relation to any dealer who imports for sale any goods into Delhi – Nil,

(b) in relation to any dealer who manufactures goods for sale regardless of the value of goods manufactured – [Rs. 2,00,000-00] ¹,

(c) in relation to any other dealer – [4,00,000-00] ²;

PROVIDED that if the ³[Lieutenant Governor] is of opinion that having regard to the difficulty in maintaining accounts or for other sufficient cause, the taxable quantum in respect of any class of dealers falling under clause (b) or (c) should be increased, the ⁴[Lieutenant Governor] may, by notification in the official Gazette, fix in respect of such class of dealers such taxable quantum, not exceeding ⁵[5,00,000 for clause (b) and Rs. 10,00,000] for clause (c), as may be specified in the notification.

⁶[Explanation. – For the purpose of computation of taxable quantum under sub-section (7), the turnover of sales effected by a dealer shall be
taken into account irrespective of whether such sales are taxable under this Act or not.]

 1. Increased from Rs. 1,00,000/- vide Notification No. F.101(48)/2001-Fin(A/Cs)138-146 dated 31.3.2001 w.e.f. 1.4.2001; earlier raised from Rs.30,000/- to Rs. 1,00,000/- vide Delhi Sales Tax    Amendment Act 1994 w.e.f. 8.4.1994.

2. Increased from Rs. 2,50,000/- vide Notification No. F.101(48)/2001-Fin(A/Cs)138-146 dated 31.3.2001 w.e.f. 1.4.2001; earlier raised from Rs.1,00,000/- to Rs. 2,50,000/- vide Delhi Sales Tax    Amendment Act 1994 w.e.f. 8.4.1994.

3. Subs. By Notification No. F.4/(120)/94 Fin.(G)/2137 to 2145 dated 2.3.1998; Delhi Act 1 of 1998, for “Union Territory” (w.e.f 2-3-1998).

4. Subs. By Notification No. F.4/(120)/94 Fin.(G)/2137 to 2145 dated 2.3.1998; Delhi Act 1 of 1998, for “Union Territory” (w.e.f 2-3-1998).

5. Subs. for the word “Rs. 2.50 lacs for clause (b) and Rs. 5.00 lacs ” by Delhi Sales Tax (Second Amendment) Act 2000, dt. 19.2.2001 w.e.f 8-4-1994.

6. Subs. by Delhi Sales Tax (Amendment) Act, 1994 w.e.f. 8-4-1994, and again by Delhi Sales Tax (Second Amendment) Act, 2000, dt. 19.2.2001 w.e.f. 8.4.1994.

CHAPTER-II. Incidence and Levy of Tax

Section 4. Rate of tax

(1) The tax payable by a dealer under this Act shall be levied -

(a) ¹[ in the case of taxable turnover in respect of the goods specified in the first schedule, at the rate of twelve paise per rupee].

(b) in the case of taxable turnover inrespect of the goods specified in the second schedule, at such rate not exceeding four paise in a rupee as the ²[Lieutenant Governor] may, from time to time , by notification in the official Gazette, determine;

(C) in the case of taxable turnover in respect of any food or drink served for consumption in a hotel or restaurant or part thereof, with which a cabaret floor show or similar entertainment is provided therein, at the rate of forty paise in a rupee;

(d) ³[ (cc) in the case of taxable turnover in respect of the goods specified in the forth schedule, at the rate of twenty paise in a rupee.] (CCC) ⁴[***]

(i) in the case of taxable turnover of any other goods , at the rate of ⁵[eight paise] in a rupee;

PROVIDED that the ⁶[Lieutenant Governor] may ⁷[***] by notification in the Official Gazette, add to or omit from, or otherwise amend, the First Schedule, the Second Schedule or the Forth Schedule,either retrospectively or prospectively, and there upon the First Schedule, the Second Schedule ⁸[ or the case may be the Forth Schedule], shall be deemed to be amended accordingly:

PROVIDED FURTHER that no such amendment shall be made retrospectively if it would have the effect of prejudicially affecting the interest of any dealer:

PROVIDED ALSO that in respect of any goods or class of goods the ⁹[Lieutenant Governor] is of opinion that it is expedient in the interest of the general public so to do, he may ¹⁰[***] by notification in the Official Gazette, direct that the tax in respect of taxable turnover of such goods or class of goods shall, subject to such conditions may be specified, be levied at such modified rate not exceeding the rate applicable under this section , as may be specified in the notification.

(2) For the purposes of this Act, “taxable turnover” means that part of a dealer’s turnover during the prescribed period in any year which remains
after deducting there from :-

(i) sale of goods, the point of sale at which such goods shall be taxable is specified by the ¹¹[Lieutenant Governor] under section 5 and in respect of which due tax is shown to the satisfaction of the commissioner to have been paid;

(ii) sale of goods declared tax-free under section 7;

(iii) sale of goods not liable to tax under section 8;

(iv) sale of goods which are proved to the satisfaction of the commissioner to have been purchased within a period of twelve months prior to the date of registration of the dealer and subjected to tax under the Bengal Finance (Sales Tax) Act,1941 (Bengal Act VI of 1941),as it wasthen in force, or under this Act;

(v) sale of registered dealer -

(A) of goods of the class or classes specified in the certificate of registration of such dealer,as being intended for use by him as raw materials in manufacture in Delhi of any goods, other than specified in the Third Schedule or news papers, -

(1) for sale by him inside Delhi; or

(2) for sale by him in the course of inter-State trade or commerce being a sale occasioning, or effected by transfer of documents of title of such goods during the movement of such goods from Delhi; or

(3) for sale by him in the course of export outside India being a sale occasioning the movements of such goods from Delhi, or a sale affected
by transfer of documents of title to such goods effected during the movement of such goods from Delhi, to a place outside India and after the goods have crossed the customs frontiers of India; or

(B) of goods of the class or classes specified in the certificate of the registration of such dealer as being intend for resale by him in Delhi, or for sale by him in the course of inter-state trade or commerce or in the course of export outside India in the manner specified in sub-item (2) or sub-item (3) (A), as the case may be; and

(C) of containers or other materials, used for the packing of goods, of the class or classes specified in the certificate of registration of such dealer, other than goods specified in the Third Schedule, intended for sale or resale;

(vi) such other sales as are exempt from payment of tax under section 66 or as may be prescribed :

PROVIDED that no deduction in respect of any sale referred to in subclause (iv) shall be allowed unless the goods, in respect of which deduction is claimed, are proved to have been sold by the dealer within a period of twelve months from the date of his registration and the claim for such deduction is included in the return required to be furnished by the dealer in respect of the said sale:

¹²[PROVIDED FURTHER that no deduction in respect of any sale referred to in sub-clause(v) shall be allowed unless a true declaration duly filled and signed by the registered dealer to whom the goods are sold and containing the prescribed particulars in the prescribed form obtainable from the prescribed authority in the manner and subject to such condition as may be prescribed is furnished in the prescribed manner and within the prescribed time, by the dealer who sells the goods:]

PROVIDED ALSO that where any goods are purchased by a registered dealer for any of the purposes mentioned in sub-clause (v), but are not so utilised by him, the price of the goods so purchased shall shall be allowed to be deducted from the turnover of the selling dealer but shall be included in the taxable turnover of the purchasing dealer; and

 (b) the tax collected by the dealer under this Act as such and shown separately in cash memoranda or bills, as the case may be.

1. Rate of tax on goods under the First Schedule have been varied by Notification No. F.4(44)/90-Fin.(G) (ii) dated 8th February, 1993, Notification No. 4(11)/94-Fin.(G)(I), dated 19th May     194, Notification No. F.4(11)/94-Fin.(G), dated 2nd June 194, Notification No. F.4(1)/(99)-Fin. (G)(ii). dated March 31, 1999, etc.

2. Subs. by Notification No. F.4/(120)/94 Fin.(G)/2137 to 2145 dated 2.3.1998; Delhi Act 1 of 198, for “Union Territory” (w.e.f. 2-3-1998).
3. Subs. by Delhi Sales Tax (Amendment) Avt, 2000 w.e.f. 6-1-2000 for “lottery tickets at the rate of twenty paise in the rupee” [Inserted by Delhi Sales Tax (Second Amendment) Act,     1994 w.e.f. 3-12-1994].

4. Omitted by Delhi Sales Tax (Amendment) Act, 2000, w.e.f. 6-1-2000 earlied read as “in the case of taxable turnover in respect of liquor (foreign and Indian made foreign liquor) at the     rate of fifteen paise in the rupee”.
5. Subs. by No. F.4(52)/99-Fin(G)(viii)/1564 dt. 15.1.2000 w.e.f. 16-1-2000.
6. Subs. for “Central Government” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.

7. Words “with the previous approval of the Central Government and” deleted by Delhi Act 1 of 1998 w.e.f. 2.3.1998.

8. Inserted by The Delhi Sales Tax (Amendment) Act, 2000, w.e.f. 6-1-2000.

9. Subs for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.

10. Words “with the previous approval of the Central Government and” deleted by Delhi Act 1 od 1998, (w.e.f. 2.3.1998).

11. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.

12. Subs. by Delhi Sales Tax (Second Amendment) Act, 2000, dt. 19.2.2001 w.e.f. 19.2.2001 for “PROVIDED FURTHER that no deduction in respect of any sale referred to in sub-clause     (iv)shall be allowed unless a true declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in the particulars in the     prescribed form obtainable from obtainable from the prescribed authority is furnished in the prescribed manner and within the prescribed time, by the dealer who sells the goods.”

CHAPTER-II. Incidence and Levy of Tax

Section 5. Power of Administrator to prescribe points at which goods may be taxed

Notwithstanding anything contained in the Act, the ¹[Lieutenant Governor] may, be notification in the Official Gazette and subject to such conditions, if any, as may be specified therein, specify the point of sale at which any goods or class of goods may be taxed, and on the issue of such notification, the points of sale in relation to any such goods or class of goods other than the point of sale so notified, shall be exempt from payment of tax under this Act:

²[PROVIDED that no such exemption shall be allowed unless a true declaration duly filled and signed by the registered dealer by whom the goods are sold and containing the prescribed particulars in the prescribed form obtainable form the prescribed authority in the manner and subject to such conditions as maybe prescribed is furnished in the prescribed manner and within the prescribed time, by dealer who purchases the goods.]

PROVIDED FURTHER that the Administrator may, if he is of opinion that it is necessary in public interest so to do, by notification in the Official Gazette, exempt, subject to such restrictions and conditions as may be specified therein, any dealer or class of dealers from furnishing a declaration under the first provison

1. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
2. Subs. by Delhi Sales Tax (Second Amendment) Act, 2000, dt. 19.2.2001 w.e.f. 19.2.2001 for “PROVIDED that no such exemption shall be allowed unless a true declaration duly filled and signed by the registered dealer by whom the goods are sold and containing the prescribed particulars in the prescribed form the prescribed authority is furnished in the prescribed manner and within the prescribed time, by who purchases the goods.”

CHAPTER-II, Incidence and Levy of Tax

Section 6. Burden of proof

The burden of proving that in respect of any sale effected by a dealer he is not liable to pay tax under this Act shall lie on him.

CHAPTER-II, Incidence and Levy of Tax

Section 7. Tax-free goods

(1) No tax shall be payable under this Act on the sale of goods specified in the Third Schedule subject to the conditions and exceptions, if any, set out therein.

(2) The ¹[Lieutenant Governor may] by notification in the Official Gazette, add to, or omit from, or otherwise amend, the Third Schedule either retrospectively or prospectively, and thereupon the Third Schedule shall be deemed to be amended accordingly :

PROVIDED that no such amendment shall be made retrospectively if it would have the effect of prejudicially affecting the interests of any dealer.

 1. Subs. for “Administrator may with the previous approval of the Central Government and” by Delhi Act 1 of 1998, w.e.f. 2.3.1998

CHAPTER II- Incidence and Levy of Tax

Section 8. Certain sales and purchases not liable to tax

Nothing in this Act or the rules made thereunder shall be deemed to impose, or authorise the imposition of a tax on any sale or purchase of any goods when such sale or purchase takes place-

(i) In the course of inter-state trade or commerce, or

(ii) Outside Delhi, or

(iii) In the course of the import of the goods into or export of the goods out of the territory of India

 Explanation- Section 3,4 and 5 of the Central Sales Tax Act, 1956 (74 of 1956) shall apply for determining whether or not a particular sale or purchase takes place in the manner indicated in clause (i), clause (ii) or clause (iii) of this section.

CHAPTER III- Sales Tax Authorities and Appellate Tribunal

Section 9. Sales tax authority

(1) For carrying out the purposes of this Act, the ¹[ Lieutenant Governor] shall appoint a person to be the Commissioner of Sales Tax.

(2) To assist the Commissioner in execution of his functions under this Act, the ²[ Lieutenant Governor] may appoint as many Additional Commissioners of Sales Tax, Sales Tax Officers and such other persons with such designations as the Administrator thinks necessary.

(3) The Commissioners shall have jurisdiction over the whole of Delhi and the other persons appointed under sub-section (2) shall have jurisdiction over such areas as Commissioner may specify.

(4) The Commissioner and other persons appointed under sub-section (2) shall exercise the powers may be conferred, and perform the duties as required by or under this Act.

 1. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
2. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998

CHAPTER III- Sales Tax Authorities and Appellate Tribunal

Section 10. Delegation of Commissioner’s powers

Subject to such restrictions and conditions as may be prescribed, the Commissioner may by order in writing delegate any of his powers under this Act except those under sub-section (3) of section 9 and sub section (1) of section 52 to any person appointed under sub-section (2) of section 9.

PROVIDED that the powers of the Commissioner under clauses (i) to (vi) (both inclusive) of sub-section (3) of section 41 shall not be delegated to any person lower in rank than that of a Sales Tax Officer, and those under sub-section (1) of section 49 shall not be delegated to any person other than an Additional Commissioner of Sales Tax appointed under sub-section (2) of section 9.

CHAPTER III- Sales Tax Authorities and Appellate Tribunal

Section 11. Power to transfer Proceedings

(1) The Commissioner may, by order in writing, transfer any proceedings or class of proceedings under any provision of this Act from any person appointed under sub-section (2) of section 9 to any other person so appointed whether or not such other person has jurisdiction in respect of the area to which such proceedings or class of Proceeding relate, and the Commissioner may likewise transfer any such proceedings (including a proceeding already transferred under this section) from any such person to himself.

(2) The person to whom any proceeding is transferred under sub-section (1) shall proceed to dispose it of as if it had been initiated by himself.

 (3) The transfer of a proceeding shall not render necessary the reissue of any notice already issued before such transfer and the person to whom the proceeding is transferred may, in his discretion, continue, continue it from the stage at which it was left by the person from whom it was transferred.

 Explanation- For the purposes of this section, “proceedings” in relation to any person whose name is specified in any order issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or which may have been completed on or before such date, and includes also such proceedings which may be commenced after the date of such order in respect of any year.

CHAPTER III- Sales Tax Authorities and Appellate Tribunal

Section 12. Disputes regarding territorial jurisdiction

(1) No person shall be entitled to call in question the jurisdiction of any sales tax authority appointed under section 9, not being an appellate authority, after the expiry of ninety day from the date of receipt by that person of any notice under this Act issued by such sales tax authority.

(2) Any objection as to the jurisdiction of any such sales tax authority may be raised within the period aforesaid by submitting a memorandum to the authority concerned who shall refer the question to the Commissioner and the Commissioner shall after giving the person raising the objection a reasonable opportunity of being heard, make an order determining the question and his decision in this behalf shall be final.

CHAPTER III- Sales Tax Authorities and Appellate Tribunal

Section 13. Appellate Tribunal

 (1) The [Lieutenant Governor] shall, as soon as may be after the commencement of this Act, constitute an Appellate Tribunal Tribunal consisting of one or more members, as it thinks fit, to exercise the powers and discharge the functions conferred on the Appellate Tribunal by or under this Act:

 PROVIDED that where the Appellate Tribunal consists of one member that member shall be a person who has held a civil judicial post for at least ten years or who has been a member of the [Indian Legal Service] (not below Grade III) for at least three years or who has been in practice as an advocate for at least ten years, and where the Appellate Tribunal consists of more than one member, one such member shall be a person be a person qualified as aforesaid.

 (2) Where the number of members of the Appellate Tribunal is more than one, the ³[Lieutenant Governor] shall appoint one of those members to be the Chairman of the Appellate Tribunal.

 (3) Subject to the provisions of sub-section (1), the qualifications and other conditions of service of the member or members constituting the Appellate Tribunal and the period for which such member or members shall hold office, shall be such as may be determined by the ⁴[Lieutenant Governor]

 (4) Any vacancy in the membership of the Appellate Tribunal shall be filled up by the ⁵[Lieutenant Governor] as soon as practicable.

 (5) Where the number of members of the Appellate Tribunal is more than one and if the members differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, if there is a majority, but if the members are equally divided, the decision of the Chairman of the Appellate Tribunal thereon shall be final.

 (6) Subject to the previous sanction of the ⁶[Lieutenant Governor], the Appellate Tribunal shall, for the purpose of regulating its procedure and disposal of its business, make regulations consistent with the provisions of this Act and the rules made thereunder.

 (7) The regulations made under sub-section (6) shall be published in the Official Gazette.

 (8) The Appellate Tribunal shall, for the purpose of discharging its functions, have all the powers which are vested in the Commissioner under section 42 and any proceeding before the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of section 193 and 228, and for the purpose of section 196 of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Tribunal 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)

 3. Subs. for “Central Government” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
4. Subs. for “Central Legal Service” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
5. Subs. for “Central Government” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
6. Subs. for “Central Government”by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
7. Sub. for “Central Government” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
8. Subs. for “Central Government” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.

CHAPTER IV- Registration, Amendment and Cancellation

Section 14. Registration

(1) No dealer shall, while being liable to pay tax under section 3, carry on business as a dealer unless he has been registered and possesses a certificate of registration.

(2) Every dealer required by sub-section (1) to be registered shall make an application for registration within such time, in such manner and to such authority, as may be prescribed.

(3) If the said authority is satisfied that the application is in order, it shall, in accordance with such rules as may be prescribed, register the applicant within the prescribed period and grant him a certificate of registration in the prescribed form which shall specify the goods or class of goods for the purposes of sub-clause (v) of clause (a) of sub-section 4:

PROVIDED that if the said authority is of opinion that the application is not in order, it shall, by an order passed within the said period and for reasons to be recorded in writing, reject the application;

PROVIDED FURTHER that no goods or class of goods in respect of which the ¹[ point of sale] has been specified by the ²[Lieutenant Governor] under section 5 shall be specified in a certificate of registration, and where a notification is issued under that section subsequent to the grant of any certificate of registration in respect of any goods or class of goods specified in a certificate, the said certificate shall be deemed to have been amended to omit the references to such goods or class of goods.

 (4) For the removal of doubts, it is hereby declared that the goods or class of goods to be specified in a certificate of registration granted under sub-section (3) of this section or sub-section (2) of section16 shall not include goods referred to in sub-clause (i) or sub clause (a) of sub-section(2) of section 4.

 1. Subs. by Act 38 of 1978, for “point of sale.”
2. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998

Section 15. Voluntary registration

(1) Any dealer, other than a dealer who deals exclusively in one or more classes of goods specified in the Third Schedule whose turnover during a year exceeds twenty-five thousand rupees may, notwithstanding that he may not be liable to pay tax under section 3, apply for registration under this section.

(2) The provision of sub-section (2), (3) and (4) of section 14 shall, as far as may be, apply in relation to registration of dealers under this section.

(3) Every dealer who has been registered under this section shall, for so long as his registration remains in force, be liable to pay tax under this Act.

(4) The registration of a dealer under this section shall be in force for a period of not less than three complete years and shall remain in force thereafter unless cancelled under the provisions of this Act.

 CHAPTER IV- Registration, Amendment and Cancellation

Section 16. Provisional Registration

 (1) Any person who intends to establish a business in Delhi for purpose of manufacturing goods of a value exceeding thirty thousand rupees per year, may, not-with standing that he is not required to be registered under section 14, apply for provisional registration in such manner and to such authority as may be prescribed.

(2) If the said authority, after making such inquiry as it may consider necessary, is satisfied as to the bona fide intention of the person making the application, it may, subject to such restrictions and conditions it may impose, grant a provisional certificate of registration on such person furnishing such security as it may consider necessary and shall specify in such certificate the goods or class of goods for the purposes of sub-clause (v) of clause (a) of sub-section (2) of section 4.

(3) Every person who has been granted a provisional certificate of registration under this section shall, for so long as such certificate is in force, be liable to pay tax under this Act.

(4) A provisional certificate of registration granted under this section shall be in force for such period as may be specified therein.

(5) The authority prescribed under sub-section (1) may, on application made in this behalf in the prescribed manner and subject to such restrictions and conditions as it may impose, extend, from time to time, the period specified in the provisional certificate of registration.

 (6) The provisions of section 18 shall, so far as may be, apply in relation to security required to be furnished under sub-section (2) of this section.

(7) If a person, who has been granted a provisional certificate of registration under this section, fails without sufficient cause to establish a business within the period specified in such certificate or fails to comply with any of the restrictions or conditions subject to which such certificate was granted, he shall be liable to pay a penalty equal to one and a half times the amount of tax which would have been payable had he not been so registered under this section.

Section 17. Special registration

(1) No dealer shall, while being liable to pay tax under sub-section (5) of section 3, carry on business as a dealer unless he obtained a special certificate of registration.

 (2) Every dealer required to be registered under sub-section (1) shall make an application for registration within such time, in such manner and to such authority, as may be prescribed.

(3) If the said authority is satisfied that the application is in order, it shall, in accordance with such rules as may be prescribed, grant a special certificate of registration to the applicant in the prescribed form:

 PROVIDED that the said authority shall not specify in any such certificate the goods or class of goods for the purposes of sub-clause (v) of clause (a) of sub-section (2) of section 4.

Section 18. Security from certain class of dealers

(1) The Commissioner may, if it appears to him to be necessary so to do for the proper realisation of the Tax, composition money or other dues payable under this Act or for the proper custody and use of the forms referred to in the second proviso to clause (a) of sub-section (2) of section 4, or the first proviso to section 5, as the case may be, impose, for reasons to be recorded in writing as a condition of the grant of the certificate of registration under section 14, section 15 or section 17 to a dealer of the continuance in effect of such certificate granted to any dealer, a requirement that the dealer shall furnish in the prescribed manner and within such time as may be specified in the order of such security or, as the case may be, such additional security as may be so specified, for all or any of the aforesaid purposes

(2) No dealer shall be required to furnish any security or additional security under sub-section (1) unless he has been given an opportunity of being heard and the amount of security or additional security that may be required to be furnished, shall-

(a) in the case of a dealer liable to pay tax under sub-section (2) of section 3 who has applied for the grant of a certificate of registration under section 14, be such amount as the Commissioner may, having regard to the nature and size of the business of such dealer, determine for the payment of the tax for which the dealer may be or become liable under this Act:

(b) in a case where security is to be given for the proper custody and use of the forms referred to in sub-section (1), be the amount of tax determined by the Commissioner which is likely to be saved by dealer by the issue of such forms:

(c) in the case of a dealer liable to pay tax under sub-section (2) of section 3 who has applied for the grant of a certificate of registration under section 14, be such amount as the Commissioner may, having regard to the nature and size of the business of such dealer, determine for the payment of the tax for which the dealer may be or become liable under this Act:

 (3) Where the security or additional security furnished by a dealer is in the form of a security bond and the surety dies or becomes insolvent, the dealer shall, within thirty days of the occurrence of such event, inform the authority granting the certificate of registation and shall, within ninety days of such occurrence, execute a fresh surety bond.

(4) The Commissioner may be order, for good and sufficient cause, and after giving the dealer an opportunity of being heard, forfeit the whole or any part of the security furnished by a dealer.

(5) Where, by reason of an order under sub-section (4) the security furnished by any dealer is forfeited in whole or is rendered insufficient, he shall furnish a fresh security of the requisite amount or, as the case may be, shall make up the deficiency in such manner and within such period as may be specified in the order.

CHAPTER IV- Registration, Amendment and Cancellation

Section 19.Amendment of certificate of registration

(1)The Commissioner may, after considering any information furnished under this Act or otherwise received and after making such inquiry as he may deem fit, amend from time to time any certificate of registration.

 (2) An amendment of the certificate of registration made under sub-section (1) shall take effect:-

 (a) in the case of a change in the name, ownership or place of business, or opening of a new place of business, from the date of the contingency which necessitates the amendment whether or not information in that behalf is furnished within the time prescribed under section 40;

(b) in the case of any addition or modification in the description of any goods or class of goods in the certificate of registration, from the date of the contingency if information in that behalf is furnished within the time prescribed under section 40 and from the date of receipt of request for such addition or modification by the Commissioner, in any other case:

 (c) in the case of deletion of any goods or class of goods, from the date of order of deletion:

 PROVIDED that the Commissioner shall, before amending on his own motion a certificate of registration, give the dealer affected by such amendment a reasonable opportunity of being heard:

PROVIDED that where in consequence of a change in the ownership of a business the liability to pay tax of a dealer ceases, the amendment of the certificate of registration shall take effect from the date on which information in respect of such change is furnished under section 40.

(3) Any amendment of a certificate of registration under this section shall be without prejudice to any liability for tax or penalty imposable, or for any prosecution for an offence under this Act.

(4) For the removal of doubts, it is hereby declared that where a registered dealer-

 (a) effects a change in the name of his business: or

(b) is a firm and there is a change in the constitution of the firm without dissolution thereof: of

(c) is a trustee of a trust and there is a change in the trustees thereof:of

(d) is a guardian of a ward and there is a change in the guardian: of (e) is a Hindu undivided family and the business of such family is converted into a partnership business with all or any of the copartners as partners thereof,

then, merely by reason of any of the circumstances aforesaid, it shall not be necessary for the dealer, or ¹[the firm which changed the constitution] or the new trustees, or the new guardian, or as the case may be, the partners of such partnership business, to apply for a fresh certificate of registration and on information being furnished in the manner required by section 40 the certificate of registration shall be amended.

 1 Subs. by Act 38 of 1978, for “the firm who charged the constitution.”

Section 20. Cancellation of certificate of registration

(1) Where-

(a) any business in respect of which a certificate of registration has been granted to a dealer under this Act, is discontinue ; or

(b) in the case of transfer of business by a dealer, the transferee already holds a certificate of registration under this Act; or

 (c) a dealer has ceased to be liable to pay tax under this Act, the Commissioner may cancel the certificate of registration of such dealer or the transferor, as the case may be, from such date as may be specified by him :

 PROVIDED that in a case referred to in clause (a) or clause (b), the certificate of registration shall be deemed to be inoperative with effect from the date of discontinuance or transfer of the business, as the case may be, and in a case referred to clause (c) from the date on which the dealer’s liability to pay tax has ceased, notwithstanding the fact that the order of cancellation is passed or that the particulars of the dealer regarding cancellation are published, as required by section 65, in the Official Gazette, after the aforesaid date:

 PROVIDED FURTHER that where a dealer has failed to furnish information regarding discontinuance of his business as required by section 40, the Commissioner shall before canceling the certificate from any specified date, publish in the Official Gazette, a notice of his intention so to do for the information of the dealer and shall hear objections, if any, of the dealer before passing the order.

 (2) A dealer registered under section 15 may, subject to the provisions of sub-section (4) of that section, apply in the prescribed manner not later than six months before the end of a year to the Commissioner for cancellation of his certificate of registration and the Commissioner shall, unless the dealer is liable to pay tax under section 3, cancel the certificate of registration accordingly, and such cancellation shall take effect from the end of the year.

 (3) Notwithstanding anything contained in sub-section (1) and (2), the Commissioner may at any time for reasons to be recorded in writing and after giving the dealer an opportunity of being heard, cancel the certificate of registration held by such dealer from such date as the Commissioner may specify in this behalf-

(a) if the dealer has failed to pay tax (including any penalty) due from him under any provisions of this Act; or

 (b) if the dealer holds or accepts or furnishes or causes to be furnished a declaration for the purposes of sub-clause (v) of clause (a) of sub-section (2) of section 4 or section5 which he knows or has reason to be false; or

(c) if the dealer who has been required to furnish the security under the provisions of section 18 has failed to furnish the security under the provisions of section 18 has failed to furnish such security; or

(d) if the dealer contravenes or has contravened any of the provisions of this Act; or

 (e) if the dealer has been convicted of an offence under this Act or under the Bengal Finance (Sales Tax) Act 1941 (Bengal Act, VI of 1941), as then in force in Delhi; or

 (f) if there is any other reason which in the opinion of the Commissioner warrants such cancellation

 (4) (a) If an order of cancellation passed under sub-section (3) is set aside as a result of an appeal or other proceeding under this Act, the certificate of registration of the dealer shall be restored and he shall be liable to pay tax as if his certificate had not been canceled.

 (b) If any dealer whose certificate of registration has been restored under clause (a) satisfies the Commissioner that tax has been paid by such dealer on sale of goods made to him during the period his certificate of registration was inoperative which, but for the cancellation of such certificate he would not have paid, then the amount of such tax shall be adjusted or refunded in such manner as may be prescribed.

 (5) Every dealer who applies for cancellation of his registration shall surrender with his application the certificate of registration granted to him and every dealer whose registration is canceled otherwise than on the basis of his application shall surrender the certificate of registration within seven days of the date of communication to him of the order of cancellation.

(6) If a dealer fails to surrender his certificate of registration as provided in sub-section (5), the Commissioner may, by an order in writing and after giving the dealer an opportunity of being heard, direct that the dealer shall pay, by way of penalty, a sum not exceeding twenty-five rupees for every day of default.

(7) The cancellation of a certificate of registration shall not affect the liability of any person to pay tax due for any period prior to the date of such cancellation, but remains unpaid or is assessed thereafter notwithstanding that he is not liable to pay tax under this Act.

(8) Where by any order passed under this Act it is found that any person registered as a dealer ought not to have been so registered, then notwithstanding anything contained in this Act, such person shall be liable to pay tax for the period commencing with the date of his registration and ending with the date of such order, as if he were a dealer.

Section 21. Periodical payment of tax and filing or returns

(1) Tax payable under this Act shall be paid in the manner hereinafter provided at such intervals as may be prescribed.

(2) Every registered dealer and every other dealer who may be required so to do by the Commissioner by notice served in the prescribed manner shall furnish such returns of turnover by such dates and to such authority as may be prescribed.

(3)Every registered dealer required to furnish returns under sub-section (2) shall pay into Government Treasury or the Reserve Bank of India or in such other manner as may be prescribed, the full amount of tax due from him under this Act according to such return and shall where such payment is made into a Government Treasury or the Reserve Bank Of India furnish alongwith the return a receipt from such Treasury of Bank showing the payment of such amount.

(4)If any registered dealer discovers any mistake or error in any return furnished by him, he may at any time, before the expiry of three months next following the last date prescribed for furnishing of the return, furnish a revised return, and if the revised return shows a higher amount of tax to be due that was shown in the original return, it shallbe accompanied by a receipt showing payment in the manner provided in sub-section (3) of the excess amount.

(a)in the case of an individual, by the individual himself, and where the individual is absent from India by the individual concerned or by some person duly authorised by him in this behalf and where the individual is mentally incapacitated from attending to his affairs, by his guardian or by any other person competent to act on his behalf;

 (b)in the case of a Hindu undivided family, by a Karta, and where the Karta is absent from India or mentally incapacitated from attending to his affairs, by any other adult member of such family;

(c)in the case of a company or local authority, by the principal officer thereof;

 (d)in the case of a firm, by any partner thereof not being a minor;

(e)in the case of any other association, by any member of the association or the principal officer thereof; and

(f)in the case of any other person, by that person or by some person competent to act on his behalf.

(6)For the purposes of sub-section (5) of this section and section 59 the expression “principal officer” shall have the meaning assigned to it under clause (35) of section 2 of the Income-tax Act, 1961(43 of 1961).

Section 22. Collection of tax only by registered dealer

(1)No person who is not a registered dealer shall collect in respect of any sale of goods by him in Delhi 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.

(2) Notwithstanding anything contained in sub-section (1) a dealer who has been permitted by the Commissioner to make a lump sum payment under section 29 shall not collect any sum by way of tax on the sale of goods if made during the period to which such lump sum payment relates.

 CHAPTER V- Returns, Assessment, Recovery and Refund of Tax

Section 23. Assessment

 (1)The amount of tax due from a registered dealer shall be assessed separately for each year during which he is liable to pay the tax :

PROVIDED the when such dealer fails to furnish a return relating to any period of a year by the prescribed date, the Commissioner may, if he thinks fit, assess the tax due from such dealer separately for that period or any other period of such year :

 PROVIDED FURTHER that the Commissioner may, subject to such conditions as may be prescribed and for reasons to be recorded in writing, assess the tax due from any dealer for a part of a year.

 (2)If the Commissioner is satisfied that the returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such return.

 (3)(a)If the Commissioner is not satisfied that the returns furnished in respect of any period are correct and complete and he thinks it necessary to require the presence of the dealer or the production of further evidence, he shall serve on such dealer in the prescribed manner a notice requiring him on a date and at a place specified therein either to attend and produce or cause to be produced all evidence on which such dealer relies in support of his returns, or to produce such evidence as is specified in the notice.

(b) On the date specified in the notice, or as soon as may be thereafter, the Commissioner shall, after considering all the evidence which may be produced, assess the amount of tax due from the dealer.

(4) If a dealer fails to comply with the terms of any notice issued under sub-section (3), the Commissioner shall assess to the best of his judgment the amount of tax due from him.

(5) If a dealer fails to furnish returns in respect of any period by the prescribed date, the Commissioner shall, after giving the dealer a reasonable opportunity of being heard, assess to the best of his judgment the amount of tax, if any, due from him.

 (6) If, upon information which has come into his possession, the Commissioner is satisfied that any dealer who has been liable to pay tax under this Act in respect of any period, has failed to get himself registered under section 14 or section 17, as the case may be , the Commissioner shall proceed in such manner as may be prescribed to assess to the best of this judgment the amount of tax due from the dealer in respect of such period and all subsequent periods and in making such assessment shall give the dealer a reasonable opportunity of being heard, and the Commissioner may, if he is satisfied that the default was made without reasonable cause, direct that the dealer shall pay, by way of penalty, in addition to the amount of the tax so assessed, a sum not exceeding twice that amount.

(7) ¹[No assessment under the provisions of sub-sections (1) to (5) shall be made after the expiry of two years, and no assessment under the provision of subsection (6) shall be made after the expiry of six years from the end of the year in respect of which or part of which the tax is assessable:

PROVIDED that for the assessments of the years 1997-98, no assessments under the provisions of sub-sections (1) to (5) shall be made after the expiry of two and a half years ²[and no assessments of the year 1999-2000 under the provisions of the said sub-sections shall be made after the expiry of one year and nine months].

 PROVIDED FURTHER that where such assessment is made in consequence of, or to give effect to, any order of an appellate or revisional authority or of a court, the period of two years or six years, as the case may be, shall be reckoned from the date of such order and further that the provisions of sub-section (1) of section 24 regarding time limit for service of notice shall not apply for assessment made under this provision.

 Explanation : For the assessment made in consequence of, or to give effect to , any order of an appellate or revisional authority or of a court, the revised limitation period shall be applicable for the order to the appellate or revisional limitation period shall be applicable for the order of the appellate or revisional authority or of the court, made after the commencement of the Delhi Sales Tax (Second Amendment) Act, 2000]

(8) Any assessment made under this section shall be without prejudice to any prosecution for an offense under this Act.

 1. Subs. by Delhi Sales Tax (Second Amendment) Act, 2000, dt. 19.2.2001 w.e.f. 9.8.2000 earlier read as: “No assessment under the provisions of sub-section (1) to (5) shall be made after the expiry of three years [substituted by “four years” vide the Delhi Sales Tax Amendment Act, 1997 (Delhi Act No. 2 of 1999) w.e.f. 1.12.1999] and no assessment under the provisions of sub-section (6) shall be made after the expiry of six years from the end of the year in respect of which or part of which the tax is assessable”.

PROVIDED that where such assessment is made in consequence of or to give effect to, any order of an appellate or revisional authority or of a court, the period of three years, [substituted by “four years” vide the Delhi Sales Tax amendment Act, 1997 (Delhi Act No. 2 of 1999) w.e f. 1.12.1999] or six years, as the case may be, shall be reckoned from the date of such order and further that the provisions of sub-section (1) of section 24 regarding time for service of notice shall not apply for assessment made under this proviso.”

2. Inserted by The Delhi Sales Tax (Amendment) Ordinance, 2001 (Ordinance No. 2 of 2000) (published in Delhi Gazette, Extraordinary No. 140 dt. 27 th August 2001

Section 24. Periodical payment of tax and filing or returns

(1) Tax payable under this Act shall be paid in the manner hereinafter provided at such intervals as may be prescribed.

 (2) Every registered dealer and every other dealer who may be required so to do by the Commissioner by notice served in the prescribed manner shall furnish such returns of turnover by such dates and to such authority as may be prescribed.

(3)Every registered dealer required to furnish returns under sub-section (2) shall pay into Government Treasury or the Reserve Bank of India or in such other manner as may be prescribed, the full amount of tax due from him under this Act according to such return and shall where such payment is made into a Government Treasury or the Reserve Bank Of India furnish alongwith the return a receipt from such Treasury of Bank showing the payment of such amount.

(4)If any registered dealer discovers any mistake or error in any return furnished by him, he may at any time, before the expiry of three months next following the last date prescribed for furnishing of the return, furnish a revised return, and if the revised return shows a higher amount of tax to be due that was shown in the original return, it shallbe accompanied by a receipt showing payment in the manner provided in sub-section (3) of the excess amount.

(a)in the case of an individual, by the individual himself, and where the individual is absent from India by the individual concerned or by some person duly authorised by him in this behalf and where the individual is mentally incapacitated from attending to his affairs, by his guardian or by any other person competent to act on his behalf;

 (b)in the case of a Hindu undivided family, by a Karta, and where the Karta is absent from India or mentally incapacitated from attending to his affairs, by any other adult member of such family;

(c)in the case of a company or local authority, by the principal officer thereof;

 (d)in the case of a firm, by any partner thereof not being a minor;

 (e)in the case of any other association, by any member of the association or the principal officer thereof; and

 (f)in the case of any other person, by that person or by some person competent to act on his behalf.

 (6)For the purposes of sub-section (5) of this section and section 59 the expression “principal officer” shall have the meaning assigned to it under clause (35) of section 2 of the Income-tax Act, 1961(43 of 1961).

 Section 25. Payment and recovery of tax

(1)The amount of Tax-

(2) No dealer shall be required to furnish any security or additional security under sub-section (1) unless he has been given an opportunity of being heard and the amount of security or additional security that may be required to be furnished, shall-

 (a) due where returns have been furnished without the receipt showing full payment thereof;and

 (b) assessed, reassessed or re-computed for any period under section 23 or section24, less the amount if any, already paid by the dealer in respect of the said period, shall together with any penalty that may be directed to be paid under any of the provisions of this section, sub-section (6) of section 23, section 55, section 56 or section 57 be paid by the dealer or the person liable therefor into Government Treasury or the Reserve Bank of India or in such other manner as may be prescribed within thirty days from the date of service of notice of demand issued by the Commissioner for this purpose :

 PROVIDED that where the Commissioner has reason to believe that it will be detrimental to revenue if the full period of thirty days aforesaid is allowed, he may direct that the sum specified in the notice of demand shall be paid within such period being a period less than the period of thirty days aforesaid, as may be specified by him in that notice.

 (2) On an application made before the expiry of the due date under sub-scetion (1), the Commissioner may, in respect of any particular dealer or person and for reasons to be recorded in writing, extend the time for payment or allow payment by installment or grant stay, subject to such condition as he may think fit to impose in the circumstances of the case.

(3) If the amount of tax and penalty, if any, is not paid within the time specified in sub section (1) or extended under sub-section (2), as the case may be, the dealer or the person liable therefor shall be deemed to be in default in respect of that amount.

 (4) In a case where payment by installment is allowed under sub-section (2) and the dealer or the person liable for such payment commits default in paying any one of the installment within the time fixed under that sub-section, the dealer or the person aforesaid shall be deemed to be in default in respect of the whole of the amount then outstanding and the other installment shall be deemed to have been due on the same date as the installment actually in default.

(5) When a dealer or a person is in default or is deemed to be in default in making payment of tax and penalty, if any, he shall, in addition to the amount of arrears payable under the foregoing sub-sections, be liable to pay, by way of penalty, an amount which in the case of a continuing default may be increased, from time to time, so however, that the total amount of penalty does not exceed the amount in arrears :

PROVIDED that, before levying any such penalty, the dealer or the person aforesaid shall be given a reasonable opportunity of being heard.

(6) Where as a result of any final order amount of tax and penalty, if any, with respect to the default, in the payment of which the penalty was levied, has been wholly reduced, the penalty levied shall be refunded.

(7) Any amount of tax or penalty in respect of which a dealer or person is in default, or any composition money due under section 29 or section 54 which remains unpaid, shall be recoverable as an arrear of land revenue :

PROVIDED that where security, other than in the form of surety bond, has been furnished by a dealer under sub-section (2) of section 16 or section 18, the Commissioner may, for good and sufficient reasons in writing, realised any amount of tax or penalty or composition money remaining unpaid as aforesaid or part thereof ordering forfeiture of the whole or any part of the security.

Section 26. Continuation of certain recovery proceedings

Where any notice of demand in respect of any tax or penalty or any other amount payable under this Act (hereafter in this section referred to as “Government dues”) is served upon any dealer, and any appeal, revision application or other proceeding is filed or taken in respect of such Government dues, then,-

(a)where such Government dues are enhanced in such appeal, revision or other proceeding, the Commissioner shall serve upon the dealer another notice of demand only in respect of the amount by which such Government dues are enhanced and any recovery proceeding in relation to such Government dues as are covered by the notice of demand served upon him before the disposal of such appeal, revision application or proceeding any, without the service of any fresh notice of demand, be continued from the stage at which such proceedings stood immediately before such disposal;

 (b) where such Government dues are reduced in such appeal, revision or proceeding.-

 (i)it shall not be necessary for the Commissioner to serve upon the dealer a fresh notice of demand;

 (ii) the Commissioner shall give intimation of such reduction to him and to the appropriate authority with whom recovery proceedings are pending;

 (iii) any recovery proceedings initiated on the basis of the notice of demand served upon him before the disposal of such appeal, revision application or proceeding may be continued in relation to the amount so reduced from the stage at which such proceedings stood immediately before such disposal.

 Section 27. Interest

(1) If any dealer fails to pay the tax due as required by sub-section (3) of section 21, he shall, in addition to the tax (including any penalty) due, be liable of pay simple interest on the amount so due at one per cent per month from the date immediately following the last date for the submission of the return under sub-section (2) of the said section for a period of one month thereafter for so long as he continues to make default in such payment or till the date of completion of assessment under section 23 whichever is earlier.

(2) When a dealer or a person is in default or is deemed to be in default in making the payment of tax, he shall, in addition to the amounts payable under section 23 or section 24, be liable to pay simple interest on such amount at one per cent per month from the date of such default for a period of one month, and at one and a half per cent per month thereafter for so long as he continues to make default in the payment of the said amount.

 (3) Where as a result of any final order the amount of tax (including any penalty) due or in default is wholly reduced, the amount of interest, if any, paid shall be refunded, or if such amount is varied, the interest due shall be calculated accordingly :

 PROVIDED that where any amount of tax payable is enhanced by any such order, interest shall be payable on the amount by which the tax is enhanced after the expiry of a period of three months from the date of the order :

PROVIDED FURTHER that where the realisation of any amount remains stayed by the order of any court or authority and such order is subsequently vacated, interest shall be payable also for any period during which such order remained in operation.

 (4) The interest payable under this section shall be deemed to be tax due under this Act.

Section 28. Special mode of recovery

(1) Notwithstanding anything contained in any law or contract to the contrary, the Commissioner may, at any time or from time to time, by notice in writing, a copy of which shall be forwarded to the dealer at his last known address, require-

 (a) Any person from whom any amount of money is due, or may become due, to a dealer on whom notice has been served under sub-section (1) of section 25, or

(b) any person who holds or may subsequently hold money for or on account of such dealer, to pay to the Commissioner, either forthwith upon the money becoming due or being held or within the time specified in the first mentioned notice (but not before the money becomes due or is held as aforesaid) so much of the money as is sufficient to pay the amount due by the dealer in respect of the arrears of tax and penalty under this Act, or the whole of the money when it is equal to or less than that amount .

Explanation.- For the purposes of this sub-section, the amount of money due to a dealer from,or money held for or on account of a dealer by, any person, shall be calculated by the Commissioner after deducting therefrom such claims (if any) lawfully subsisting, as may have fallen due for payment by such dealer to such person.

(2) The Commissioner may amend or revoke any such notice or extend the time for making any payment in pursuance of the notice.

(3) Any person making any payment in compliance with a notice under this section shall be deemed to have made the payment under the authority of the dealer, and the receipt thereof by the Commissioner shall constitute a good and sufficient discharge of the liability of such person to the extent of the amount specified in the receipt.

(4) Any person discharging any liability to the dealer after receipt of the notice referred to in this section, shall be personally liable to the Commissioner to the extent of the liability discharged or to the extent of the liability of dealer for tax and penalty which ever is less.

(5)where a person to show a notice under this section is sent, proves to the satisfaction of the Commissioner that the sum demanded or any part thereof is not due to the dealer or that he does not hold any money for or on account of the dealer, then, nothing contained in this section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, to the Commissioner.

(6) Any amount of money which the aforesaid person is required to pay to the Commissioner, or for which he is personally liable to the Commissioner under this section shall, if it remains unpaid, be recoverable as an arrear of land revenue.

 (7) The Commissioner may apply to the court in whose custody there is money belonging to the dealer for payment to him of the entire amount of such money or if it is more than the tax and penalty, if any, due, an amount sufficient to discharge such tax and the penalty.

Section 29. Lump sum payment of tax

The Commissioner may, in such circumstances and subject to such conditions as may be prescribed, permit any dealer to pay in lieu of the amount of tax payable by him under the provisions of this Act, a lump sum determined in the prescribed manner, by way of composition.

Section 30. Refund

(1)If any person satisfies the Commissioner that the amount of tax paid by him or on his behalf for any year exceeds the amount payable by him under this Act for that year, he shall, on making claim in the prescribed form and verified in the prescribed manner, be entitled to refund of the excess either by cash payment or at his option by deduction of such excess from the amount of tax and penalty (if any) due in respect of any other period :

PROVIDED that the Commissioner shall first apply such excess towards the recovery of amount in respect of which a notice under section 25 has been issued and shall then refund the balance, if any.

Explanation.- When no assessment is made, the due tax paid under section 21 by the dealer shall be deemed to be the tax payable under this Act.

(2) Where on account of death, incapacity, insolvency, liquidation or other cause a person is unable to claim or receive any refund due to him, his legal representative or the trustee or guardian or receiver, as the case may be, shall be entitled to claim or receive such refund for the benefit of such person or his estate.

(3) No claim for refund under sub-section (1) shall be allowed unless it is made within a period of twelve months from the date of the order giving rise to a claim for such refund, and the Commissioner shall, except as otherwise provided in this Act, refund any amount which becomes due to a dealer in the prescribed manner :

PROVIDED that the Commissioner may allow a claim for refund to be made after the expiry of the said period but not later than twelve months from such expiry, if he is satisfied that there was sufficient cause for not making such claim within that period.

(4) where an amount required to be refunded by the Commissioner to any person as a result of any order passed in appeal or other proceedings under this Act is not so refunded to him within ninety days from the date of his claim under sub-section (3),such person shall be entitled to be paid simple interest on such amount at one per cent per month from the date immediately following the expiry of the period of ninety days for a period of one month and at one and a half per cent per month, thereafter for so long as the refund is not made.

Explanation.- If the delay in making the refund during any of the periods referred to in this sub-section is attributable to the person making the claim, whether wholly or in part, the period of the delay attributable to him shall be excluded from the period for which interest is payable.

(5) Where any question arises as to the period to be excluded for the purposes of calculation of interest under sub-section (4), such question shall be determined by the Commissioner whose decision thereon shall be final.

(6) where an order giving rise to a refund is the subject matter of an appeal or further proceeding or where any other proceeding under this Act is pending and the Commissioner is of opinion that the grant of the refund is likely to adversely affect the revenue, the Commissioner may withhold the refund till such time as the Commissioner may determine.

(7) In any claim for refund, it shall not be open to the dealer to question the correctness of any assessment or other matter decided which has become final and conclusive or ask for a review of the same and the dealer shall not be entitled to any relief on such claim except refund of tax wrongly paid or paid in excess.

(8) Any tax levied and collected under this Act in respect of sale in Delhi of any declared goods which are subsequently sold in the course of inter-State trade or commerce, shall be reimbursed to the person making the sale in the course of inter-State trade or commerce, in such manner and subject to such conditions as may be prescribed.

 Explanation.- For the purpose of sub-section (8), “declared goods” means goods declared by section 14 of the Central Sales Tax Act, 1956 (74 of 1956) to be of special importance in inter-State trade or commerce.

Section 31. Set-off

(1) Where the Commissioner is satisfied that delay beyond the prescribed period has occurred in the grant of a certificate of registration to a dealer and that such delay was not wholly due to any fault, commission or negligence on the part of the dealer, the amount of tax, if any, paid on sales of goods made to such dealer which would not have been payable but for the delay in the grant of a certificate of registration as aforesaid, shall be adjusted against any amount payable by the dealer under this Act. PROVIDED that-

(a) in case the amount of tax so paid by the dealer exceeds his liability to pay any amount under this Act the adjustment shall be made to the extent of such liability and the balance shall be refunded to the dealer; and

(b) in case there is no liability to pay amount under this Act, the entire amount of tax paid shall be refunded to the dealer;

PROVIDED FURTHER that the dealer shall not be entitled to any such adjustment or refund in respect of the goods, which are not specified in the certificate of registration granted to him.

(2) No application for adjustment or refund of tax under this section shall be entertained unless it is made within three months from the date on which a certificate of registration is granted to the dealer.

Section 32. Liability in case of transfer of Business

(1) Where a dealer, liable to pay tax under this Act, transfer his business in whole in part, by sale, gift, lease, leave or license, hire or in any other manner whatsoever, the dealer and the person to whom the business is so transferred shall jointly and severally be liable to pay the tax (including any penalty) due from the dealer upto the time of such transfer, whether such tax (including any penalty) has been assessed before such transfer, but has remained unpaid or is assessed thereafter.

(2) Where the transferee or the lease of a business referred to in sub-section (1) carries on such business either in his own name or in some other name, he shall be liable to pay tax on the sale of goods effected by him with effect from the date of such transfer and shall, if he is an existing dealer, apply within the prescribed time for amendment of his certificate of registration.

CHAPTER VI- Liability in Special Cases

Section 33. Liability in case of company liquidation

(1) Every person -

(a) who is a 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 reffered to as the “liquidator”), shall, within thirty days after he has become such liquidator, give notice of his appointment as such to the Commissioner.

(2) The Commissioner shall, after making such enquiries or calling for such information as he may deemed fit, notify the liquidator within three months from the date on which he receive notice of the appointment of the liquidator, the amount which in the opinion of the Commissioner would be sufficient to provide for any tax (including any penalty) 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 hand until he has been notified by the Commissioner under sub-section (2) and on being so notified, the liquidator shall set aside an amount equal to the amount notified and, until he so set aside such amount , he shall not part with any of the assets of the company or the properties in his hand :

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 and penalty, if any, 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 Commissioner reasonable

(4) If the liquidator fails to give notice in accordance with sub-section (1) or fails to set aside the amount as required by sub-section (3) or part with any assets of the company or the properties in his hand and contravention of the provisions of that subsection , shall be to the extent of such amount.

PROVIDED that if the amount of any tax and penalty, if any, payable by the company is notified under this subsection (2) the personal liability of the liquidator under this subsection shall be to the extent of such amount.

(5) Where there are more liquidator than one, the obligation and liabilities attached to the liquidator under this section shall attach to all the liquidators jointly and severally.

 (6) When any private company is wound up and any tax and penalty, if any, assessed under this Act on the company for any period , whether before or in the course of or after its liquidation , cannot be recovered, than 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 and penalty, if any, unless he proves to the satisfaction of the Commissioner that 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.

(7) The provision for this section shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force.

 (8) For the purposes of this section, the expressions “company” and “private company shall have the meanings respectively assigned to them under clauses (i) and (ii) of subsection (1) of section 3 of the companies Act, 1956 (1 of 1956).

Section 34. Liabilities of partners of firm to pay tax

Not withstanding any contract to the contrary, where any firm is liable to pay any tax (including any penalty) under this Act, the firm and each of the partners of the firm shall be jointly and severally liable for such payment :

PROVIDED that where any such partner retires from the firm, he shall intimate the data of his retirement to the commissioner by a notice in that behalf in writing and he shall be liable to pay (including any penalty) remaining unpaid at the time of his retirement through unassessed on that date:

 from the date of retirement and any tax (including any penalty) due up to the date of his retirement though unassessed on that date :

 PROVIDED FURTHER that if no such intimation is given within fifteen days from the date of retirement, the liability of the partner under the first provision shall continue until the date on which such intimation is received by the Commissioner.

 CHAPTER VI- Liability in Special Cases

Section 35. Liability of guardians, trustees, etc.

 Where the business in respect of which tax is payable under this Act is carried on by, or is in charge of any guardian, trustee or agent of a minor or other incapacitated person on his behalf and for the benefit of such minor or other incapacitated person, the tax (including any penalty) shall be levied upon and recoverable from such guardian, trustee or agent, as the case may be, in like manner and to the same extent as it would be assessed upon and recoverable from any such minor or other incapacitated person, if he were of full age and of sound mind and if he were conducting the business himself, and all the provisions of this Act shall, so far may be, apply accordingly.

Section 36. Liability of Court of Wards, etc.

Where the estate or any portion of the estate of a dealer owning a business in respect of which taxis payable under this Act is under the control of the Court of Wards, the Administrator-General, the Official Trustee or any receiver manager (including any person, whatever be this designation, who in fact manages the business) appointed by or under any order of a court, the tax (including any penalty) shall be levied upon and be recoverable from such Court of Wards, Administrator-General, Official Trustee, receiver or manager in like manner and to the same extent as it would assessable upon and be recoverable from the dealer if he were conducting the business himself; and all the provisions of this Act shall, so far as may be, apply accordingly.

 Section 37. Liability in other cases

(1) Where a dealer is a firm or an association of persons or a Hindu undivided family, and such firm, association or family has discontinued business-

(a) the tax payable under this Act, by such firm, association or family up to the date of the discontinuance may be assessed as if no such discontinuance had taken place; and

 (b) every person who was at the time of such discontinuance a partner of such firm, or a member of such association or family, shall, notwithstanding such discontinuance be liable jointly and severally for the payment of tax assessed and penalty imposed and payable by such firm, association or family, whether such tax (including any penalty) has been assessed prior to or after such discontinuance, and subject as aforesaid, the provisions of this Act shall, so far as may be, apply as if every such person or partner or member were himself a dealer :

PROVIDED that where the partner of a firm liable to pay such tax (including any penalty) dies, the provision of subsection (4) shall, so far as may be, apply.

 (2) Where a change has occurred in the constitution of a firm or association, the partners or members of the firm or association as it existed after its reconstitution, shall, without prejudice to the provisions of section 34, jointly and severally be liable to pay tax (including any penalty) due from such firm or association for any period before its re-constitution.

(3) The provisions of subsection (1) shall, so far as may be, apply where the dealer, being a firm or association of persons is dissolved or where the dealer , being a Hindu undivided family, has affected partition with respect to the business carried on by it and accordingly references in that subsection to discontinuance shall be construed as references to dissolution or, as the case may be , to partition.

(4) Where the dealer is liable to pay tax under this Act dies, then -

(a) if a business is carried on by the dealer is continued after his death by his legal representative or any other person , such legal representative or other person, shall be liable to pay tax (including any penalty) due from the dealer under this Act, whether such tax (including any penalty) has been assessed before his death but has remained unpaid, or is assessed after his death;

(b) if the business carried on by the dealer is discontinued after his death, his legal representative shall be liable to pay out the estate of the deceased, to the extent the estate is capable of meeting the charge, the tax (including any penalty) due from the dealer under this Act, whether this tax (including any penalty) has been assessed before his death but has remained unpaid, or is assessed after his death, and the provisions of this Act shall, so far as may be, apply to such legal representative or other person as if he the dealer himself.

Explanation. – For this purposes of this section and section 40 “legal representative” has the meaning assigned to it in clause (11) of section 2 of the Code of Civil Procedure, 1908 (5 of 1908).

Section 38. Accounts

(1) Every dealer liable to pay tax under this Act, and every other dealer on whom a notice has been served to furnish returns under sub-section-2 of section 21 shall keep at his place of business a true account of the value of goods bought and sold by him, and if the Commissioner considers that such account is not sufficiently clear and intelligible to enable him to make a proper check of the returns reffered to in that sub-section, he may require such dealer by notice in writing to keep such accounts (including records of purchases and sales) as may be specified therein.

(2)The Commissioner may, by notification in the Official Gazette, direct any class of registered dealers generally to keep such accounts (including records of purchases and sales) as may be specified in the notification subject to such conditions and restrictions as may be prescribed.

CHAPTER VII- Liability to produce Accounts and supply of Information

Section 39. Memoranda of sales.

If a registered dealer -

(a)sells goods to another registered dealer, or

(b) makes sales in the course of inter-State trade or commerce, or

(c) sells any goods exceeding ¹[one hundred rupees] in value in any one transaction to any other person, he shall issue to the purchaser a bill or cash memorandum serially numbered, signed and dated by him or his servant, manager or agent and showing therein his name and address and such other particulars as may be prescribed and he shall keep a duplicate or copy of such bill or cash memorandum duly signed and dated and preserve it for a period of not less than five years from the end of the year unless any proceedings in respect of that year are pending in which case they shall be preserved till the final decision in those proceedings:

PROVIDED that if in respect of any goods or class of goods or any dealers or class of dealers, the ²[lieutenant Governor] is of opinion that it is not practicable to issue any bills or cash memoranda for sales of goods exceeding ³[one hundred rupees] in value in any one transaction to any other person, he may, by notification in the Official Gazette, -

 (i) specify such amount exceeding ⁴[one hundred rupees] in value as the amount for the issue of such bills or cash memoranda:

(ii) exempt such goods or class of goods or dealers or class of dealers from the operation of this section.

1. Subs. by Delhi Sales Tax (Amendment), 1994, and Subs. by Delhi Sales Tax (Second Amendment) Act, 2000, dt. 19.2.2001 for “ten rupees” w.e.f. 8.4.1994.
2. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f 2.3.1998.
3. Subs. for “ten rupees” by Delhi Sales Tax (Amendment), 1994; Delhi Sales Tax (Second Amendment) Act, 2000, dt 19.2.2001 (w.e.f 8.4.1994).
4. Subs for “ten rupees” by Delhi Sales Tax (Amendment), 1994; Delhi Sales Tax (Second Amendment) Act, 2000, dt 19.2.2001 (w.e.f 8.4.1994).

Section 40. Information to be furnished regarding change of business

if any dealer to whom the provisions of sub-section (2) of section 21 apply –

(a) sells or otherwise disposes of his business or any part of his business or any place of business, or effects or comes to know of any other change in the ownership of the business; or

(b) discontinues his business or changes his place of business or warehouse, or opens a new place of business; or

(c) changes the name or nature of his business or effects any change in the goods or class of goods in which he carries on his business and which is or are specified in his certificate of registration; or

 (d) enters into partnership or other association in regard to his business , he shall, within the prescribed time, inform the prescribed authority accordingly, and if any such dealer dies, his legal representative shall in like manner inform the said authority.

CHAPTER VII. Liability to produce Accounts and supply of Information

Section 41. Production and inspection of accounts and documents and search of premises

 (1) The Commissioner may, subject to such conditions as may be prescribed, require any dealer ¹[or any other person] -

(a) to produce before him such books of accounts, registers or documents,

 (b) to furnish such information relating to the stock of goods of, or purchases, sales or delivery of goods by the dealer or any other information relating to his business , as may be deemed necessary, for the purposes of this Act.

(2)(a) All books of accounts, registers and documents relating to the stock of goods, or purchases , sales deliveries of goods by any dealer, and

(b) All goods kept in any place of business or ware-house of any dealer, ²[or at any other place for and on behalf of a dealer] shall at all reasonable times be open to inspection by the commissioner and the commissioner may take or cause to be taken such copies or extracts of the said books of accounts, registers or documents and such inventory of the goods found as appear to him necessary for the purposes of this Act.

 (3) Where the Commissioner, upon information in his possession or otherwise, has reasonable ground to believe that -

(a) any person to whom a notice under this Act was issued to produce or cause to be produced, any book of accounts or other documents has omitted or failed to produce or caused to be produced such books of accounts, or other documents, as required by such notice, or

 (b) any person to whom a notice as aforesaid has been or might be issued, will not, or would not, produce or caused to be produced any books of accounts or other documents which will be useful for, or relevant to , any proceeding under the Bengal Finance (Sales Tax) Act, 1941, Bengal Act (VI of 1941), as it was in force in Delhi, or under this Act, or

 (c) book of accounts, registers or documents of any dealer may be destroyed , mutilated, falsified or secreted or any sales by that dealer have been or may be suppressed, ³[or any goods have not been or may not be accounted for in the books of accounts, registers or other documents required to be maintained under this Act] with a view to evade or attempt to evade payment of tax due under the Bengal Finance (Sales Tax) Act, the Commissioner or any other person appointed under sub-section (2) of section 9 if so authorised by the Commissioner may -

 (i) enter and search any building or place where he has reason to suspect that books of accounts and other documents ⁴[or the goods] or the sale proceeds are kept;

 (ii) break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (1) where the keys thereof are not available ;

 (iii) seize any such books of accounts or other documents or any inventory of goods ⁵[or any goods] as appear to him necessary for the purposes of this Act;

 (iv) place marks of identification on any books of accounts or other documents or make or cause to be made extracts or copies therefrom ;

 (v) make a note or any inventory of any such money or goods found as a result of such search ⁶[or place marks of identification on such goods];

 (vi) seal the premises including the office, shop, godown, box, locker, sage, almirah or other receptacle if the owner or the person in occupation or in charge of such office, shop, godown, box, locker, safe, almirah, or other receptacle leaves the place or is not available or fails or refuses to open it when called upon to do so ⁷[or causes or attempts to cause obstruction to the Commissioner or the authorised officer in the discharge of his duties under this section.]

(4) The commissioner may requisition the services of any police officer or any public servant, or of both to assist him for all or any of the purposes specified in sub-section (3).

(5) where the Commissioner seizes, any books of accounts or other documents ⁸[or any goods], he shall give the dealer or the person present on his behalf, as the case may be, a receipt for the same and obtain acknowledgment of the receipt so given to him :

 PROVIDED that if the dealer or person from whose custody the books of accounts or other documents ⁹[or the goods] are seized refuses to give an acknowledgment, the Commissioner any leave the receipt at the premises and record this fact:

PROVIDED FURTHER that the dealer or person aforesaid may file objection before the Commissioner against such search, seizure or inventory within seven days of such search, seizure or inventory.

 ¹⁰[(5A) Where it is not feasible to seize the accounts or other documents or the goods under sub-section (3), the Commissioner or the authorised officer, may serve on the owner or the person who is in immediate possession or control thereof, an order that he shall not remove or part with or otherwise deal with them except with the previous permission of the Commissioner or such officer.]

(6) The Commissioner shall keep in his custody the books of accounts, registers or documents seized under sub-section (3) for such period not later than the completion of all the prceedings under this Act in respect of years for which those books of accounts, registers or documets are relevant, as he considers necessary, and thereafter shall return the same to the dealer or any other person from whose custody or power they were

seized :

PROVIDED that the Commissioner may, before returning such books of accounts or other documents as aforesaid, place or cause to be placed such marks of identification thereon as appear to him to be necessary :

PROVIDED FURTHER that the Commissioner may, before returning the books of accounts and other documents, require that the dealer or the person, as the case may be, shall give written undertaking that the books of accounts and other documents shall be presented whenever required by any competent authority for any proceedings under this Act.

(7) Save as otherwise provided n this section, every search or seizure made under this section shall ¹¹[as far as possible] be carried on in accordance with the provision of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches or seizures made under that Code.

(8) The Commissioner may, for the purposes of this Act-

(a) require any person, including a banking company, post office or any officer thereof, to furnish information in relation to such points or matters or to furnish statements of accounts and affairs verified in the manner specified by him, giving information in relation to such points or matters as in his opinion will be useful for, or relevant to, any proceeding under this Act;

 (b) require any person-

(i) who transports or holds in custody, for delivery to or on behalf of any dealer any goods to give any information likely to be in his possession in respect of such goods or to permit inspection thereof, as the case may be ;

(ii) who maintains or has in his possession any books of accounts, registers or documents relating to the business of a dealer to produce such books of accounts, registers or documents for inspection.

(9) ¹²[If any person, who transports or holds in custody for delivery to or on behalf of any dealer any goods, on being required by the Commissioner under sub-clause (i) of clause (b) of sub-section (8) of this section so to do, fails to give the information likely to be in his possession in respect of such goods or fails to permit inspection thereof, as the case may be, the Commissioner may pass any order of detention or seizure of goods in his custody or possession in respect of which the default is committed.

 (10) The order of detention or seizure passed under sub-section (9) of this section shall remain in force so long as the person concerned does not furnish information required under sub-clause (i) of clause (b) of sub-section (8) or make proper arrangement for inspection of the goods under the said sub-section.

(11) If any person, who transports or holds in custody for delivery to or on behalf of any dealer any goods, on being required by the Commissioner under sub-clause (i) of clause (b) of sub-section (8) of this section so to do, fails to give any information likely to be in his possessions in respect of such goods or fails to permit inspection thereof, as the case may be, without prejudice to any other action which may be taken against such person, a presumption may be raised that the goods, in respect of which he was failed to furnish information or permit inspection, were meant for sale by him and he is a dealer liable to pay tax under this Act and the provisions of this Act shall apply accordingly.

 (12) If any person commits default under clause (a) or sub-clause (ii) of clause (b) of sub-section (8) of this section, the Commissioner may, without prejudice to any other action which may be taken against such person under any other provision of this Act, direct, after giving an opportunity of being heard to such person that such person shall pay by way of penalty a sum not exceeding fifty thousand rupees.

 (13) If the Commissioner is satisfied that any person on being required by him so to do, has failed to furnish the information in respect of the goods in his custody for delivery to or on behalf of any dealer or to permit inspection thereof under subclause (i) of clause (b) of sub-section (8) of this section, the Commissioner may, by order in writing and after giving opportunity of being heard to such person, impose by way of penalty a sum not exceeding three and a half time the amount of tax leviable under this Act on the goods in respect of which the default was committed.

(14) Where an order of detention or seizure of goods is made under the provisions of this section, the Commissioner or the officer so authorised in this behalf may release the goods on such person exercising the option of paying by way of penalty such sum as may be directed, not exceeding three and a half times the amount of tax leviable on such goods under this Act.

(15) Where any premises including the office, shop, godown, box, locker, safe, almirah or other receptacle have been sealed under sub-section (3) of this section, the Commissioner, on an application made by the owner or the person in occupation or in charge of such shop, godown, box, locker, safe, almirah or other receptacle, may order de-sealing thereof on such terms and conditions including furnishing of security for such sum in such form and manners as may be directed.

(16) Where an order of detention of seizure of goods is made under this section and no claims lodged by any person with respect to such goods within a period of three months from the date of such order, the Commissioner may, by order in writing, direct the auction of such goods:

 PROVIDED that if the goods, in respect of which an order of detention or seizure is made, are of a perishable nature or subject to speed and natural decay or when the expenses of keeping them in custody are likely to exceed their value, the same may be ordered to be auctioned as soon as it is practicable soon after an order of detention or seizure of such goods is made; and the amount so realised by the auction of goods shall be remitted in the Government reasury immediately.

(17) Where an order imposing penalty is passed under sub-section (13) or an option of paying penalty is exercised under sub-section (14) of this section and the person liable fails to pay the penalty within the prescribed period, the goods detained or seized may be sold by public auction and the sale proceeds deposited in Government Treasury.

(18) Auction of goods to be made under sub-section (16) or sub-section (17) of this section shall be carried out in the manner prescribed for disposal of goods under sub-section (6) of section 64 of this Act.

(19) Any person entitled to the sale proceeds of goods auctioned under the provisions of this section shall, on application made to the Commissioner and upon sufficient proof, be paid the sale proceeds of the goods auctioned, after deducting the expenses of the sale and other incidental charges and the amount of sales tax and penalty leviable under this Act.

(20) No action shall lie for damages or for any other claim by any person against the Commissioner or any other officer authorised in this behalf for anything done in good faith in discharge of their duties under this section.]

41A[¹³ Furnishing of information by owners of cold stores, warehouses, godowns, etc.

 (1) Notwithstanding anything to the contrary contained in any law for the time being in force every owner or lessee of a cold store, warehouse, godown or any such place, who stores goods for hire or reward shall maintain or cause to be maintained a correct and complete account indicating the full particulars of the person whose goods are stored and the quantity, value, date of delivery of such goods.

(2) Such accounts shall, on demand, be produced before the Commissioner or any officer authorised in this behalf who may take or cause to be taken such extracts therefrom or require such extracts to be furnished as he may consider necessary.

 (3) If any owner or lessee of a cold store, warehouse, godown or any other such place, who stores goods for hire or reward, contravenes any of the provisions of sub-section (1) or sub-section (2) in a manner likely to lead to evasion of any tax payable under this Act, the Commissioner may, without prejudice to any other action which may be taken against such owner or lessee under any other provision of this Act, direct, after giving an opportunity of being heard, that such owner or lessee shall pay by way of penalty a sum not exceeding three and a half times the tax, leviable on the goods in respect of which default is committed under sub-section (1) or sub-section (2).]

 1. Inserted vide Delhi Sales Tax (Second Amendment) Act, 2000, dt.19.2.2001 w.e.f. 19.2.2001.
2. Inserted vide Delhi Sales Tax (Second Amendment) Act, 2000, dt.19.2.2001 w.e.f. 19.2.2001.
3. Inserted vide Delhi Sales Tax (Second Amendment) Act, 2000, dt.19.2.2001 w.e.f. 19.2.2001.
4. Inserted vide Delhi Sales Tax (Second Amendment) Act, 2000, dt.19.2.2001 w.e.f. 19.2.2001.
5. Inserted vide Delhi Sales Tax (Second Amendment) Act, 2000, dt.19.2.2001 w.e.f. 19.2.2001.
6. Inserted vide Delhi Sales Tax (Second Amendment) Act, 2000, dt.19.2.2001 w.e.f. 19.2.2001.
7. Inserted vide Delhi Sales Tax (Second Amendment) Act, 2000, dt.19.2.2001 w.e.f. 19.2.2001.
8. Inserted vide Delhi Sales Tax (Second Amendment) Act, 2000, dt.19.2.2001 w.e.f. 19.2.2001.
9. Inserted vide Delhi Sales Tax (Second Amendment) Act, 2000, dt.19.2.2001 w.e.f. 19.2.2001.
10. Inserted vide Delhi Sales Tax (Second Amendment) Act, 2000, dt.19.2.2001 w.e.f. 19.2.2001.
11. Inserted vide Delhi Sales Tax (Second Amendment) Act, 2000, dt.19.2.2001 w.e.f. 19.2.2001.
12. Sub-section (9) to (20) were inserted vide Delhi Sales Tax (Second Amendment) Act, 2000. dt.19.2.2001 w.e.f. 19.2.2001.
13. Section 41A was inserted vide Delhi Sales Tax (Second Amendment) Act, 2000, dt. 19.2.2001.

Section 42. Power of Commissioner and other authorities to take evidence on oath, etc.

 (1) The Commissioner or any person appointed under sub-section (2) of section 9 to assist him shall, for the purposes of this Act, have the same powers as are vested n a court under the Code of Civil Procedure.1908 (5 of 1908), when trying a suit, in respect of the following matters, namely,-

(a) enforcing the attendance of any person and examining him on oath or affirmation ;

 (b) compelling the production of accounts and documents; and

(c) issuing commissions for the examination of witnesses, and any proceeding under this Act before the Commissioner or any person appointed under sub-section (2) of section 9 to assist him 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).

(2) Subject to any rules made in this behalf, any authority referred to in sub-section (1) may impound and retain in its custody for such period as it thinks fit any books of accounts or other documents produced before it in any proceedings under this Act :

 PROVIDED that a person appointed under sub-section (2) of section 9 to assist the Commissioner shall not;-

 (a) impound any books of accounts or other documents without recording his reasons for so doing ; or

(b) retain in his custody any such books or documents for a period exceeding thirty days, without obtaining the approval of the Commissioner therefor.

Section 43. Appeals

 (1) Any person aggrieved by any order, not being an order mentioned in section 44 passed under this Act or the rules made thereunder, may appeal to the prescribed authority :

PROVIDED that where an order, not being an order mentioned in section 44 or made under section 47 is passed by the Commissioner, the person aggrieved may appeal therefrom to the Appellate Tribunal.

(2) The Commissioner or any person aggrieved by an order passed in appeal by the prescribed authority may appeal to the Appellate Tribunal against such order.

(3) Subject to the provisions of section 62, no appeal shall be entertained unless it is filed within sixty days from the date of service of the order appealed against.

(4) Every appeal filed under this section shall be in prescribed form and shall be verified in the prescribed manner and in the case of an appeal to the Appellate Tribunal filed by any person other than the Commissioner , shall be accompanied by a fee of fifty rupees.

 (5) No appeal against an order of assessment with or without penalty or against an order imposing the penalty shall be entertained by an appellate authority unless such appeal is accompanied by a satisfactory proof of the payment of tax with or without penalty or, as the case may be, of the payment of the penalty in respect of which the appeal has been preferred :

PROVIDED that the appellate authority may, if it thinks fit, for reasons to be recorded in writing, entertain an appeal against such order-

(a) without payment of the tax and penalty, if any, or as the case may be, of the penalty, on the appellant furnishing in the prescribed manner security for such amount as it may direct, or

 (b) on proof of payment of such smaller sum, with or without security for such amount of tax or penalty which remains unpaid, as it may direct :

PROVIDED FURTHER that no appeal shall be entertained by to appellate authority unless it is satisfied that such amount of tax as the appellant may admit to be due from him has been paid.

 (6) The appellate authority may, after giving the appellant an opportunity of being heard,-

(a) confirm reduce, enhance or annual the assessment (including any penalty imposed), or

(b) set aside the assessment (including any penalty imposed) and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed,or

 (c) pass such order as it may think fit.

(7) Save as provided in section 45, an order passed by the Appellate Tribunal on appeal shall be final

Section 44. Non-appealable orders

No appeal and no application for revision shall lie against-

(a) a notice issued under this Act calling upon a dealer for assessment or asking a dealer to show cause as to why he should not be prosecuted for an offence under this Act ; or

(b) an order pertaining to the seizure or retention of books of accounts, registers and other documents ;or

(c) an order sanctioning prosecution under this Act ; or

(d) an interim order passed in the course of any proceedings under this Act.

Section 45. Statement of case to the High Court

(1) Within sixty days from the date of an order passed by the Appellate Tribunal under sub-sction (6) of section 43, the dealer or the Commissioner may, by application in writing, and accompanied, where the application is made by a dealer, by a fee of fifty rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and subject to the other provisions contained inthis section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court :

 Provided that the Appellate Tribunal may, if it is satisfied that the dealer or the Commissioner was prevented by sufficient cause from presenting the application within the period here-in-before specified, allow it to be presented within a further period not exceeding thirty days.

(2) If the Appellate Tribunal refuses to state the case which it has been required to do, on the ground that no question of law arises, the dealer or the Commissioner, as the case may be, may within thirty days of the communication of such refuse either withdraw his application (and if he does so, any fee paid shall be refunded), or apply to the High Court against such refusal.

 (3) If upon receipt of an application under sub-section (2), the High Court is not satisfied as to the correctness of the decision of the Appellate Tribunal, it may require the Appellae Tribunal to state the case and refer it, and on receipt of such requisition, the Appellate Tribunal shall state the case and refer it accordingly.

 (4) If the High Court is not satisfied that the statement in as case referred to it is sufficient to enable it to determine the question so raised thereby, the Court may refer the case back to the Appellate Tribunal for the purpose of making such additions thereto or alterations therein as it may direct in that behalf.

 (5) The High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall to the Appellate Tribunal a copy of such judgment under the seal of the Court and the signature of the Registrar, and the Appellate Tribunal shall dispose of the case accordingly.

(6) Where a reference is made to the High Court under this section, the costs [which shall not include the fee referred to in sub-section (1)] shall be in the discretion of the Court.

(7) The payment of the amount of tax and penalty (if any) due in accordance with the order of the Appellate Tribunal in respect of which an application has been made under sub-secion (1) shall not be stayed pending the disposal of such application or any reference made in consequence thereof but if such amount is reduced as a result of such reference, the excess tax paid shall be refunded in accordance with the provisions of section 30.

Section 46. Revision of orders prejudicial to revenue

(1) The Commissioner may call for and examine the record of any proceeding appointed under sub-section (2) of section 9 to assist him is erroneous in so far as it is prejudicial to the interests of revenue, he may, after giving the dealer an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment and penalty (if any) imposed or canceling the assessment and penalty (if any) imposed and directing fresh assessment

 PROVIDED that a final order under this section shall be made before the expiry of five years from the date of the order sought to be revised.

Section 47. Revision of other orders

(1) In the case of any order other than an order referred to in section 44 or to which section 46 applies, passed by a person appointed under sub-section (2) of section 9 to assist him, the Commissioner may, either on his own motion or on an application filed in accordance with such rules as may be prescribed, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such orders thereon, not being an order prejudicial to the dealer, as he thinks fit :

 PROVIDED that the Commissioner shall not revise any order under this subsection,-

 (a) where an appeal against the order is pending before the appellate authority under section 43 ; or

 (b) where, if such appeal lies, the time within which it may be filed has not expired ; or

 (c) where in the case of the second appeal, the dealer has not waived his right of appeal.

 (2) The Commissioner shall not on his own motion revise any order under this section after the expiry of two years from the date of the order sought to be revised.

 (3) In the case of an application for revision under this section by the dealer, the application shall be made within two years from the date on which the order in question was communicated to him or the date on which he otherwise comes to know of it, whichever is earlier.

Section 48. Rectification of mistakes

(1) The Commissioner or any person appointed under sub-section (2) of section 9 to assist him, may at any time within two years from the date of any order passed by the Commissioner or by that person, as the case may be, on his own motion, rectify any mistake apparent from the record and shall within a like period rectify any such mistake which has been brought to his notice by any person affected by such order :

PROVIDED that no such rectification shall be made, if it has the effect of enhancing the tax or reducing the amount or refund, unless the Commissioner or the person appointed under sub-section (2) of section 9 to assist him, as the case may be, has given notice in writing to the person likely to be affected by the order to his intention to do so and has allowed such person a reasonable opportunity of being heard.

 (2) The provisions of sub-section (1) shall apply to the rectification of a mistake by an appellate authority under section 43 as they apply to the rectification of a mistake by the Commissioner.

 (3) Where any matter has been considered and decided in any preceding by way of appeal or revision relating to an order referred to in sub-section (1) or sub-section (2), the authority passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under sub-section (1) or sub-sectin (2), as the case may be, in relation to any matter other than the matter which has been so considered and decided.

 (4) Where any such rectification has the effect of reducing the amount of the tax or penalty, the commissioner shall, in the prescribed manner, refund any amount due to such person.

(5) Where any such rectification has the effect of enhancing the amount of the tax or penalty, or reducing the amount of the refund, the Commissioner shall recover the amount due from such person in the manner provided for in Chapter V.

 (6) Save as provided in the foregoing sub-sections, and subject to such rules as may be prescribed, any assessment made or order passed under this Act or the rules made thereunder by any person appointed under section 9 or by the Appellate Tribunal may be reviewed by such person or by the Appellate Tribunal, as the case may be, suo moto or upon an application made in that behalf.

 (7) Before any order is passed under sub-section (6), which is likely to affect any person adversely, such person shall be given a reasonable opportunity of being heard.

 Section 49. Determination of disputed question

(1) If any question arises, otherwise than in proceedings before a court, or before the Commissioner has commenced assessment or reassessment of a dealer under section 23 or section 24, whether for the purposes of this Act,

(a) any person, society, club or association or any firm or any branch or department of any firm is a dealer; or

(b) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that term as given in clause (h) of section 2; or

 (c) any transaction is a sale, and if so, the sale price therefor; or

(d) any particular dealer is required to be registered; or

(e) any tax is payable in respect of any particular sale, or if the tax is payable, the rate thereof, the Commissioner shall, within such period as may be prescribed, make an order determining such question.

 Explanation.- For the purposes of this sub-section, the Commissioner shall be deemed to have commenced assessment or reassessment of a dealer under section 23 or section 24, when the dealer is served with any notice by the Commissioner under section 23 or section 24, when the dealer is served with any notice by the Commissioner under section 23 or section 24, as the case may be.

(2) The Commissioner may direct that the determination shall not affect the liability of any person under this Act as respects any sale effected prior to the determination.

 (3) If any such question arises from any order already passed under this Act or under the Bengal Finance (Sales Tax) Act, 1941, [Bengal] Act, VI of 1941], as then in force in Delhi, on such question shall be entertained for determination under this section; but such question may be raised in appeal against, or by way of revision of such order.

CHAPTER IX- Offences and Penalties

Section 50. Offences

(1) Whoever-

(a) holds, gives, produces or accepts a declaration under the second proviso to clause (a) of sub-section (2) of section 4, or under the first proviso to section 5, which he knows or has reason to believe to be false; or

 (b) carries on business as a dealer without obtaining a certificate of registration as required under sub-section (1) of section 14 or sub-section (1) of section 17; or

 (c) not being a registered dealer, represents when purchasing goods that he is a registered dealer; or

 (d) being a registered dealer, represents when purchasing any goods or class of goods not covered by his certificate of registration, that such goods or class of goods are covered by such certificate; or

(e) fails to comply with the provisions of sub-section (5) of section20; or

(f) fails to submit any return as required by sub-section (2) of section 21 by the prescribed date or submits a false return ; or

(g) not being a registered dealer, collects any amount by way of tax under this Act or make any collection of such tax otherwise than in accordance with this Act or the rules made thereunder; or

 (h) fails to keep a true account of the value of goods bought or sold by him as required by section 38, or fails when required so to do under that section, to keep any account or record of purchases or sales specified in any notice or notification referred to in that section; or

 (i) fails or neglects to issue cash memorandum or bills as required under section 39; or

 (j) knowingly maintains or produces incorrect accounts, registers or documents or knowingly furnishes incorrect information; or

 (k) neglects to furnish any information required by section40; or

 (l) refuses to comply with any requirements made of him under section 41 ¹[or section 41A]; or

(m) closes his places of business with a view to preventing inspection under section 41; or

(n) obstructs or prevents any officer making inspection, search or seizure under section 41; or performing any functions under section 64, as the case may be; or

 (o) being the owner or person in charge of a goods vehicle fails, neglects or refuses to comply with any of the requirements contained in section 64; or

 (p) aids or abets any person in the commission of any offence specified in clauses (a) to (o),

 shall be punishable with rigorous imprisonment for a term which may extend to six months or with fine, or with both, and where the offence is a continuing one, with a daily fine not exceeding two hundred rupees during the period of the continuance of the offence :

 PROVIDED that no prosecution for an offence under this Act shall be instituted in respect of the same facts in respects of which a penalty has been imposed under sub-section (6) of section 20, sub-section (6) of Section 23, section 55 section 56 or section 57:

PROVIDED FURTHER that a person shall not be deemed to have committed an offence under clause (b) if he had applied for registration under this Act in accordance with the provisions of sub-section (2) of section 14, or sub-section (2) of section 17, as the case may be.

(2) Notwithstanding anything contained in sub-section (1), if any person commits an offence under clause (a) or clause (f) or clause (j) or clause (l) or clause (m) or clause (o) of that sub-section and the court is satisfied that the offence has been committed willfully, he shall be punishable with rigorous imprisonment for a term which may extend to six months and with fine, and where the offence is a continuing one, with a daily fine not exceeding three hundred rupees during the period of the continuance of the offence.

 Section 51. 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 provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or that the commission of the offence 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 – means a body corposes of this section,-

(a) “company” means a body corporate, and includes a firm or other association of individuals; and

(b) “director”, in relation to a firm, means a partner in the firm.

Section 52. Cognizance of offences

(1) No court shall take cognizance of any offence under this Act or rule made thereunder except with the previous sanction of the Commissioner, and no court inferior to that of a Metropolitan Magistrate shall try any such offence.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), all offences punishable under this Act or rules made thereunder shall be cognizable and bailable

Section 53. Investigation of offences

(1) Subject to such conditions as may be prescribed, the Commissioner may authorise either generally or in respect of a particular case or class of cases any person appointed under sub-section (2) of section 9 to assist him to investigate all or any of the offences punishable under this Act.

(2) Every person so authorised shall, in the conduct of such investigation, exercise the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974), upon an officer in charge of a police station for the investigation of a cognizable offence.

Section 54. Composition of offences

(1) Subject to such conditions as may be prescribed, the Commissioner may accept, from any person alleged to have committed an offence under section 50 or under any rules made under this Act, either before or after the commencement of the proceedings against such person in respect of such offence, by way of composition for such offence, a sum not exceeding five thousand rupees or where the offence alleged to have been committed is under any of the clauses (a), (b), (c), (d) and (f) of that section, not exceeding three time the amount of tax which would thereby have been avoided, whichever is higher.

 (2) On payment in full of such sum as may be determined by the Commissioner under sub-sedtion (1);

 (a) no proceedings shall be commenced against such person as aforesaid; and

 (b) if any proceedings have already been commenced against such person as aforesaid, such proceeding shall not be further proceeded with.

Section 55. Imposition of penalty

 (1) If a dealer fails without reasonable cause to furnish any return by the prescribed date as required under sub-section (2) of section 21, or to pay the tax due according to the return as required under sub-section (3) of that section, the Commissioner may after giving the dealer an opportunity of being heard, direct that the dealer shall pay, by way of penalty in addition to the amount of tax payable, a sum not exceeding twice that amount or where no tax is payable a sum not exceeding two thousand rupees.

 (2) The penalties specified under sub-section (1) may be imposed by the Commissioner notwithstanding the fact that assessment proceeding have not been initiated against the dealer under section23.

Section 56. Penalty for concealment of sales or furnishing inaccurate particulars or making false representations

(1) If the Commissioner or any person appointed under sub-section (2) of section 9 to assist him, in the course of any proceedings under this Act, is satisfied that a dealer has concealed the particulars of his sales or has furnished inaccurate particulars of his sales, he may, after giving the dealer a reasonable opportunity of being heard, direct that the dealer shall pay, be way of penalty, in addition to the amount of tax payable, a sum not exceeding two and a half times the amount of tax which would thereby have been avoided.

(2) If a person commits an offence under clause (a) of section 50, the Commissioner or any person appointed under sub-section (2) of section 9 to assist him may, after giving that person a reasonable opportunity of being heard, by order in writing, impose upon such person by way of penalty, a sum not exceeding two and a half time the amount of tax which would thereby have been avoided.

(3) If a person purchasing goods commits an offence under clause (c) or cause d) of section 50, the authority which granted him, or as the case may be, is competent to grant him a certificate of registration under this Act, may, after giving him reasonable opportunity of being heard, by order in writing impose upon him by way of penalty, a sum not exceeding two and a half time the tax which would have been levied under this Act in respect of the sale to him of the goods, if the offence had not been committed.

Section 57. Penalty for contravening provision regarding collection of tax by dealers

 (1) If a person acts in contravention of the provisions of section 22, he shall be liable to a penalty not exceeding two and half times the tax wrongly collected :

 PROVIDED that the Commissioner shall not impose such penalty unless the person concerned has been given an opportunity of being heard.

Section 58. Service of notice when family is disrupted or firm is dissolved

 (1) Where a Hindu undivided family has been partitioned, notices under this Act shall be served on the person who was the last manager of the Hindu family, or if such person cannot be found, then on all adults who were members of the Hindu family, immediately before the partition.

(2) Where a firm or an association of persons is dissolved notices under this Act may be served on any person who was a partner (not being a minor) of the firm, or member of the association, as the case may be, immediately before its dissolution.

Section 59. Service of notice in the case of discontinued business

 Where an assessment is to be made in respect of business which has been discontinued, a notice under this Act shall be served in the case of a firm or an assoiciation of persons or any person who was a member of such firm or association at the time of its discontinuance or in the case of a company on the principal officer thereof.

 CHAPTER X- Miscellaneous

Section 60. Appearance before any authority in proceedings

 (1) Any person, who is entitled or require to attend before any authority in connection with any proceedings under this Act, may attend, -

(a) by a person authorised by him inwriting in his behalf, being a relative of a person regularly employed by him; or

(b) by the legal practitioner or chartered accountant who is not disqualified by or under sub-section(2); or

(c) by a sales tax practitioner who possesses the prescribed qualifications and is entered in the list, which the commissioner shall maintain in that behalf, who is not disqualified by or under sub-section (2).

 (2) The commissioner may, by order in writing and for reasons to be recorded therein, disqualify for such period as is stated in the order from attending before any such authority, any legal practitioner , chartered accountant or sales tax practitioner;

 (i) who has been dismissed from Government service; or

(ii) who being a legal practitioner or chartered accountant is found guilty of misconduct in connection with any proceedings under this Act by an authority empowered to take dusciplinary action against the members of the profession to which he belongs; or

 (iii) who being a legal practitioner is found guilty of such misconduct by the Commissioner.

 (3) No order of disqualification shall be made in respect of any particular person unless he has been given a reasonable opportunity of being heard.

 (4) Any person against whom any order of disqualification is made under this section may, within one month of the date of communication of such order, appeal to the ¹[Lieutenant Governer] to have the order cancelled.

(5) The order of the Commissioner shall not take effect until one month of the making thereof or when an appeal is preferred, until the appeal is decided.

(6) The commissioner may at any time suo moto or on application made to him in this behalf, revoke any order made against any person under sub-section (2) and there uponsuch person shall cease to be disqualified.

1. Inserted vide Delhi Sales Tax (Second Amendment) Act, 2000, dt. 19.2.2001 w.e.f. 19.2.2001

Section 61. Change of an incumbent of an office

(1)Whenever in respect of any proceeding under this Act the Commissioner or any person appointed under sub-section (2) of section 9 to assist him, ceases to exercise jurisdiction and is succeeded by another who has and exercises jurisdiction, the person so succeeding may continue the proceeding was left by his predecessor :

 (1)PROVIDED that the dealer concerned may demand that before the proceeding is so continued, the previous proceeding is so continued, the previous proceeding or any part thereof be reopened or that before any order of assessment is passed against him, he be reheard.

Section 62. Extension of period of limitation in certain cases

(1) An appellate authority may admit an appeal under section 43 after the period of limitation laid down in that section, if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within such period.

 (2) In computing the period laid down under sections 43,45,46 and 47, the provisions of sections 4 and 12 of the Limitation Act, 1963 (36 of 1963), shall, so far as may be, apply.

 (3) In computing the period of limitation prescribed by or under any provision of this Act, or the rules made thereunder, other than sections 43,45,46 and 47, any period during which any proceeding is stayed by an order or injunction of any court shall be excluded.

 CHAPTER X- Miscellaneous

Section 63. Returns, etc. to be confidential

 (1) All particulars contained in any statement made, return furnished or accounts or documents produced in accordance with this Act, or in any record of evidence given in the course of any proceedings under this Act, other than this proceedings before a criminal court, shall save as provided in sub-section (3), be treated as confidential, and notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), no court shall , save as aforesaid, be entitled to require any servant of the Government to produce if any such statement, return, account, document or record or any part thereof, or to give evidence before it in respect thereof.

(2) If, save as provided in sub-section (3), any servant of the Government discloses any of the particulars referred to in sub-section (1), he shall be punishable with imprisonment which may extend to six months, and shall also be liable to fine.

 (3) Nothing in this section shall apply to the disclosure -

 (a) of any of the particulars referred to in sub-section (1) for the purposes of investigation or prosecution under this Act or the Indian Penal Code (45 of 1860) or any other enactment for the time being in force; or

(b) of such facts to an officer of the Central Government or any State Government as may be necessary for verification of such facts or for the purposes of enabling that Government to levy to realise any tax imposed by it; or

 (c) of any of the particulars where such disclosure is occasioned by the lawful employment under this Act of any process for the service of any notice or recovery of any demand ; or

(d) of any of the particulars to a civil court in any suit or proceeding to which the Government or any sales tax authority is a party and which relates to any matter arising out of any proceeding under this Act or under any other law for the time being in force authorising any sales tax authority to exercise any powers thereunder; or

 (d) of any such particulars to a civil court in any suit or proceeding to which the Government or any sales tax authority is a party and which relates to any matter arising out of any proceeding under this Act or under any other law for the time being in force authorising any sales tax authority to exercise any powers thereunder ; or of any such particulars by any public servant where the disclosure is occasioned by the lawful exercise by him of his powers under the Indian Stamp Act, 1899 (2 of 1899) to impound an insufficiently stamped document ; or

(f) of any such particulars to the Reserve Bank of India as are required by that Bank to enable it to compile financial statistics of international investment and balance of payment ; or

 (g) of any such particulars to any officers appointed by the controller and Auditor-General of tax receipts or refunds ; or

 (h) of any such particulars relevant to any inquiry into a charge of misconduct in connection with income-tax proceedings against a legal practitioner or chartered accountant, to the authority empowered to take disciplinary action against members of the profession to which he belongs ; or

(i) of such particulars to the officers of the Central Government or any State Government for such purposes, as the ²[Lieutenant Governer] may by general or special order direct.

 2. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.

Section 64. Setting upof check-post and barriers

(1) the 3[Lieutenant Governer] may , by notification in the Official Gazette, setup check-posts or barriers, or both, at any place in Delhi with a view to preventing evasion of tax and other dues payable under this Act.

 (2) The owner or person in charge of a goods vehicle shall carry with him a goods vehicles record, a trip sheet or a log book, as the case may be and a bill of sale or delivery note containing such particulars as may be prescribed in respect of the goods vehicle and produce the same before any officer in charge of check post or barrier or any other officer as may be empowered by the 4[Lieutenant Governer] in this behalf.

 (3) The owner or person in charge of goods vehicle entering or leaving Delhi shall also file a declaration containing such particulars in the prescribed form obtainable from the prescribed authority and in such manner as may be prescribed, before the officer incharge of a check-post or barrier or before the other officer empowered as aforesaid:

 PROVIDED that where the owner or person in charge of a goods vehicle after filing a declaration at the time of entering Delhi that the goods are meant to be carried toa place outside Delhi, fails, without reasonable cause, to carry such goods outside Delhi within the prescribed period, he shall, in addition to the payment of tax, if any, be liable to a penalty not exceeding two and a half times the tax that would have been payable had the goods been sold inside Delhi or one thousand rupees, whichever is more.

 (4) At every check-post or barrier, or at any other place when so required by an officer empowered by the 5[Lieutenant Governor] in this behalf, the driver or any other person in charge of a goods vehicle shall stop the vehicle and keep it stationary so long as may be required by the officer in charge of the check-post or barrier or the officer empowered as aforesaid to search the goods vehicle or part thereof, examine the contents therein and inspect all records relating to the goods carried, which are in the possession of such driver or other person in charge, who shall, if so required, give his name and address and, the name and address or the owner of the vehicle as well as those of the consignor and consignee of the goods.

 6[(5) If on an examination of the contents in a goods vehicle or the inspection of records relating to the goods carried, any officer empowered by the lieutenant Governer in this behalf has reason to believe that the owner or person in charge of such goods vehicle is not carrying the documents as required by sub-section (2) or is not carrying proper and genuine documents or is attempting to evade payment of the tax under this Act, he may, for reasons to be recorded in writing and after hearing the owner or person in charge of goods vehicle, detain the goods or impound the goods vehicle along with the goods and documents relating to the goods and the goods vehicle:

PROVIDED that the goods vehicle, the goods or the documents so impounded or detained may be alllowed to be released in case the owner or his agent or the person in charge of the goods vehicle requests for the time to adduce further evidence in respect of goods ordered to be detained or impounded subject to furnishing of security to the satisfaction of such officer in such form and in such manner as may be prescribed for an amount of tax payable, if such goods were sold in Delhi:

PROVIDED FURTHER that where the owner or his agent or person in charge of the goods vehicle exercises the option of paying by way of penalty a sum equal to three and a half times the tax, which in the opinion of the officer so empowered, would be leviable on such goods, if such goods were sold in Delhi, the officer empowered in this behalf instead of detaining or impounding the goods vehicles shall release the same.

(5A) Where the goods are being carried without the documents or without proper and genuine documents or without being properly accounted for in the documents referred to in sub-section (2) of this section, the Commissioner or the officer so empowered by the lieutenant Governer in this behalf, may levy a penalty not exceeding three and a half times the amount of tax payable on such goods after giving reasonable opportunity of being heared to the person likely to be effected, against the proposed penalty.

 (5B) An officer empowered by the lieutenant Governer in this behalf to act under sub-section (5), may, in this discretion, permit the owner or person in charge of goods detained under sub-section (5) subject to an undertaking given by the owner or person incharge of goods vehicle-

 (i) that the goods shall be kept in the office, godown or other place within Delhi, belonging to the owner of the goods vehicle and in the custody of such owner,

 (ii) that the goods shall not be delivered to the consignor, consignee or any other person without orders in writing of the said officer, and for this purpose the person in charge of the goods vehicle shall furnish an authorization from the owner of the goods vehicle authorizing him to give such undertaking on his behalf.]

 (6) Where the security required to be furnished under sub-section (5) is not furnished within the prescribed period such goods shall be disposed of in such manner and subject to such conditions as may be prescribed.

Explanation:- For the purposes of this section, “goods vehicle” shall include a motor vehicle, vessel, boat, animal, and any other form of conveyance.

Section 65. Publication of names, etc of dealers whose certificates of registration are cancelled

The Commissioner shall, at intervals not exceeding three months, publish in the Official Gazette such particulars as may be prescribed the dealers whose certificate of registration are cancelled under the provision of this Act.

 CHAPTER X- Miscellaneous

Section 66. Exemptions

(1) If the ¹[lieutenant Governer] is of opinion that it is necessary or expedient in the public interest so to do, he may ²[***], exempt, by notification in the Official Gazette, and subject to such conditions, if any impose specified class of sales by any specified class of dealers from payment of the whole or any part of the tax payable under this Act.

 (2) If inrespect of any sales which are exempt from payment of tax under sub-section (1), a breach of any of the conditions subject to which such exemption was granted is committed, the dealer is responsible for such breach shall be liable to pay tax in respect of all such sales as if no such exemption had been granted.

1. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
2. Words “with the previous approval of the Central Government” were deleted by Delhi Act 1 of 1998, w.e.f. 2.3.1998

 Section 67. Bar of suits in civil courts

(1) No suit shall be brought in any civil court to set aside or modify any assessment made or any order passed under this Act or the rules made thereunder and no prosecution, suit or other proceeding shall lie against the Government or any officer of the Government for anything in good faith done or intend to be done under this Act or the rules made thereunder.

Section 68. Transfers during pendency of proceedings void

Where, during the pendency of any proceedings under this Act, any person creates a charge on or parts with the possession by way of sale, mortgage, gift or exchange or any other mode of transfer whatsoever, of any of his assets in favour of other person, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by such person as a result of the completion of the said proceedings.

Section 69. Chapter XXXVI of the Code of Criminal Procedure, 1973, not to apply to certain offences

Nothing in Chapter XXXVI, of the Code of Criminal Procedures, 1973 (2 of 1974) shall apply to -

 (i) any offence punishable under this Act ;or

(ii) any other offence which under the provisions of that Code may be tried along with such offence reffered to in clause (i) or clause (ii) may be taken cognizance of by the court having jurisdiction under this Act as if the provisions of that Chapter were not enacted. 70. Application of the provisions of the Delhi Land Reforms Act, 1954 for purposes of recovery of sales tax recoverable as arrears of land revenue

 For the purposes of recoverable as arrear of land revenue under this Act, the provisions of Delhi Land Reforms Act, 1954, as to recovery of arrears of land revenue shall notwithstanding anything contained in that Act or in any other enactment, be deemed to be in force throught Delhi and the provisions of the Revenue Recovery Act, 1890 (1 of 1890) shall have effect accordingly.

CHAPTER X- Miscellaneous

Section 71. Power to make rules

(1) The ¹[Lieutenant Governer] may make rules for carrying out the purposes of this Act.

 (2) In particulars and without prejudice to the generality of the for going power, such rules may provide for, -

(a) the further period after the date of expiry of three consecutive years referred to in sub-section (3) of section 3 for which liability to pay tax of dealer shall continue ;

 ²[(b)the particulars to be contained in a declaration under sub-clause (v) of clause (a) of sub-section (2) of section 4, or under section 5, as the case may be, the form of such declaration, the authority from whom and the manner and conditions subject to which such forms shall be obtainable and the manner in which and the time within which such declaration is to be furnished ;]

 (c) the period of turnover, the manner in which the turnover in relation to sale of any goods under this Act shall be determined and the sales turnover which may be deducted under sub-clause (vi) of clause (a) of sub-section (2) of section 4 ;

(d) the restrictions and conditions subject to which the Commissioner may delegate his powers under section 10

(e) the authority to whom applications for registration under section 14,15,16 and 17 may be made and the form of such applications and the fees payable in respect thereof ;

 (f) the procedure for and other matters incidential to registration of dealers, the granting of certificates of registration, the period within which such certificates shall be granted and the forms of such certificates ;

(g) the intervals at which, and the manner in which, the tax under this Act hall be payable under section 21 ;

 (h) the returns to be furnished under sub-section (2) of section 21 and the dates by which, and the authority to whom, such returns shall be furnished;

(i) the procedure to be followed for assessment under section 23;

(j) the circumtances in which, and the conditions subject to which, a dealer may be permitted to pay a lump sum by way of composition under section 29 and the manner of determining such sum;

(k) the form in which claims for refund or set-off may be preferred, the manner in which such claims for refund shall be verified and the refunds or set-off under this Act shall be allowed ;

 (l) the authority to whom information shall be furnished under section 40 ;

(m) the conditions under which the production of accounts or documents of accounts or the furnishing of information may be required under sub-section (1) of section 41 ;

(n) the form and manner in which, and the authority to whom, appeals against assessment may be filed under section 43, the manner in which such appeals shall be verified and the fees payable in respect thereof and the procedure, to be followed by the authority ;

(o) the form and the manner in which applications for revision under section 47 or for review under sub-section (5) of section 48 may be filed and the fee payable in respect thereof ;

(p) the conditions subject to which the Commissioner may authirise the persons appointed under sub-section (2) of section 9 to assist him to investigate offences under sub-section (1) of section 53

 (q) the conditions under which offences may be compounded under section 54 ;

 (r) the manner in which, and the time within which, applications shall be made (including fees payable in respect thereof), information furnished, securities given and notices served under this Act ;

 (s)any other matter which is required to be, or may be, prescribed.

 (3) Any rules made under this Act may provide that a contravention thereof shall be punishable with fine which may extend to five hundred rupees, and in the case of a continuing contravention, with an additional fine which may extend to twenty-five rupees for every day during which such contravention continues after conviction for the first such contravention.

1. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
2. Substituted by Delhi Sales Tax (Second Amendment) Act, 2000, dt.19.2.2001 w.e.f. 19.2.2001, earlier read as : “the particulars to be contained in a declaration under sub-clause (v) of clause (a) of sub sub-section (2) of section 4, or under sub section 5, as the case may be, the form of such declaration, the authority from whom such forms shall be obtainable and the manner in which and the time within which such declaration is to be furnished ;”.

CHAPTER X- Miscellaneous

Section 72. Rules to be laid before Legislative Assembly

 Every rule made under this Act shall be laid, as soon as may be after it is made before the Legislative Assembly of the ¹[National Capital Territory of Delhi], 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 or the successive sessions aforesaid, ²[the House agrees in making any modification in the rule or the House agrees] that the rule should not be made, the rule shall 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 without prejudice to the validity of anything previously done under that rule.

 1. Subs. for “Union Territory” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
2. Subs. for “both Houses agree in making any modification in the rule or both Houses agree” by Delhi Act 1 of 1998, w.e.f. 2.3.1998

CHAPTER X- Miscellaneous

Section 73. Repeal and savings

(1) The Bengal Finance (Sales Tax) Act, 1941, (Bengal Act VI of 1941 ) as in force in Delhi (here in after referred to as the said Act), is hereby repealed.

 PROVIDED that such repeal shall not effect the previous operation of the said Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder and subject there to, any thing done or any action taken including any appointment, notification, notice, order, rule, form or certificate in the exercise of any power conferred by or under the said Act shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken, and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accures under this Act.

(2) Any application for revision pending immediately before the date on which the Appellate Tribunal is constituted under section 13 (hereafter in this section referred to as the notified date), before the Commitioner under the Bengal Finance (Sales Tax) Act, 1941, (Bengal Act VI of 1941) as in force in the ¹[National Capital Territory of Delhi], shall on such date stand transferred to, and be disposed of by the Tribunal :

 PROVIDED that no application for revision shall be transferred to the Appellate Tribunal if the petitioner making the application for revision waives his right of appeal to the Tribunal if the petitioner making the application for revision waives his right of appeal to the Tribunal within fifteen days after the notified date, in which case the application for revision shall be disposed of by the Commissioner as if it were an application for revision made under section 47.

 (3) Any application for revision, pending immediately before the notified date, before the Commissioner and transferred to the Appellate Tribunal under sub-section (2) shall be disposed of by the Appellate Tribunal as if it were an appeal made under and in accordance with the provisions of section 43 of this Act.

 (4) Where an appeal against an order passed by an officer under this Act lies to the Appellate Tribunal after the notified date, and the period of limitation specified for filing such appeal under this Act has not expired, then , such appeal shall lie to the Tribunal within thirty days of the notified date or within the expiry of the period of limitation specified for filing such appeal, whichever is later.

1. Subs. for “Union Territory” by Delhi Act 1 of 1998, w.e.f. 2.3.1998

Section 74. Removal of difficulties

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by general or special order published in the Official Gazette,make such provisions not inconsistent with the provision of this act as appear to it to be necessary or expedient for the removal of the difficulty:

PROVIDED that no such order shall be made after the expiration of one year from the commencement ofthis Act.

 (2) Every order made 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 will be comprised in one session or in two of more successive sessions, and if, before the expiry of the session immediately following the session or successive aforesaid, both Houses agree in making any modification in the order or both Houses agree that the order should not be made, the order shall thereafter have effect only in such modified form or to be no effect, as the case may be ; so, however, that any such modification or annulment shallbe without prejudice to the validity of anything previously done under that order

Section 75. Transitional provisions

 Where a dealer liable to pay tax under the Bengal Finance (Sales Tax) Act, 1941, (Bengal Act, VI of 1941) as in force in Delhi immediately before the commencement of this Act is not liable to pay tax under the provisions of this Act, he shall, notwithstanding the repeal of the first mentioned Act, continue to be liable to pay tax on the sales made by him after such commencement of all goods -

 (i) purchased by him before such commencement,

 (ii) manufactured by him before or after such commencement out of raw material purchased before such commencement.

THE FIRST SCHEDULE

[Notification No. F.4(52)/99-Fin.(G)(i) dated 15.01.2000 and Notification No. F.4(52)/99-Fin.(G)(ii) dated 15.01.2000 w.e.f. 16.01.2000,

as amended from time to time]

THE SECOND SCHEDULE

[Notification No. F.4(52)/99-Fin.(G)/1519 dated 15.01.2000 and Notification No. F.4(52)/99-Fin.(G)(iv) dated 15.01.2000 w.e.f. 16.01.2000, as amended from time to time]

THE THIRD SCHEDULE

[The Delhi Sales Tax (Amendment) Ordinance, 2000; No. F.4(52)-Fin.(G)/1435 dated 05.01.2000

w.e.f. January 06, 2000 as amended from time to time]

THE FOURTH SCHEDULE

SPECIAL RATE OF TAX

[Notification No. F.4(52)/99 – Fin.(G)(viii)/1564 dated 15.01.2000

w.e.f. 16.01.2000]

GENERAL RATE OF TAX

[Notification No. F.4(52)/99 – Fin.(G)(viii)/1564 dated 15.01.2000
w.e.f. 16.01.2000]

Registration Act

November 30, 2014

Section 1. Short title, extent and commencement

[Act No. 16 of 1908]

[18th December 1908]

An Act to consolidate the enactments relating to the Registration of Documents.

Whereas it is expedient to consolidate the enactments relating to the registration of documents;

It is hereby enacted as follows:

(1) This Act may be called the ¹[Registration Act, 1908.

²[(2) It extends to the whole of India except the State of Jammu and Kashmir:

Provided that the State Government may exclude any districts or tracts of country from its operation.]

(3) It shall come into force on the first day of January, 1909.

——————–

1. The word “Indian” omitted by Act No. 45 of 1969.

2. Subs. by Act No. 3 of 1951.

Section 2. Definitions

In this Act, unless there is anything repugnant in the subject or context, -

(1) “Addition” means the place of residence, and the profession, trade, rank and title (if any) of person described, and, in the case of an Indian, his father’s name, or where he is usually described as the son of his mother, then his mother’s name;

(2) “Book” includes a portion of a book and also any number of sheets connected together with a view of forming a book or portion of a book;

(3) “District” and “sub-district” respectively mean a district and sub-district formed under this Act;

(4) “District Court” includes the High Court in its ordinary original Civil jurisdiction;

(5) “Endorsement” and “endorsed” include and apply to an entry in writing by a registering officer on a rider or covering slip to any document tendered for Registration under this Act;

(6) “Immovable property” includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass;

[(6A) “India” means the territory of India excluding the State of Jammu and Kashmir ;

(7) “ Lease” includes a counter part, kabuliyat, an undertaking to cultivate or occupy, and an agreement to lease;

(8) “Minor” means a person who, according to the personal law to which he is subject, has not attained majority;

(9) “Movable property” includes standing timber, growing corps and grass, fruit upon and juice in trees, and property of every other description, except immovable property; and

(10) “Representative” includes the guardian of a minor and the committee or other legal curator of a lunatic or idiot.

Section 3. Inspector General of Registration

(1) The State Government shall appoint an officer to be the Inspector General of Registration for the territories subject to such Government:

Provided that the State Government may, instead of making such appointment, direct that all or any of the powers and duties hereinafter conferred and imposed upon the Inspector-General shall be exercised and performed by such officer or officers, and within such local limits, as the State Government appoints in this behalf.

(2) Any Inspector-General may hold simultaneously any other officer under the Government.

Section 4. Repealed

4. [Repealed.]

Section 5. Districts and sub-districts

(1) For the purposes of this Act, the State Government shall form districts and sub-districts, and shall prescribe, and may alter, the limits of such districts and sub-districts,

(2) The districts and sub-districts formed under this section, together with the limits thereof, and every alternation of such limits, shall be notified in the Official Gazette.

(3) Every such alternation shall take effect on such day after the date of the notification as is therein mentioned.

Section 6. Registrars and Sub-Registrars

The State Government may appoint such person, whether public officers or not, as it thinks proper, to be Registrars of the several districts, and to be Sub-Registrars of the several sub-districts, formed as aforesaid, respectively.

Section 7. Offices of Registrar and Sub-Registrar

(1) The State Government shall establish in every district and office to be styled the office of the Registrar and in every sub-district an office or offices to be styled the office of the Sub-Registrar or the offices of the Joint Sub-Registrars.

(2) The State Government may amalgamate with any office of a Registrar any office of a Sub-Registrar subordinate to such Registrar, and may authorize any Sub-Registrar whose office has been so amalgamated to exercise and perform, in addition to his own powers and duties, all or any of the powers and duties of the Registrar to whom he is subordinate:

Provided that no such authorization shall enable a Sub-Registrar to hear an appeal against an order passed by himself under this Act.

Section 8. Inspectors of Registration-offices

(1) The State Government may also appoint officers, to be called Inspectors of Registration-offices, and may prescribe the duties of such officers.

(2) Every such Inspector shall be subordinate to the Inspector-General.

Section 9. Repealed

9. [Repealed]. -

Section 10. Absence of Registrar or vacancy in his office

(1) When any Registrar, other than the Registrar of a district including a Presidency-town is absent otherwise than on duty in his district, or when his office is temporarily vacant, any person whom the Inspector-General appoints in this behalf, or, in default of such appointment, the Judge of the District Court within the local limits of whose jurisdiction the Registrar’s office is situate, shall be the Registrar during such absence or until the State Government fills up the vacancy.

(2) When the Registrar of a district including a Presidency-town is absent otherwise than on duty in his district, or when his office is temporarily vacant, any person whom, the Inspector-General appoints in this behalf shall be Sub-Registrar during such absence, or until the State Government fills up the vacancy.

Section 11. Absence of Registrar on duty in his district

When any Registrar is absent from his office on duty in his district, he may appoint any Sub-Registrar or other person in his district to perform, during such absence, all the duties of a Registrar except those mentioned in Sections 68 and 72.

Section 12. Absence of Sub-Registrar or vacancy in his office

When any Sub-Registrar is absent, or when his office is temporarily vacant, any person whom the Registrar of the district appoints in this behalf shall be Sub-Registrar during such absence, or until the vacancy is filled up.

Section 13. Report to State Government of appointments under Sections 10, 11 and 12

(1) All appointments made under Section 10, Section 11 or Section 12 shall be reported to the State Government by the Inspector-General.

(2) Such report shall be either special or general, as the State Government directs.

Section 14. Establishments of registering officers

[(1) Omitted

(2) State Government may allow proper establishments for the several offices under this Act.

Section 15. Seal of registering officers

The several Registrars and Sub-Registrars shall use a seal hearing the following inscription in English and in such other language as the State Government directs:-

“The seal of the Registrar (or of the Sub-Registrar) or”

Section 16. Register-books and fire-proof boxes

(1) The State Government shall provide for the office of every registering officer the books necessary for the purposes of this Act.

(2) The books so provided shall contain the forms form time to time prescribed by the Inspector-General, with the sanction of the State Government, and the pages Of Such books shall be consecutively numbered in print, and the number of pages in each book shall be certified on the title-page by the officer by whom Such books are issued.

(3) The State Government shall supply the office of every Registrar with a fireproof box, and shall in each District make suitable provision for the safe custody of the records connected with the registration of documents in such districts

Section 17. Documents of which registration is compulsory

(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No, XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-

(a) Instruments of gift of immovable property;

(b) Other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) Non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) Lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) Non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:

Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

(2) Nothing in clauses (b) and (c) of sub-section (1) applies to. -

(i) Any composition-deed; or

(ii) Any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property-, or

(iii) Any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or party of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) Any endorsement upon or transfer of any debenture issued by any such Company; or

(v) Any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) Any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding, or (vii) Any grant of immovable property by Government or

(viii) Any instrument of partition made by a Revenue-officer; or

(ix) Any order granting a loan or instrument of collateral security granted under the land improvement Act, 1871, or the Land Improvement Loans Act, 1883; or

(x) Any order granting a loan under the Agriculturists Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or

(xa) Any order made under the Charitable Endowments Act, 1890. (6 of 1890) vesting any property in a Treasurer of Charitable Endownments or divesting any such Treasurer of any property; or

(xi) Any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) Any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-officer.

Explanation. – A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.

(3) Authorities to adopt a son, executed after the Ist day of January, 1872, and not conferred by a will, shall also be registered.

Section 18. Document of which registration is optional

Any of the following document may be registered under this Act, namely:

(a) Instruments (other than instrument of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;

(b) Instruments acknowledging the receipt or payment of any consideration of account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;

(c) Leases of immovable property for any term not exceeding one year, and leases exempted under Section 17;

(cc) Instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future any right title or interest, whether vested or contingent, or a value less than one hundred rupees, to or in immovable property;

(d) Instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;

(e) Wills; and

(f) All other documents not required by Section 17 to be registered.

Section 19. Documents in language not understood by registering officer

If any document duly presented for registration be in a language which the registering officer does not understand, and which is not commonly used in the district, he shall refuse to register the documents, unless it be accompanied by a true translation into a language commonly used in the district and also by a true copy.

Section 20. Documents containing interlineations, blanks, erasures or alterations

(1) The registering officer may in his discretion refuse to accept for registration any document in which any interlineations, blank, erasure or alteration appears, unless the persons executing the document attest with their signature or initials such interlineations, blank, erasure or alteration.

(2) If the registering officer registers any such document, he shall, at the time of registering the same, make a note in the register of such interlineations, blank, erasure or alteration.

Section 21. Description of property and maps or plans

(1) No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same.

(2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered.

(3) Other houses and lands shall be described by their name, if any, and as being the territorial division in which they are situate, and by their superficial contents, the roads and other properties on which they abut, and their existing occupancies, and also, whenever it is practicable, by reference to a Government map or survey.

(4) No non-testamentary document containing a map or plan of any property comprised therein shall be accepted for registration unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of true copies of the map or plan as are equal to the number of such districts.

Section 22. Description of houses and land by reference to Government maps or surveys

(1) Where it is, in the opinion of the State Government, practicable to describe houses, not being houses in towns, and lands by reference to a Government map or survey, the State Government may, by rule made under this Act, require that such houses and lands as aforesaid shall, for the purposes of Section 21, be so described.

(2) Save as otherwise provided by any rule made under sub-section (1), failure to comply with the provision of Section 21, subsection (2) or sub-section (3), shall not disentitle a document to be registered if the description of the property to which it relates is sufficient to identify that property.

Section 23. Time for presenting documents

Subject to the provisions contained in Section 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:

Provided that a copy of a decree or order may he presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final.

Section 23 A. Re-registration of certain documents

Notwithstanding anything to the contrary contained in this Act, if in any case a document requiring registration has been accepted for registration by a Registrar or Sub-Registrar from a person not duly empowered to present the same, and has been registered, any person claiming under such document may, within four months from his first becoming aware that the registration of such document is invalid, present such document or cause the same to be presented, in accordance with the provision of Part VI for re-registration in the office of the Registrar of the district in which the document was originally registered; and upon the Registrar being satisfied that the document was so accepted for registration from a person not duly empowered to present the same, he shall proceed to the re-registration of the document as if it has not been previously registered, and as if such presentation for re-registration was a presentation for registration made within the time allowed therefor under Part IV, and all the provisions of this Act, as to registration of documents, shall apply to such re-registration; and such document, if duly re-registered in accordance with the provisions of this section, shall be deemed to have been duly registered for all purposes from the date of its original registration:

Provided that, within three months, from the twelfth day of September 1917, any person claiming under a document to which this section applies may present the same or cause the same to be presented for re-registration in accordance with this section, whatever may have been the time when the first became aware that the registration of the document was invalid.

Section 24. Documents executed by several persons at different times

Where there are several persons executing a document at different times, such document may be presented for registration and re-registration within four months from the date of each execution.

Section 25. Provision where delay in presentation is unavoidable

(1) If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in India is not presented for registration in after the expiration of the time herein before prescribed in that behalf, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration-fee, such document shall be accepted for registration.

(2) Any application for such direction may be lodged with a Sub-Registrar, who shall, forthwith forward it to the Registrar to whom he is subordinate.

Section 26. Documents executed out of India

When a document purporting to have been executed by all or any of the parties out of India is not presented for registration in after the expiration of the time hereinbefore prescribed in that behalf, the registering officer, if satisfied. -

(a) That the instrument was so executed, and

(b) That it has been presented for registration within four months after its arrival in India,

May, on payment of the proper registration-fee, accept such document for registration.

Section 27. Wills may be presented or deposited at any time

A will may at any time be presented for registration or deposited in manner hereinafter provided.

Section 28. Place for registering documents relating of land

Save as in this Part otherwise provided every document mentioned in Section 17, sub-section (1), clauses (a), (b), (c), (d) and (e) Section 17, subsection (2), in so far as such document affects immovable property, and Section 18, clauses (a), (b) (c) and (cc), shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.

Section 29. Place for registering other documents

(1) Every document not being a document referred to in Section 28 or a copy of a decree or order, may be presented for registration either in the office of the Sub-Registrar in whose sub-district the document was executed, or in the office of any other Sub-Registrar under the State Government at which all the persons executing and claiming under the document desire the same to be registered.

(2) A copy of a decree or order may be presented for registration in the office of the Sub-Registrar in whose sub-district the original decree or order was made, or, where the decree or order does not affect immovable property, in the office of any other Sub-Register under the State Government at which all the persons claiming under the decree or order desire the copy to be registered.

Section 30. Registration by Registrars in certain cases

(1) Any Registrar may in his discretion receive and register any document which might be registered by any Sub-Registrar subordinate to him.

(2) ¹[The Registrar of a district in which a Presidency-town in included and the Registrar of the Delhi district] may receive and register any document referred to in Section 28 without regard to the situation in any part of India of the property to which the document relates.

——————–

1. Subs. by Act No. 45 of 1969, for “the Registrar of t district including a Presidency-town”.

Section 31. Registration or acceptance for deposit at private residence

In ordinary cases the registration or deposit of documents under this Act shall be made only at the office of the officer of the officer authorized to accept the same for registration or deposit:

Provided that such officer may on special cause being shown attend at the residence of any person desiring to present a document for registration or to deposit a will, and accept for registration or deposit such document or will.

Section 32. Persons to present documents for registration

Except in the cases mentioned in Sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration-office,-

(a) By some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or

(b) By the representative or assign of such a person, or

(c) By the agent of such a person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.

Section 33. Power-of-attorney recognizable for purposes of Section 32

(1) For the purposes of Section 32, the following powers-of-attorney shall alone be recognized namely:-

(a) If the principal at the time of executing the power-of-attorney resides in any part of India in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;

(b) If the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power-of-attorney executed before and authenticated by any Magistrate;

(c) If the principal at the time aforesaid does not reside in India, a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian consul or Vice-Consul, or representative of the Central Government:

Provided that the following persons shall not be required to attend at ally registration office or Court for the purposes of executing ally such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely:-

(i) Persons who by reason of bodily infirmity are unable without risk or serious inconvenience are to attend;

(ii) Persons who are in jail under civil or criminal process; and

(iii) Persons exempt by law form personal appearance in Court.

Explanation. -In this sub-section “India” means India, as defined in clause (28) of Section 3 of the General Clauses Act, 1897.

(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid.

(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.

(4) Any power-of-attorney mentioned in this section may he proved by the production of it without further proof when it purports oil the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf.

Section 34. Enquiry before registration by registering officer

(1) Subject to the provisions contained in this Part and in Sections 41, 43, 45, 69, 75, 77, 88, and 89, no document shall be registered under this Act, unless the persons executing such document or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under Sections 23, 24, 25, and 26:

Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that oil payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, it’ any, payable under Section 25, the document may be registered.

(2) Appearances under subsection (1) may be simultaneous or at different times.

The registering officer shall thereupon-

(a) Enquire whether or not such document was executed by the persons by whom it purports to have been executed;

(b) Satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and

(c) In the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear.

Section 35. Procedure on admission and denial of execution respectively

(1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he otherwise satisfied that they are the person they represent themselves to be, and if they all admit the execution of the document, or

(b) If in the case of any person appearing by a representative , assign or agent, such representative, assign or agent admits the execution, or

(c) If in the case of any person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in Section 58 to 61, inclusive.

(2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.

(3) (a) If any person by whom the document purports to be executed denies its execution, or

(b) If any such person appears to the registering officer to be a minor, an idiot or a lunatic, or

(c) If any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead:

Provided that, where such officer is a Registrar, he shall fallow the procedure prescribed in Part XII:

Provided further that the State Government may, by notification in the Official Gazette, declare that any Sub-Registrar named in the notification shall, in respect of documents sub-section and of Part XII.

Section 36. Procedure where appearance of executant or witness is desired

If any person–presenting any document for registration or claiming under any document, which is capable of being so presented, desires the appearance of any person whose presence or testimony is necessary for the registration of such document, the registering officer may, call upon such officer or Court as the State Government directs in this behalf to issue a summons requiring him to appear at the registration–office, either in person or by duly authorized agent, as in the summons may be mentioned, and at a time named therein.

Section 37. Officer or Court to issue and cause service of summons

The officer or Court, upon receipt of the peon’s fee payable in such cases, shall issue the summons accordingly, and cause it to be served upon the person whose appearance is so required.

Section 38. Persons exempt from appearance at registration-office

(1) (a) A person who by reason of bodily infirmity is unable without risk or serious inconvenience to appear at the registration-office, or

(b) A person in jail under civil or criminal process, or

(c) Person exempt by law from personal appearance in Court, and who would but for the provision next hereinafter contained be required to appear in person at the registration-office, shall not be required so to appear.

(2) In the case of every such person the registration-officer shall either himself go to the house of such person, or to the jail in which he is confined, and examine him or issue a commission for his examination.

Section 39. Law as to summonses commissions and witness

The law in force for the time being as to summonses, commissions and compelling the attendance of witnesses, and for their remuneration in suits before Civil Courts, shall, save as aforesaid and mutatis mutandis, apply to any summons or commission issued and any person summoned to appear under the provisions of this Act.

Section 40. Persons entitled to present wills and authorities to adopt

(1) The testator, or after his death any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub-Registrar for registration.

(2) The donor, or after his death the donee, of any authority to adopt, or the adoptive son, may present it to any Registrar or Sub-Registrar for registration.

Section 41. Registration of wills and authorities to adopt

(1) A will or an authority to adopt presented for registration by the testator or donor, may be registered in the same manner as any other document.

(2) A will or authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer is satisfied-

(a) That the will or authority was executed by the testator or donor, as the case may be;

(b) That the testator or donor is dead; and

(c) That the person presenting the will or authority is, under Section 40 entitled to present the same.

Section 42. Deposit of wills

Any testator may, either personally or by duly authorized agent deposit with any Registrar his will in a sealed cover superscribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document.

Section 43. Procedure on deposit of Wills

(1) On receiving such cover, the Registrar, if satisfied that the person presenting the same for deposit is the testator or his agent, shall transcribe in his Register-book No. 5 the superscription aforesaid, and shall note in the same book and on the said cover the, y ar, month, day and hour of such presentation and receipt, and the names of any persons who may testify to the identity of the testator or his agent, and any legible inscription which may be on the seal of the cover.

(2) The Registrar shall then place and retain the scaled cover in his fireproof box.

Section 44. Withdrawal of sealed cover deposited under Section 42

If the testator who has deposited such cover wishes to withdraw it, he may apply, either personally or by duly authorized agent, to the Registrar who holds it in deposit, and such Registrar, if satisfied that the applicant is actually the testator or his agent, shall deliver the cover accordingly.

Section 45. Proceedings on death of depositor

(1) If, on the death of a testator who has deposited a sealed cover under Section 42, application be made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, he shall, in the applicant’s presence, open the cover, and, at the application’s expense, cause the contents thereof to be copied into his Book No. 3.

(2) When such copy has been made, the Registrar shill re-deposit the original will.

Section 46. Saving of certain enactments and powers of Courts

(1) Nothing herein-before contained shall affect the provisions of Section 259 of the Indian Succession Act, 1865, or of Section 81 of the Probate and Administration Act, 1881, or the power of any Court be order to compel the production of any will.

(2) When any such order is made, the Registrar shall, unless the will has been already copied under Section 45, open the cover and cause the will to be copied into his Book No. 3 and make a note on such copy that the original has been removed into Court in pursuance of the order aforesaid.

Section 47. Time from which registered document operates

A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.

Section 48. Registered documents relating to property when to take effect against oral agreements

All non-testamentary documents duly registered under this Act, and relating to any property, whether movable or immovable, shall take effect against any oral agreement or declaration relating to such property, unless where the agreement or declaration has been accompanied or followed by delivery of possession and the same constitutes a valid transfer under any law for the time being in force:

Provided that a mortgage by deposit of title deeds as defined in Section 58 of the Transfer of Property Act, 1882, shall take effect against any mortgage-deed Subsequently executed and registered which relates to the same property.

Section 49. Effect of non-registration of documents required to be registered

No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall-

(a) Affect any immovable property comprised therein, or

(b) Confer any power to adopt, or

(c) Be received as evidence of any transaction affecting such property or conferring such power; unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter 11 of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1892, or as evidence of any collateral transaction not required to be effected by registered instrument.

Section 50. Certain registered documents relating to land to take effect against unregistered documents

(1) Every document of the kinds mentioned in clauses (a), (b), (c) and (d) of Section 17, sub-section (1) and clauses (a) and (b) of Section 18, shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not.

(2) Nothing in sub-section (1) applies to leases exempted under the provision to sub-section (1) of Section 17 or to any document mentioned in subsection (2) of the same section, or to any registered document which had not priority under the law in force at the commencement of this Act.

Explanation. -In cases where Act No. XVI of 1864 or the Indian Registration Act, 1866, was in force in the place and at the time in and at which such unregistered document was executed, “unregistered” means not registered according to such Act, and, where the document is executed after the first day of July, 1871, not registered under the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act.

Section 51. Register-books to be kept in the several offices

(1) The following books shall be kept in the several offices hereinafter named, namely: –
A-In all registration offices-

Book 1, “Register of non-testamentary documents relating to immovable property”;

Book 2, “Record of reasons for refusal to register”;

Book 3, “Register of wills and authorities to adopt”; and Book 4, “Miscellaneous Register;”

B-In the offices of Registrars-

Book 5, “Register of deposits of wills”-.

(2) In Book I shall be entered or filed all documents or memoranda registered under Sections 17, 18, and 89, which relate to immovable property, and are not wills.

(3) In Book 4 shall be entered all documents registered under clauses (d) and (f) of Section 18 which do not relate to immovable property.

(4) Nothing in this section shall be deemed to require more than one set of books where the office of the Registrar has been amalgamated with the office of a Sub-Registrar.

Section 52. Duties of registering officers when document presented

(1) (a) The day, hour and place of presentation, and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it;

(b) A receipt for such document shall be given by the registering officer to the person presenting the same; and

(c) Subject to the provisions contained in Section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission.

(2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector-General.

Section 53. Entries to be numbered consecutively

All entries in each book shall be numbered in a consecutive series, which shall commence and terminate with the year, a fresh series being commenced at the beginning of each year.

Section 54. Current indexes and entries therein

In every office in which any of the books hereinbefore mentioned are kept, there shall be prepared current indexes of the contents of such books; and every entry in such indexes shall be made, so far as practicable, immediately after the registering officer has copied, or filed a memorandum of, the document to which it relates.

Section 55. Indexes to be made by registering officers, and their contents

(1) Four such indexes shall be made in all registration offices, and shall be named, respectively, Index No. 1, Index No. II, and Index No. III and Index No. IV.

(2) Index No. I shall contain the names and additions of all persons executing and of all persons claiming under every document entered or memorandum filed in Book No. 1

(3) Index No. II shall contain such particulars mentioned in Section 21 relating to every such document and memorandum as the Inspector-General from time to time directs in that behalf.

(4) Index No. III shall contain the names and additions of all persons executing every will and authority entered in Book No. 3, and of the executors and persons respectively appointed thereunder, and after the death of the testator or the donor (but not before) the names and additions of all persons claiming under the same.

(5) Index No. IV shall contain the names and additions of all persons executing and of all persons claiming under every document entered in Book No. 4.

(6) Each Index shall contain such other particulars, and shall be prepared in such form, as the Inspector-General from time to time directs.

Section 56. Repealed by Act No. 15 of 1929

56. [Repealed by Act No. 15 of 1929]

Section 57. Registering officers to allow inspection of certain books and indexes, and to give certified copies of entries

(1) Subject to the previous payment of the fees payable in that behalf, the Books Nos.1 and 2 and the Indexes relating to Book No. I shall be at all times open to inspection by any person applying to inspect the same; and, subject to the provisions of Section 62, copies of entries in such books shall be given to all persons applying for such copies.

(2) Subject to the same provisions, copies of entries in Book No. 3 in the Index relating thereto shall be given to the persons executing the documents to which such entries relate, or to their agents, and after the death of the executants (but not before) to any person applying for such copies.

(3) Subject to the same provisions, copies of entries in Book No. 4 and in the Index relating thereto shall be given to any person executing or claiming under the documents to which such entries respectively refer, or to his agent or representative.

(4) The requisite search under this section for entries in Book No. 3 and 4 shall be made only by the registering officer.

(5) All copies given under this section shall be signed and scaled by the registering officer, and shall admissible for the purpose of proving the contents of the original documents.

Section 58. Particulars to be endorsed on documents admitted to registration

(1) On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under Section 89, there shall be endorsed from time to time the following particulars, namely: -

(a) The signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;

(b) The signature and addition of every person examined in reference to such document under any of the provisions of this Act; and

(c) Any payment of money or delivery of goods make in the presence of the registering officer in reference to the execution to the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

(2) If any person admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register it, but shall at the same time endorse a note of such refusal.

Section 59. Endorsements to be dated and signed by registering officer

The registering officer shall affix the date and his signature to all endorsements made under section 52 and 58, relating to the same document and made in his presence on the same day.

Section 60. Certificate of registration

(1) After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word registered,” together with the number and page of the book in which the document has been copied.

(2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duty registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned.

Section 61. Endorsements and certificate to be copied and document returned

(1) The endorsements and certificate referred to and mentioned in Sections 59 and 60 shall thereupon be copied into the margin of the Register-book, and the copy of the map or plan (if any) mentioned in Section 21 be filed in Book No. 1.

(2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in Section 52.

Section 62. Procedure on presenting document in language unknown to registering officer

(1) When a document is presented for registration under Section 19, the translation shall be transcribed in the register of documents of the nature of the original, and, together with the copy referred to in Section 19, shall be filed in the registration office.

(2) The endorsements and certificate respectively mentioned in Sections 59 and 60 shall be made on the original, and, for the purpose of making the copies and memoranda required by Sections 57, 64, 65 and 66, the translation shall be treated as it were the original.

Section 63. Power to administer oaths and record of substance of statements

(1) Every registering officer may at his discretion administer an oath to any person examined by him under the provisions of this Act.

(2) Every such officer may also at his discretion record a note of the substance of the statement made by each such person, and such statement shall be read over, or (if made in a language with which such person is not acquainted) interpreted to him in a language with which he is acquainted, and, if he admits the correctness of such note, it shall be signed by the registering officer.

(3) Every such note so signed shall be admissible for the purpose that the statements therein recorded were made by the persons and under the circumstances therein stated,

Section 64. Procedure where document relates to land in several sub-districts

Every Sub-Registrar on registering a non-testamentary document relating to immovable property not wholly situate in his own sub district shall make a memorandum thereof and of the endorsement and certificate (if any) thereon, and send the same to every other Sub-Registrar subordinate to the same Registrar as himself in whose sub district any part of such property is sit-date, and such Sub-Registrar shall file the memorandum in his Book No. 1.

Section 65. Procedure where document relates to land in several districts

(1) Every Sub-Registrar on registering a non-testamentary document relating to immovable property situate in more districts than one shall also forward a copy thereof and of the endorsement and certificate (if any) thereon, together with a copy of the map or plan (if any) mentioned in Section 21, to the Registrar of every district in which any part of such property is situate other than the district in which his own sub-district is situate.

(2) The Registrar on receiving the same shall file in his Book No. 1., the copy of the document and the copy of the map or plan (if any), and shall forward a memorandum of the document to each of the Sub-Registrars subordinate to him within whose sub district any part of such property is situate; and every Sub-Registrar receiving such memorandum shall file in his Book No. l.

Section 66. Procedure after registration of documents relating to land

(1) On registering any non-testamentary document relating to immovable property. the Registrar shall forward a memorandum of such document to each Sub-Registrar subordinate to himself in whose sub-district any part of the property is situate.

(2) The registered shall also forward a copy of such document together with a copy of the map or plan (if any) mentioned in Section 21, to every other Registrar in whose district any part of such property is situate.

(3) Such Registrar on receiving any such copy shall file it in his Book No. 1, and shall also send a memorandum of the copy to each of the Sub-Registrars subordinate to him within whose sub-district any part of the property is situate.

(4) Every Sub-Registrar receiving any memorandum under this section shall file it in his Book No. 1.

Section 67. Procedure after registration under Section 30 sub-section (2)

On any document being registered under Section 30, subsection (2), a copy of such document and of the endorsements and certificate thereon shall be forwarded to every Registrar within whose district any part of the property to which the instrument relates is situate, and the Registrar receiving such copy shall follow the procedure prescribed for him in Section 66, sub-section (1).

Section 68. Power of Registrar to superintend and control Sub-Registrars

(1) Every Sub-Registrar shall perform the duties of his office under the superintendence and control of the Registrar in whose district the office of such Sub-Registrar is situate.

(2) Every Registrar shall have authority to issue (whether on complaint or otherwise) any order consistent with this Act which he considers necessary in respect of any act or omission of any Sub-Registrar subordinate to him or in respect of the rectification of any error regarding the book or the office in which any document has been registered.

Section 69. Power of Inspector-General to superintend registration-offices and make rules

(1) The Inspector-General shall exercise a general superintendence over all the registration-offices in the territories under the State Government, and shall have power from time to time to make rules consistent with this Act-

(a) Providing for the safe custody of books, papers and documents;

(b) Declaring what languages shall be deemed to be commonly used in each district;

(c) Declaring what territorial divisions shall be recognized under Section 21;

(d) Regulating the amount of fines imposed under Section 25 and 34, respectively;

(e) Regulating the exercise of the discretion reposed in the registering officer by Section 63;

(f) Regulating the form in which registering officers are to make memoranda of documents;

(g) Regulating the authentication by Registrars and Sub-Registrars of the books kept in their respective offices under Section 51:

(gg) Regulating the manner in which the instruments referred to in subsection (2) of Section 88 may be presented for registration;

(h) Declaring the particulars to be contained in Indexes Nos. 1, 11, III and IV respectively;

(i) Declaring the holidays that shall be observed in the registration-offices; and

(j) Generally, regulating the proceedings of the Registrars and Sub-Registrar.

(2) The rules so made shall be submitted to the State Government for approval, and after they have been approved, they shall be published in the Official Gazette, Vince oil publication shall have effect as if enacted in this Act.

Section 70. Power of Inspector-General to remit fines

The Inspector-General may also, in the exercise of his discretion, remit wholly or in part the difference between any fine levied under Section 25 or Section 34, and the amount of the proper registration fee.

Section 71. Reasons for refusal to register to be recorded

(1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words “registration refused” on the document; and, on application made by any person executing of claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.

(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.

Section 72. Appeal to Registrar from orders of Sub-Registrar refusing registration on ground other than denial of execution

(1) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.

(2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-Registrar shall obey the same, and thereupon shall, so far follow the procedure prescribed in Sections 58, 59 and 60; and take effect as if the document had been registered when it was registration.

Section 73. Application to Registrar where Sub-Registrar refuses of denial execution

(1) When a Sub-Registrar has refused to the ground that any person by whom it purports to be executed, assign, denies its execution, any person claiming under such document, or his representative, assign or agent authorized as aforesaid, may, within thirty days after the making of the order of refusal, apply to the Registrar to whom such Sub-Registrar is subordinate in order to establish his right to have the document registered.

(2) Such application shall be in writing and shall be accompanied by a copy of the reasons recorded under Section 71, and the statements in the application shall be verified by the applicant in manner required by law for the verification of plaints.

Section 74. Procedure of Registrar on such application

In such case, and also where such denial as aforesaid is made before a Registrar in respect of a document presented for registration to him, the Registrar shall, as soon as conveniently may be, enquire. -

(a) Whether the document has been executed;

(b) Whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration.

Section 75. Order by Registrar to register and procedure thereon

(1) If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered.

(2) If the document is duly presented for registration within thirty days after the making of such order, the registering officer shall obey the same and thereupon shall, so far as may be practicable, follow the procedure prescribed in Sections 58, 59 and 60.

(3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration.

(4) The Registrar may, for the purpose of any enquiry under Section 74, summon and enforce the attendance of witness, and compel them to give evidence, as if he were a Civil Court, and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908.

Section 76. Order of refusal by Registrar

(1) Every Registrar refusing. -

(a) To register a document except on the ground that the property to which it relates is not situate within his district or that the document ought to be registered in the office of a Sub-Registrar, or

(b) To direct the registration of a document under Section 72 or Section 75, shall make an order of refusal and record the reasons for such order in his Book No.2, and, on application made by any person executing or claiming under the document, shall, without unnecessary delay, give him a copy of the reasons so recorded.

(2) No appeal lies form any order by a Registrar under this section or Section 72.

Section 77. Suit in case of order of refusal by Registrar

(1) Where the Registrar refuses to order the document to be registered, under Section 72 or Section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree.

(2) The provisions contained in sub-section (2) and (3) of Section 75 shall, mutatis mutandis, apply to all documents presented for registration in accordance with any such decree, and, notwithstanding anything contained in this Act, the documents shall be receivable in evidence in such suit.

Section 78. Fees to be fixed by State Government

The State Government shall prepare a table of fees payable. -

(a) For the registration of documents;

(b) For searching the registers;

(c) For making or granting copies of reasons, entries or documents, before, on or after registration;

And of extra or additional fees payable;

(d) For every registration under Section 30;

(e) For the issue of commissions;

(f) For filing translations;

(g) For attending at private residences;

(h) For the safe custody and return of documents; and

(i) For such other matters as appear to the State Government necessary to effect the purposes of this Act.

Section 79. Publication of fees

A table of the fees so payable shall be published in the Official Gazette, and a copy thereof in English and the vernacular language of the district shall be exposed to public view in every registration office.

Section 80. Fees payable on presentation

All fees for the registration of documents under this Act shall be payable on the presentation of such documents.

Section 81. Penalty for incorrectly endorsing, copying, translating or registering documents with intent to injure

Every registering officer appointed under this Act and every person employed in his office for the purpose of this Act, who, being charged with the endorsing, copying, translating or registering of any document presented or deposited under its provisions, endorses, copies, translates or registers such document in a manner which he knows or believes to be incorrect intending thereby to cause or knowing it to be likely that he may thereby cause, injury, as defined in the Indian Penal Code, to any person, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.

Section 82. Penalty for making false statement, delivering false copies or translations, false personation, and abatement. Whoever

(a) Intentionally makes any false statement, whether on oath or not, and whether it has been recorded or not, before any officer acting in execution of this Act, in any proceeding or enquiry under this Act; or

(b) Intentionally delivers to a registering officer, in any proceeding under Section 19 or Section 21, a false copy or translation of a document, or a false copy of a map or plan; or

(c) Falsely pesonates another, and in such assumed character presents any document, or makes any admission or statement, or causes any summons or commission to be issued, or does any other act in any proceeding or enquiry under this Act; or

(d) Abets anything made punishable by this Act;

Shall be punishable with imprisonment for a term, which may extend to seven years; or with fine, or with both.

Section 83. Registering officer may commence prosecutions

(1) A prosecution for any offence under this Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permission of the Inspector-General, the Registrar or the Sub-Registrar, in whose territories, district or sub district, as the case may be, the offence has been committed.

(2) Offences punishable under this Act shall be triable by any Court or officer exercising powers not less than those of a Magistrate of the second class.

Section 84. Registering officers to be deemed public servants

(1) Every registering officer appointed under this Act shall be deemed to be a public servant within the meaning of the Indian Penal Code.

(2) Every person shall be legally bound to furnish information to such registering officer when required by him to do so.

(3) In Section 228 of the Indian Penal Code, the words “Judicial proceeding” shall be deemed to include any proceeding under this Act.

Section 85. Destruction of unclaimed documents

Documents (other than wills) remaining unclaimed in any registration-office for a period exceeding two years may be destroyed.

Section 86. Registering officer not liable for thing bona fide done or refused in his official capacity

No registering officer shall be liable to any suit, claim or demand by reason of anything in good faith done or refused in his official capacity.

Section 87. Nothing so done invalidated by defect in appointment or procedure

Nothing done in good faith pursuant to this Act or any Act hereby repealed, by any registering officer, shall be deemed invalid merely by reason of any defect in his appointment or procedure.

Section 88. Registration of documents executed by Government officers or certain public functionaries

(1) Notwithstanding anything contained in this Act, it shall not he necessary for

(a) Any officer of Government, or

(b) Any Administrator General, Official Trustee or Official Assignee, or

(c) The Sheriff, Receiver or Registrar of a High Court, or

(d) The holder for the time being of such other public office as may be specified in a notification in the Official Gazette issued in that behalf by the State Government, to appear in person or by agent at any registration-office in any proceeding connected with the registration of any instrument executed by him or in his favour, in his official capacity, or to sign as provided in Section 58.

(2) Any instrument executed by or in favour of an officer of Government or any other person referred to in subsection (1) may be presented for registration in such manner as may be prescribe by rules made under Section 69.

(3) The registering officer to whom any instrument is presented for registration under this section may, if he things fit, refer to any Security to Government or to such officer of Government or other person referred to in subsection (1) for information respecting the same and, oil being satisfied of the execution thereof shall register the instrument.

Section 89. Copies of certain orders, certificates and instruments to be sent to registering officers and filed

(1) Every officer granting a loan under the Land Improvement Loans Act, 1883, shall send a copy of his order to the registering officer within the local limits of whose jurisdiction the whole or any part of the land to be improved or of the land to be granted as collateral security, is situate, and such registering officer shall file the copy in his Book No. 1.

(2) Every Court granting a certificate of sale of immovable property under the Code of Civil Procedure, 1908, shall send a copy of such certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such certificate is situate, and such officer shall file the copy in his Book No.1.

(3) Every officer granting a loan under the Agricultures Loans Act, 1884, shall send a copy of any instrument whereby immovable property is mortgaged for the purpose of securing the repayment of the loan, and, if any Such property is mortgaged for the sale purpose in the order granting the loan, a copy also of that order, to the registering officer within the local limits of whose jurisdiction the whole or any part of the property so mortgaged is situate, and such registering officer shall file the copy or copies, as the case may be, in his Book No. 1.

(4) Every Revenue-officer granting a certificate of sale to the purchaser of immovable property sold by public auction shall send a copy of the certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in the certificate is situate, and such officer shall file the copy in his Book No. 1.

Section 90. Exemption of certain documents executed by or in favour of Government

(1) Nothing contained in this Act or in the Indian Registration Act, 1877, or in the Indian Registration Act, 1871, or in any Act thereby repealed, shall be deemed to require, or to have at any time required, the registration of any of the following documents or maps, namely:

(a) Documents issued, received or attested by any officer engaged in making a settlement or revision or settlement of land-revenue, and which from part of the records of such settlement; or

(b) Documents and maps issued, received or authenticated by any officer engaged on behalf of Government in making or revising the survey of any land, and which form part of the record of such survey; or

(c) Documents which, under any law for the time being in force, are filed periodically in any revenue-office by Patwaris or other officers charged with the preparation of village records; or

(d) Sanads, inam title-deeds and other documents purporting to be or to evidence grants or assignments by Government of land or of any interest in land; or

(e) Notices given under Section 74 or Section 76 of the Bombay Land-Revenue Code, 1879, or relinquishment of occupancy by occupants, or of alienated land by holders of such land.

(2) All such documents and maps shall, for the purposes of sections 48 and 49, be deemed to have been and to be registered in accordance with the provisions of this Act.

Section 91. Inspection and copies of such documents

Subject to such rules and the previous payment of such fees as the State Government prescribes in this behalf, all documents and maps mentioned in Section 90, clauses (a), (b), (c) and (e), and all registers of the documents mentioned in clause (d), shall be open to the inspection of any person applying to inspect the same, and, subject as aforesaid, copies of such documents shall be given to all persons applying for such copies.

Section 92. Rep. by the Government of India (Adaption of Indian Laws) Order, 1937

92. [Rep. by the Government of India (Adaption of Indian Laws) Order, 1937.]

Section 93. Repeals

93. [Repeals.] Rep. by the Repealing Act, 1938 (1 of 1938),

Schedule

THE SCHEDULE

[Repeal of enactments.] Rep. by the Repealing Act 1938 (1 of 1938)]

Payment of Gratuity Act

November 30, 2014

Section 1. SHORT TITLE, EXTENT, APPLICATION AND COMMENCEMENT. 

(1) This Act may be called the Payment of Gratuity Act, 1972.

(2) It extends to the whole of India: Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir.

(3) It shall apply to -

(a) every factory, mine, oilfield, plantation, port and railway company;

(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;

(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.

(3A) A shop or establishment to which this Act has become applicable shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below ten.

(4) It shall come into force on such date as the Central Government may, by notification, appoint.

Section 2. DEFINITIONS. 

In this Act, unless the context otherwise requires, -

(a) “appropriate Government” means, -

(i) in relation to an establishment -

(a) belonging to, or under the control of, the Central Government,

(b) having branches in more than one State,

(c) of a factory belonging to, or under the control of, the Central Government,

(d) of a major port, mine, oilfield or railway company, the Central Government, (ii) in any other case, the State Government;

(b) “completed year of service” means continuous service for one year;

(c) “continuous service” means continuous service as defined in section 2A;

(d) “controlling authority” means an authority appointed by the appropriate Government under section 3;

(e) “employee” means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.

Explanation : (f) “employer” means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop -

(i) belonging to, or under the control of, the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned,

(ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the chief executive office of the local authority,

(iii) in any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person;

(g) “factory” has the meaning assigned to it in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);

(h) “family”, in relation to an employee, shall be deemed to consist of -

(i) in the case of a male employee, himself, his wife, his children, whether married or unmarried, his dependent parents and the dependent parents of his wife and the widow and children of his predeceased son, if any,

(ii) in the case of a female employee, herself, her husband, her children, whether married or unmarried, her dependent parents and the dependent parents of her husband and the widow and children of her predeceased son, if any :

Explanation : Where the personal law of an employee permits the adoption by him of a child, any child lawfully adopted by him shall be deemed to be included in his family, and where a child of an employee has been adopted by another person and such adoption is, under the personal law of the person making such adoption, lawful, such child shall be deemed to be excluded from the family of the employee;

(i) “major port” has the meaning assigned to it in clause (8) of section 3 of the Indian Ports Act, 1908 (15 of 1908);

(j) “mine” has the meaning assigned to it in clause (j) of sub-section (1) of section 2 of the Mines Act, 1952 (35 of 1952);

(k) “notification” means a notification published in the Official Gazette;

(l) “oilfield” has the meaning assigned to it in clause (e) of section 3 of the Oilfields (Regulation and Development) Act, 1948 (53 of 1948);

(m) “plantation” has the meaning assigned to it in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951);

(n) “port” has the meaning assigned to it in clause (4) of section 3 of the Indian Ports Act, 1908 (15 of 1908);

(o) “prescribed” means prescribed by rules made under this Act;

(p) “railway company” has the meaning assigned to it in clause (5) of section 3 of the Indian Railways Act, 1890 (9 of 1890);

(q) “retirement” means termination of the service of an employee otherwise than on superannuation;

(r) “superannuation”, in relation to an employee, means the attainment by the employee of such age as is fixed in the contract or conditions of service at the age on the attainment of which the employee shall vacate the employment;

(s) “wages” means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance.

Section 2 A. CONTINUOUS SERVICE. 

For the purposes of this Act, – (1) an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing order, rules or regulations governing the employees of the establishment), lay off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act.

(2) where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer -

(a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than – (i) one hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and (ii) two hundred and forty days, in any other case;

(b) for the said period of six months, if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than -

(i) ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and

(ii) one hundred and twenty days, in any other case;

Explanation : For the purpose of clause (2), the number of days on which an employee has actually worked under an employer shall include the days on which -

(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Order’s) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicable to the establishment;

(ii) he has been on leave with full wages, earned in the previous year;

(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and

(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.

(3) where an employee employed in a seasonal establishment, is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer for such period if he has actually worked for not less than seventy-five per cent of the number of days on which the establishment was in operation during such period.

Section 3. CONTROLLING AUTHORITY. 

The appropriate Government may, by notification, appoint any officer to be a controlling authority, who shall be responsible for the administration of this Act and different controlling authorities may be appointed for different areas.

Section 4. PAYMENT OF GRATUITY.

(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, – (a) on his superannuation, or

(b) on his retirement or resignation, or

(c) on his death or disablement due to accident or disease : Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement :

Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.

Explanation : For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement.

(2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days’ wages based on the rate of wages last drawn by the employee concerned : Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account :

Provided further that in the case of an employee who is employed in a seasonal establishment and who is not so employed throughout the year, the employer shall pay the gratuity at the rate of seven days’ wages for each season.

Explanation : In the case of a monthly rated employee, the fifteen days’ wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen.

(3) The amount of gratuity payable to an employee shall not exceed three lakhs and fifty thousand rupees.

(4) For the purpose of computing the gratuity payable to an employee who is employed, after his disablement, on reduced wages, his wages for the period preceding his disablement shall be taken to be the wages received by him during that period, and his wages for the period subsequent to his disablement shall be taken to be the wages as so reduced.

(5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.

(6) Notwithstanding anything contained in sub-section (1), -

(a) the gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused.

(b) the gratuity payable to an employee may be wholly or partially forfeited -

(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or

(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.

Section 4 A. COMPULSORY INSURANCE. 

(1) With effect from such date as may be notified by the appropriate Government in this behalf, every employer, other than an employer or an establishment belonging to, or under the control of, the Central Government or a State Government, shall, subject to the provisions of sub-section (2), obtain an insurance in the manner prescribed, for his liability for payment towards the gratuity under this Act, from the Life Insurance Corporation of India established under the Life Insurance Corporation of India Act, 1956 (31 of 1956) or any other prescribed insurer : Provided that different dates may be appointed for different establishments or class of establishments or for different areas.

(2) The appropriate Government may, subject to such conditions as may be prescribed, exempt every employer who had already established an approved gratuity fund in respect of his employees and who desires to continue such arrangement, and every employer employing five hundred or more persons who establishes an approved gratuity fund in the manner prescribed from the provisions of sub-section (1).

(3) For the purpose of effectively implementing the provisions of this section, every employer shall within such time as may be prescribed get his establishment registered with the controlling authority in the prescribed manner and no employer shall be registered under the provisions of this section unless he has taken an insurance referred to in sub-section (1) or has established an approved gratuity fund referred to in sub-section (2).

(4) The appropriate Government may, by notification, make rules to give effect to the provisions of this section and such rules may provide for the composition of the Board of Trustees of the approved gratuity fund and for the recovery by the controlling authority of the amount of the gratuity payable to an employee from the Life Insurance Corporation of India or any other insurer with whom an insurance has been taken under sub-section (1), or as the case may be, the Board of Trustees of the approved gratuity fund.

(5) Where an employer fails to make any payment by way of premium to the insurance referred to in sub-section (1) or by way of contribution to an approved gratuity fund referred to in sub-section (2), he shall be liable to pay the amount of gratuity due under this Act (including interest, if any, for delayed payments) forthwith to the controlling authority.

(6) Whoever contravenes the provisions of sub-section (5) shall be punishable with fine which may extend to ten thousand rupees and in the case of a continuing offence with a further fine which may extend to one thousand rupees for each day during which the offence continues.

Explanation : In this section “approved gratuity fund” shall have the same meaning as in clause (5) of section 2 of the Income-tax Act, 1961 (43 of 1961).

Section 5. POWER TO EXEMPT. 

(1) The appropriate Government may, by notification, and subject to such conditions as may be specified in the notification, exempt any establishment, factory, mine, oilfield, plantation, port, railway company or shop to which this Act applies from the operation of the provisions of this Act if, in the opinion of the appropriate Government, the employees in such establishment, factory, mine, oilfield, plantation, port, railway company or shop are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.

(2) The appropriate Government may, by notification and subject to such conditions as may be specified in the notification, exempt any employee or class of employees employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop to which this Act applies from the operation of the provisions of this Act, if, in the opinion of the appropriate Government, such employee or class of employees are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.

(3) A notification issued under sub-section (1) or sub-section (2) may be issued retrospectively a date not earlier than the date of commencement of this Act, but no such notification shall be issued so as to prejudicially affect the interests of any person.

Section 6. NOMINATION. 

(1) Each employee, who has completed one year of service, shall make, within such time, in such form and in such manner, as may be prescribed, nomination for the purpose of the second proviso to sub-section (1) of section 4.

(2) An employee may in his nomination, distribute the amount of gratuity payable to him, under this Act amongst more than one nominee.

(3) If an employee has a family at the time of making a nomination, the nomination shall be made in favour of one or more members of his family, and any nomination made by such employee in favour of a person who is not a member of his family, shall be void.

(4) If at the time of making a nomination the employee has no family, the nomination may be made in favour of any person or persons but if the employee subsequently acquires a family, such nomination shall forthwith become invalid and the employee shall make, within such time as may be prescribed, a fresh nomination in favour of one or more members of his family.

(5) A nomination may, subject to the provisions of sub-sections (3) and (4), be modified by an employee at any time, after giving to his employer a written notice in such form and in such manner as may be prescribed, of his intention to do so.

(6) If a nominee predeceases the employee, the interest of the nominee shall revert to the employee who shall make a fresh nomination, in the prescribed form, in respect of such interest.

(7) Every nomination, fresh nomination or alteration of nomination, as the case may be, shall be sent by the employee to his employer, who shall keep the same in his safe custody.

Section 7. DETERMINATION OF THE AMOUNT OF GRATUITY. 

(1) A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.

(2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined.

(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.

(3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify : Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.

(4) (a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity.

(b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute.

(c) The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer.

(d) The controlling authority shall pay the amount deposited, including the excess amount, if any, deposited by the employer, to the person entitled thereto.

(e) As soon as may be after a deposit is made under clause (a), the controlling authority shall pay the amount of the deposit -

(i) to the applicant where he is the employee; or

(ii) where the applicant is not the employee, to the nominee or, as the case may be, the guardian of such nominee or heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity.

(5) For the purpose of conducting an inquiry under sub-section (4), the controlling authority shall have the same powers as are vested in a court, while trying a suit, under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely :-

(a) enforcing the attendance of any person or examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) issuing commissions for the examination of witnesses.

(6) Any inquiry under this section shall be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code, 1860 (45 of 1860).

(7) Any person aggrieved by an order under sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf : Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days.

Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under sub-section (4), or deposits with the appellate authority such amount.

(8) The appropriate Government or the appellate authority, as the case may be, may, after giving the parties to the appeal a reasonable opportunity of being heard, confirm, modify or reverse the decision of the controlling authority.

Section 7 A. INSPECTORS. 

(1) The appropriate Government may, by notification, appoint as many Inspectors, as it deems fit, for the purposes of this Act.

(2) The appropriate Government may, by general or special order, define the area to which the authority of an Inspector so appointed shall extend and where two or more Inspectors are appointed for the same area, also provide, by such order, for the distribution or allocation of work to be performed by them under this Act.

(3) Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).

Section 7 B. POWERS OF INSPECTORS. 

(1) Subject to any rules made by the appropriate Government in this behalf, an Inspector may, for the purpose of ascertaining whether any of the provisions of this Act or the conditions, if any, of any exemption granted thereunder, have been complied with, exercise all or any of the following powers, namely :-

(a) require an employer to furnish such information as he may consider necessary;

(b) enter and inspect, at all reasonable hours, with such assistants (if any),

being persons in the service of the Government or local or any public authority, as he thinks fit, any premises of or place in any factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, for the purpose of examining any register, record or notice or other document required to be kept or exhibited under this Act or the rules made thereunder, or otherwise kept or exhibited in relation to the employment of any person or the payment of gratuity to the employees, and require the production thereof for inspection;

(c) examine with respect to any matter relevant to any of the purposes aforesaid, the employer or any person whom he finds in such premises or place and who, he has reasonable cause to believe, is an employee employed therein;

(d) make copies of, or take extracts from, any register, record, notice or other document, as he may consider relevant, and where he has reason to believe that any offence under this Act has been committed by an employer, search and seize with such assistance as he may think fit, such register, record, notice or other document as he may consider relevant in respect of that offence;

(e) exercise such other powers as may be prescribed.

(2) Any person required to produce any register, record, notice or other document or to give any information by an Inspector under sub-section (1) shall be deemed to be legally bound to do so within the meaning of sections 175 and 176 of the Indian Penal Code 1860 (45 of 1860).

(3) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall so far as may be, apply to any search or seizure under this section as they apply to any search or seizure made under the authority of a warrant issued under section 94 of that Code.

Section 8. RECOVERY OF GRATUITY. 

If the amount of gratuity payable under this Act is not paid by the employer, within the prescribed time, to the person entitled thereto, the controlling authority shall, on an application made to it in this behalf by the aggrieved person, issue a certificate for that amount to the Collector, who shall recover the same, together with compound interest thereon at such rate as the Central Government may, by notification, specify, from the date of expiry of the prescribed time, as arrears of land revenue and pay the same to the person entitled thereto :

Provided that the controlling authority shall, before issuing a certificate under this section, give the employer a reasonable opportunity of showing cause against the issue of such certificate :

Provided further that the amount of interest payable under this section shall, in no case exceed the amount of gratuity payable under this Act.

Section 9. PENALTIES. 

(1) Whoever, for the purpose of avoiding any payment to be made by himself under this Act or of enabling any other person to avoid such payment, knowingly makes or causes to be made any false statement or false representation shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.

(2) An employer who contravenes, or makes default in complying with, any of the provisions of this Act or any rule or order made thereunder shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year, or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees, or with both :

Provided that where the offence relates to non-payment of any gratuity payable under this Act, the employer shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years unless the court trying the offence, for reasons to be recorded by it in writing, is of opinion that a lesser term of imprisonment or the imposition of a fine would meet the ends of justice.

Section 10. EXEMPTION OF EMPLOYER FROM LIABILITY IN CERTAIN CASES. 

Where an employer is charged with an offence punishable under this Act, he shall be entitled, upon complaint duly made by him and on giving to the complainant not less than three clear days’ notice in writing of his intention to do so, to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved, the employer proves to the satisfaction of the court – (a) that he has used due diligence to enforce the execution of this Act, and

(b) that the said other person committed the offence in question without his knowledge, consent or connivance, that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the employer and the employer shall be discharged from any liability under this Act in respect of such offence :

Provided that in seeking to prove as aforesaid, the employer may be examined on oath and his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges as the actual offender and by the prosecutor :

Provided further that, if the person charged as the actual offender by the employer cannot be brought before the court at the time appointed for hearing the charge, the court shall adjourn the hearing from time to time for a period not exceeding three months and if by the end of the said period the person charged as the actual offender cannot still be brought before the court, the court shall proceed to hear the charge against the employer and shall, if the offence be proved, convict the employer.

Section 11. COGNIZANCE OF OFFENCES. 

(1) No court shall take cognizance of any offence punishable under this Act save on a complaint made by or under the authority of the appropriate Government : Provided that where the amount of gratuity has not been paid, or recovered, within six months from the expiry of the prescribed time, the appropriate Government shall authorise the controlling authority to make a complaint against the employer, whereupon the controlling authority shall, within fifteen days from the date of such authorisation, make such complaint to a Magistrate having jurisdiction to try the offence.

(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

Section 12. PROTECTION OF ACTION TAKEN IN GOOD FAITH. 

No suit or other legal proceeding shall lie against the controlling authority or any other person in respect of anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder.

Section 13. PROTECTION OF GRATUITY. 

No gratuity payable under this Act and no gratuity payable to an employee employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop exempted under section 5 shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal court.

Section 14. ACT TO OVERRIDE OTHER ENACTMENTS, ETC. 

The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.

Section 15. POWER TO MAKE RULES.

(1) The appropriate Government may, by notification make rules for the purpose of carrying out the provisions of this Act. (2) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days 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.

Bankers Book Evidence Act

November 30, 2014

Section 1. Title and extent.

Act title 18 of 1891 [1st October, 1891.]

An Act to amend the Law of Evidence with respect to Bankers’ Books. WHEREAS it is expedient to amend the Law of Evidence with respect to Bankers’ Books; It is hereby enacted as follows:

(1) This Act may be called THE BANKER’S BOOKS EVIDENCE ACT, 1891.

(2) It extends to 2the whole of India 3[except the State of Jammu and Kashmir.]4[***] 5[***]

———-

1. This Act has been extended to Pondicherry by Act 26 of 1968, sec. 3 and Sch.

2. Subs. by A.O. 1950, for “all the provinces of India ”.

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

4. The word “and” rep. by Act 10 of 1914.

5. Sub-section (3) rep. by Act 10 of 1914.

Section 2. Definitions.

In this Act, unless there is something repugnant in the subject or context,-

2[(1) “Company” means any company as defined in Section 3 of the Companies Act,1956, and includes a foreign company within the meaning of Section 591 of that Act;

(1A) “Corporation” means any body corporate established by any law for the time being in force in India and includes the Reserve Bank of India, the State Bank of India and any subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959.]

(2) “Bank” and “bankers”, mean-

3[(a) Any company or corporation carrying on the business of banking.]

(b) Any partnership of individual to whose books the provisions of this Act shall have been extended as hereinafter provided,

4[(c) Any post office savings bank or money order office;]

5(3) “Bankers’ books” include ledgers, day-books, cash-books, account-books and all other books used in the ordinary business of a bank;

6(4) “Legal proceeding” means any proceeding or inquiry in which evidence is or may be given, and includes an arbitration;

(5) “The Court” means the person or persons before whom a legal proceeding is held or taken;

(6) “Judge” means a Judge of a High Court;

(7) “Trail” means any hearing before the Court at which evidence is taken; and

⁷8 “Certified copy” means a copy of any entry in the books of a bank together with certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business, and that such book is still in the custody of the bank, such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title.

(b) consist of printouts of data stored in a floppy, disc, tape or any other electro-magnetic data storage device, a printout of such entry or a copy of such printout together with such statements certified in accordance with the provisions of section 2A.]

8[(c) a printout of any entry in the books of a bank stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism obtained by a mechanical or other process which in itself ensures the accuracy of such printout as a copy of such entry and such printout contains the certificate in accordance with the provisions of section 2A.]

———-

1. This Act has been extended to Pondicherry by Act 26 of 1968, sec. 3 and Sch.

2. Subs. by Act 56 of 1962, sec. 4, for clause (1) (w.e.f. 14-12-1962).

3. Subs. by Act 56 of 1962, sec. 4, for sub-clause (a) (w.e.f. 14-12-1962).

4. Added by Act 1 of 1893, sec. 2.

5. Subs. by Act 55 of 2002, sec. 11, for clause (3) (w.e.f. 6-2-2003). Earlier clause (3) was substituted by Act 21 of 2000, sec. 93 and Sch. III (w.e.f. 17-10-2000). Clause (3), before substitution by Act 55 of 2002, stood as under:

‘(3) “bankers’ books” include ledgers, day-books, cash-books, account-books and all other books used in the ordinary bussiness of a bank whether kept in the written form or as printouts of data stored in a floppy disc, tape or any other form of electro-magnetic data storage device;’.

6. Subs. by Act 1 of 1984, sec. 2(a)(i), for clause (4) (w.e.f. 15-2-1984).

7. Subs. by Act 21 of 2000, sec. 93 and Sch. III, for clause (8) (w.e.f. 17-10-2000). Earlier clause (8) was amended by Act 1 of 1984, sec. 2(a)(ii) (w.e.f. 15-2-1984).

8. Ins. by Act 55 of 2002, sec. 11 (w.e.f. 6-2-2003).

Section 2A. Conditions in the printout.

1[2A. Conditions in the printout.—A printout of entry or a copy of printout referred to in sub-section (8) of section 2 shall be accompanied by the following, namely:—

(a) a certificate to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager; and

(b) a certificate by a person in-charge of computer system containing a brief description of the computer system and the particulars of—

(A) the safeguards adopted by the system to ensure that data is entered or any other operation performed only by authorised persons;

(B) the safeguards adopted to prevent and detect unauthorised change of data;

(C) the safeguards available to retrieve data that is lost due to systemic failure or any other reasons;

(D) the manner in which data is transferred from the system to removable media like floppies, discs, tapes or other electro-magnetic data storage devices;

(E) the mode of verification in order to ensure that data has been accurately transferred to such removable media;

(F) the mode of identification of such data storage devices;

(G) the arrangements for the storage and custody of such storage devices;

(H) the safeguards to prevent and detect any tampering with the system; and

(I) any other factor which will vouch for the integrity and accuracy of the system.

(c) a further certificate from the person in-charge of the computer system to the effect that to the best of his knowledge and belief, such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question represents correctly, or is appropriately derived from, the relevant data.]

1. Ins. by Act 21 of 2000, sec. 93 and Sch. III (w.e.f. 17-10-2000).

Section 3. Powers to extend provisions of Act.

The State Government may from time to time, by notification in the Official Gazette, extend the provisions of this Act to the books of any partnership or individual carrying on business of bankers within the territories under its administration, and keeping a set of not less than three ordinary account-books namely, a cash-book, a day-book or journal, an a ledger, and may in like manner rescind any such notification.

Section 4. Mode of proof of entries in Bankers’ Books.

Subject to the provisions of this Act, a certified copy of any entry in a Banker’s book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise.

Section 5. Case in which officer of bank not comparable to produce books.

No officer of a bank shall in any legal proceeding to which the bank is not a party be comparable to produce any baker’s book the contents of which can be proved under this Act, or to appear as a witness to prove the matters, transactions and accounts therein recorded, unless by order of the Court or a Judge made for special cause.

Section 6. Inspection of Books by order of Court or Judge.

(1) On the application of any party to a legal proceeding the Court or a Judge may order that such party be at liberty to inspect and take copies of any entries in a Banker’s Book for any of the purposes of such proceeding, or may order the bank to prepare and produce, within a time to be specified in the order, certified copies of all such entries, accompanied by a further certificate that no other entries are to be found in the books of the Bank relevant to the matters in issue in such proceeding, and such further certificate shall be dated and subscribed in manner herein before directed in reference to certified copies.

(2) An Order under this or the preceding Section may be made either with or without summoning the Bank and shall be served on the Bank three clear days (exclusive of Bank holidays) before the same is to be obeyed, unless the Court or Judge shall otherwise direct.

(3) The Bank may at any time before the time limited for obedience to any such order as aforesaid either offer to produce their books at the trial or give notice of their intention to show cause against such Order, and thereupon the same shall not be enforced without further order.

Section 7. Costs.

(1) The costs of any application to the Court or a Judge under or for the purposes of this Act and the costs of anything done or to be done under an Order of the Court or a Judge made under or for the purposes of this Act shall be in the discretion of the Court or Judge, who may further Order such costs or any part thereof to be paid to any party by the Bank if they have been incurred in consequence of any fault or improper delay on the part of the Bank.

(2) Any Order made under this Section for the payment of costs to or by a Bank may be enforced as if the Bank were a party to the proceeding.

(3) Any Order under this Section awarding costs may, on application to any Court of Civil Judicature designated in the Order, be executed by such Court as if the Order were a decree for money passed by itself:

Provided that nothing in this Sub-Section shall be construed to derogate from any power which the Court or Judge making the Order may poss for the enforcement of its or his directions with respect to the payment of costs.

Section 8. Order of Court to be construed to be order made by specified officer.

2[8. Order of Court to be construed to be order made by specified officer. —In the application of sections 5, 6 and 7 to any investigation or inquiry referred to in sub-clause (iii) of clause (4) of section 2, the order of a Court or a Judge referred to in the said sections shall be construed as referring to an order made by an officer of a rank not lower than the rank of a Superintendent of Police as may be specified in this behalf by the appropriate Government.

Explanation .—In this section, “appropriate Government” means the Government by which the police officer or any other person conducting the investigation or inquiry is employed.]

———————————-

1. This Act has been extended to Pondicherry by Act 26 of 1968, sec. 3 and Sch.

2. Ins. by Act 1 of 1984, sec. 2(b) (w.e.f. 15-2-1984).

Employees State Insurance Act

November 30, 2014

Section 1. Short title, extent, commencement and application.

(1) This act may be called the Employees’ State Insurance Act, 1948.

(2) It extends to the whole of India.¹[***]

(3) It shall come into force on such date or dates 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 ²for different States or for different parts thereof.

(4) It shall apply, in the first instance, to all factories (including factories belonging to the Government other than seasonal factories :

³Provided that nothing contained in this sub-section shall apply to a factory or establishment belonging to or under the control of the Government whose employees are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act.

(5) The appropriate Government may, in consultation with the Corporation and ⁴where the appropriate Government is a State Government, with the approval of the Central Government, after giving six months’ notice of its intention of so doing by notification in the Official Gazette, extend the provision of this Act or any of them, to any other establishment or class of establishments, industrial, commercial, agriculture or otherwise :

⁵Provided that where the provisions of this Act have been brought into force in any part of a State, the said provisions shall stand extended to any such establishment or class of establishments within that part if the provisions have already been extended to similar establishment or class of establishments in another part of that State.

⁶ (6) A factory or an establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below the limit specified by or under this Act or the manufacturing process therein ceases to be carried on with the aid of power.

—————

1. The words “except the State of Jammu and Kashmir” which were subs. for “except Part B States” by Act 53 of 1951, sec. 2, have been omitted by Act 51 of 1970, sec. 2 and Sch. (w.e.f. 1-9-1971).

2. Subs. by Act 53 of 1951, sec. 2, for “for different States” (w.e.f. 6-10-1951).

3. Ins. by Act 29 of 1989, sec. 2(i) (w.e.f. 20-10-1989).

4. Subs. by Act 53 of 1951, sec. 2, for “with the approval of the Central Government” (w.e.f. 6-10-1951).

5. Ins. by Act 29 of 1989, sec. 2(ii) (w.e.f. 16-5-1990).

6. Ins. by Act 29 of 1989, sec. 2(iii) (w.e.f. 20-10-1989).

Section 2. Definitions.

In this Act, unless there is anything repugnant in the subject or context, – (1) “appropriate Government” means, in respect of establishment under the control of the Central Government or ¹a railway administration or a major port or a mine oilfield, the Central Government, and in all other cases, the State Government;

²[***]

(3) “confinement” means labour resulting in the issue of a living child, or labour after twenty six weeks of pregnancy resulting in the issue of a child whether alive or dead;

(4) “contribution” means the sum of money payable to the Corporation by the principal employer in respect of an employee and includes any amount payable by or on behalf of the employee in accordance with the provisions of this Act;

³[***]

⁴(6) “Corporation” means the Employees State Insurance Corporation set up under this Act;

(6A) “dependant” means any of the following relatives of a deceased insured person, namely :- (i) a widow, a minor legitimate or adopted son, an unmarried legitimate or adopted ⁵daughter;

⁶(ia) a widowed mother;

(ii) if wholly dependent on the earnings of the insured person at the time of his death, a legitimate or adopted son or daughter who has attained the age of eighteen years and is infirm;

(iii) if wholly or in part dependent on the earnings of the insured person at the time of his death, –

(a) a parent other than a widowed mother,

(b) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or adopted or illegitimate if married and a minor or if widowed and a minor,

(c) a minor brother or an unmarried sister or a widowed sister if a minor,

(d) a widowed daughter-in-law,

(e) a minor child of a pre-deceased son,

(f) a minor child of a pre-deceased daughter where no parent of the child is alive, or

(g) a paternal grand-parent if no parent of the insured person is alive;

(7) “duly appointed” means appointed in accordance with the provisions of this Act or with the rules or regulations made thereunder;

⁷(8) “employment injury” means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India;

(9) “employee” means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and –

(i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or

(ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or

(iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service; ⁸and includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment ⁹or any person engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), or under the standing orders of the establishment; but does not include –

(a) any member of ¹⁰the Indian naval, military or air forces; or

¹¹(b) any person so employed whose wages (excluding remuneration for overtime work) exceed ¹²such wages as may be prescribed by the Central Government :

Provided that an employee whose wages (excluding) remuneration for overtime work) exceed ¹²such wages as may be prescribed by the Central Government at any time after (and not before) the beginning of the contribution period, shall continue to be an employee until the end of that period;

(10) “exempted employee” means an employee who is not liable under this Act to pay the employees’ contribution.

¹³(11) “family” means all or any of the following relatives of an insured person, namely :- (i) a spouse;

(ii) a minor legitimate or adopted child dependent upon the insured person;

(iii) a child who is wholly dependent on the earnings of the insured person and who is (a) receiving education, till he or she attains the age of twenty-one years, (b) an unmarried daughter;

(iv) a child who is infirm by reason of any physical or mental abnormality or injury and is wholly dependent on the earnings of the insured person, so long as the infirmity continues;

(v) dependent parents;

(12) “factory” means any premises including the precincts thereof – (a) whereon ten or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or

(b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952) or a railway running shed;

(13) “immediate employer” in relation to employees employed by or through him, means a person who has undertaken the execution, on the premises of factory or an establishment to which this Act applies or under the supervision of the principal employer or his agent, of the whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of, any such factory or establishment, and includes a person by whom the services of an employee who has entered into a contract of service with him are temporarily lent or let on hire to the principal employer ¹⁴and includes a contractor;

¹⁵(13A) “insurable employment” means an employment in a factory or establishment to which this Act applies;

(14) “insured person” means a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is, by reason thereof, entitled to any of the benefits provided by this Act;

¹⁵(14A) “managing agent” means any person appointed or acting as the representative of another person for the purpose of carrying on such other person’s trade or business, but does not include an individual manager subordinate to an employer;

¹⁶(14AA) “manufacturing process” shall have the meaning assigned to it in the Factories Act, 1948 (63 of 1948);

(14B) “mis-carriage” means expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy but does not include any mis-carriage, the causing of which is punishable under the Indian Penal Code (45 of 1860);

(15) “occupier” of the factory shall have the meaning assigned to it in the Factories Act, ¹⁷1948 (63 of 1948);

¹⁵(15A) “permanent partial disablement” means such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement : Provided that every injury specified in Part II of the Second Schedule shall be deemed to result in permanent partial disablement.

(15B) “permanent total disablement” means such disablement of a permanent nature as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement :

Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of the Second Schedule or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more.

¹⁸(15C) “power” shall have the meaning assigned to it in the Factories Act, 1948 (63 of 1948);

(16) “prescribed” means prescribed by rules made under this Act;

(17) “principal employer” means – (i) in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under ¹⁹[the Factories Act, 1948 (63 of 1948)], the person so named;

(ii) in any establishment under the control of any department of any Government in India, the authority appointed by such Government in this behalf or where no authority is so appointed, the head of the department;

(iii) in any other establishment, any person responsible for the supervision and control of the establishment;

(18) “regulation” means a regulation made by the Corporation;

(19) “Schedule” means a Schedule to this Act;

²⁰(19A) “seasonal factory” means a factory which is exclusively engaged in one or more of the following manufacturing processes, namely, cotton ginning, cotton or jute pressing, decortications of ground-nuts, the manufacture of coffee, indigo, lac, rubber, sugar (including gur) or tea or any manufacturing process which is incidental to or connected with any of the aforesaid processes and includes a factory which is engaged for a period not exceeding seven months in a year –

(a) in any process of blending, packing or repacking of tea or coffee; or

(b) in such other manufacturing process as the Central Government may, by notification in the Official Gazette, specify;

(20) “sickness” means a condition which requires medical treatment and attendance and necessitates abstention from work on medical grounds;

(21) “temporary disablement” means a condition resulting from an employment injury which requires medical treatment and renders an employee, as a result of such injury, temporarily incapable of ²¹[doing the work which he was doing prior to or at the time of the injury];

(22) “wages” means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes ²²[any payment to an employee in respect of any period of authorised leave, lock-out, strike which is not illegal or lay-off and] other additional remunera­tion, if any, 23[paid at intervals not exceeding two months], but does not include—

(b) any travelling allowance or the value of any traveling concession;

(c) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or

(d) any gratuity payable on discharge.

²⁴(23) “wage period” in relation to an employee means the period in respect of which wages are ordinarily payable to him whether in terms of the contract of employment, express or implied or otherwise;

²⁵(24) all other words and expressions used but not defined in this Act and defined in the Industrial Disputes Act, 1947 (14 of 1947), shall have the meanings respectively assigned to them in that Act.

—————

1. Subs. by the A.O. 1950, for “a federal railway”.

2. Clause (2) omitted by Act 29 of 1989, sec. 3(i) (w.e.f. 1-2-1991).

3. Clause (5) omitted by Act 29 of 1989, sec. 3(ii) (w.e.f. 1-2-1991).

4. Ins. by Act 44 of 1966, sec. 2 (w.e.f. 28-1-1968).

5. Subs. by Act 29 of 1989, sec. 3(iii), for “daughter or a widowed mother, and” (w.e.f. 20-10-1989).

6. Ins. by Act 29 of 1989, sec. 3(iii) (w.e.f. 20-10-1989).

7. Subs. by Act 44 of 1966, sec. 2, for the original clause (w.e.f. 28-1-1968).

8. Subs. by Act 44 of 1966, sec. 2, for “but does not include” (w.e.f. 28-1-1968).

9. Subs. by Act 29 of 1989, sec. 3(iv), for “but does not include” (w.e.f. 20-10-1989).

10. Subs. by the A.O. 1950, for “His Majesty’s”.

11. Subs. by Act 44 of 1966, sec. 2, for the original sub-clause (w.e.f. 28-1-1968).

12. Subs. by Act 29 of 1989, sec. 3(iv), for “one thousand and six hundred rupees a month” (w.e.f. 12-1991).

13. Subs. by Act 29 of 1989, sec. 3(v), for clauses (11) and (12) (w.e.f. 20-10-1989).

14. Added by Act 29 of 1989 sec. 3(vi) (w.e.f. 20-10-1989).

15. Ins. by Act 44 of 1966, sec. 2 (w.e.f. 28-1-1968).

16. Ins. by Act 29 of 1989, sec. 3(vii) (w.e.f. 20-10-1989).

17. Subs. by Act 53 of 1951, sec. 3, for “1934” (w.e.f. 6-10-1951).

18. Ins. by Act 29 of 1989, sec. 3(ix) (w.e.f. 20-10-1989).

19. Subs. by Act 53 of 1951, sec. 3, for “clause (e) of sub-section (1) of section 9 of the Factories Act, 1934” (w.e.f. 6-10-1951).

20. Ins. by Act 29 of 1989, sec. 3(ix) (w.e.f. 20-10-1989).

21. Subs. by Act 44 of 1966, sec. 2, for “work” (w.e.f. 28-1-1968).

22. Ins. by Act 44 of 1966, sec. 2 (w.e.f. 28-1-1968).

23. Subs. by Act 53 of 1951, sec. 3, for “paid at regular intervals after the last day of the wage period” (w.e.f. 6-10-1951).

24. Subs. by Act 45 of 1984, sec. 2, for clause (23) (w.e.f. 27-1-1985).

25. Subs. by Act 44 of 1966, sec. 2, for the original clause (w.e.f. 28-1-1968).

Section 2A. Registration of factories and establishments.

¹REGISTRATION OF FACTORIES AND ESTABLISHMENTS. Every factory or establishment to which this Act applies shall be registered within such time and in such manner as may be specified in the regulations made in this behalf.

—————

1. Ins. by Act 44 of 1966, sec. 3 (w.e.f. 28-1-1968).

Section 3. Establishment of employees’ state insurance corporation.

(1) With effect from such date^* as the Central Government may, by notification in the Official Gazette, appoint in this behalf, there shall be established for the administration of the scheme of Employees’ State Insurance in accordance with the provisions of this Act a Corporation to be known as the Employees’ State Insurance Corporation.

(2) The Corporation shall be a body corporate by the name of Employees’ State Insurance Corporation having perpetual succession and a common seal and shall by the said name sue and be sued.

—————

*  1st October, 1948, vide Gazette of India, 1948, Extra., p. 1441.

Section 4. Constitution of corporation.

The Corporation shall consist of the following members, namely :

¹(a) a Chairman to be ²appointed by the Central Government;

(b) a Vice-Chairman to be appointed by the Central Government;

(c) not more than five persons to be appointed by the Central Government.³[***]

(d) one person each representing each of the ⁴States in which this Act is in force to be appointed by the State Government concerned;

(e) one person to be ²appointed by the Central Government to represent the ⁵Union territories;

(f)⁶ persons representing employers to be appointed by the Central Government in consultation with such organisations of employers as may be recognised for the purpose by the Central Government;

(g)⁶ ten persons representing employees to be appointed by the Central Government in consultation with such organisations of employees as may be recognised for the purpose by the Central Government;

(h) two persons representing the medical profession to be ²appointed by the Central Government in consultation with such organisations of medical practitioners as may be recognised for the purpose by the Central ⁷Government;

⁸(i) three members of Parliament of whom two shall be members of the House of the People (Lok Sabha) and one shall be a member of the Council of States (Rajya Sabha) elected respectively by the members of the House of the people and the members of the Council of States; and

(j) the Director General of the Corporation, ex officio.

—————

1. Subs. by Act 44 of 1966, sec. 4, for the original clauses (a) and (b) (w.e.f. 17-6-1967).

2. Subs. by Act 29 of 1989, sec. 4, for “nominated” and “nomina­tion” (w.e.f. 20-10-1989).

3. The words “of whom at least three shall be officials of the Central Government” omitted by Act 44 of 1966, sec. 4 (w.e.f. 17-6-1967).

4. Subs. by A.O. (No. 3) 1956, for “Part A States and B States”.

5. Subs. by the A.O. (No. 3) 1956, for “Part C States”.

6. Subs. by Act 29 of 1989, sec. 4, for “five” (w.e.f. 20-10-1989).

7. The word “and” omitted by Act 44 of 1966, sec. 4 (w.e.f. 17-6-1967).

8. Subs. by Act 44 of 1966, sec. 4, for clause (i) (w.e.f. 17-6-1967).

Section 5. Term of office of members of the corporation.

(1) Save as otherwise expressly provided in this Act, the term of office of members of the Corporation, other than ¹the members referred to in clauses (a), (b), (c), (d) and (e) of section 4 and the ex officio member, shall be four years commencing from the date on which their ²appointment or election is notified :

Provided that a member of the corporation shall, notwithstanding the expiry of the said period of four years, continue to hold office until the ²appointment or election of his successor is notified.

(2) The members of the Corporation referred to in clauses ³(a), (b), (c), (d) and (e) of section 4 shall hold office during the pleasure of the Government ³appointing them.

—————

1. Subs. by Act 44 of 1966, sec. 5, for certain words (w.e.f. 17-6-1967).

2. Subs. by Act 29 of 1989, sec. 4, for “nominating”, “re-nomination” and “nominated” (w.e.f. 20-10-1989).

3. Subs. by Act 44 of 1966, sec. 5, for “(c), (d) and (e)” (w.e.f. 17-6-1967).

Section 6. Eligibility for re-nomination or re-election.

An outgoing member of the Corporation, the Standing Committee, or the Medical Benefit Council shall be eligible for ¹reappointment or re-election as the cases may be.

—————

1. Subs. by Act 29 of 1989, sec. 4, for “nominating”, “re-nomination” and “nominated” (w.e.f. 20-10-1989).

Section 7. Authentication of orders, decisions, etc.

All orders and decisions of the Corporation shall be authenticated by the signature of the Director General of the Corporation and all other instruments issued by the Corporation shall be authenticated by the signature of the Director General or such other officer of the Corporation as may be authorised by him.

—————

1. Subs. by Act 44 of 1966, sec. 6, for section 7 (w.e.f. 17-6-1967).

Section 8. Constitution of standing committee.

A Standing Committee of the Corporation shall be constituted from among its members, consisting of –

(a) a Chairman, ¹[appointed] by the Central Government;

(b) three members of the Corporation, ¹[appointed] by the Central Government];

²[(bb) three members of the Corporation representing such three State Governments thereon as the Central Government may, by notification in the Official Gazette, specify from time to time;]

(c) ³[eight] members elected by the Corporation as follows:—

⁴[***]

(ii) ⁵[three] members from among the members of the corporation representing employers;

(iii) ⁵[three] members from among the members of the Corporation representing employees;

(iv) one member from among the members of the Corporation repre­senting the medical profession; and

(v) one member from among the members of the Corporation elected by ⁶[Parliament];

⁷[(d) the Director General of the Corporation, ex officio].

—————

1. Subs. by Act 29 of 1989, sec. 4, for “nominating”, “re-nomination” and “nominated” (w.e.f. 20-10-1989).

2. Ins. by Act 53 of 1951, sec. 5 (w.e.f. 6-10-1951).

3. Subs. by Act 44 of 1966, sec. 7, for “six” (w.e.f. 17-6-1967).

4. Sub-clause (i) omitted by Act 53 of 1951, sec. 5 (w.e.f. 6-10-1951).

5. Subs. by Act 44 of 1966, sec. 7, for “two” (w.e.f. 17-6-1967).

6. Subs. by the A.O. 1950, for “the Central Legislature”.

7. Ins. by Act 44 of 1966, sec. 7 (w.e.f. 17-6-1967).

Section 9. Term of office of members of standing committee.

(1) Save as otherwise expressly provided in this Act, the term of office of a member of the Standing Committee, other than a member referred to in clause (a) or ¹Clause (b) or clause (bb) of section 8, shall be two years from the date on which his election is notified :

Provided that a member of the Standing Committee, shall, notwithstanding the expiry of the said period of two years, continue to hold office until the election of his successor is notified :

Provided further that a member of the Standing Committee shall cease to hold office when he ceases to be a member of the Corporation.

(2) A member of the Standing Committee referred to in clause (a) or clause (b) or clause (bb) of section 8 shall hold office during the pleasure of the Central Government.

—————

1. Subs. by Act 53 of 1951, sec. 6, for “clause (b)” (w.e.f. 6-10-1951).

Section 10. Medical benefit council.

(1) The Central Government shall constitute a Medical Benefit Council consisting of – (a) the Director General, Health Services, ex officio, as Chairman;

(b) a Deputy Director-General, Health Services, to be appointed by the Central Government;

(c) the Medical Commissioner of the Corporation, ex officio;

(d)  one member each representing each of the ²[³[States (other than Union territories)] in which this Act is in force] to be ¹[appointed] by the State Government concerned;

(e) three members representing employers to be appointed by the Central Government in consultation with such organisations of employers as may be recognised for the purpose by the Central Government;

(f) three members representing employees to be appointed by the Central Government in consultation with such organisations of employees as may be recognised for the purpose by the Central Government; and

(g) three members, of whom not less than one shall be a woman, representing the medical profession, to be appointed by the Central Government in consultation with such organisations of medical practitioners as may be recognised for the purpose by the Central Government.

(2) Save as otherwise expressly provided in this Act, the term of office of a member of the Medical Benefit Council, other than a member referred to in any of the clause (a) to (d) of sub-section (1), shall be four years from the date on which his appointment is notified :

⁵[Provided that a member of the Medical Benefit Council, shall, notwithstanding the expiry of the said period of four years continue to hold office until the ⁴[appointment] of his successor is notified].

(3) A member of the Medical Benefit Council referred to in clauses (b) and (d) of sub-section (1) shall hold office during the pleasure of the Government appointing him.

—————

1. Subs. by Act 29 of 1989, sec. 4 for “nominated”, “nominations” and “nominating” (w.e.f. 20-10-1989).

2. Subs. by Act 53 of 1951, sec. 7, for “Part A States” (w.e.f. 6-10-1951).

3. Subs. by the A.O. (No. 3) 1956, for “Part A States or Part B States”.

4. Subs. by Act 29 of 1989, sec. 4, for “nominated”, “nomination” and “nominating” (w.e.f. 20-10-1989).

5. Added by Act 44 of 1966, sec. 8 (w.e.f. 17-6-1967).

Section 11. Resignation of membership.

A member of the Corporation, the Standing Committee or the Medical Benefit Council may resign his office by notice in writing to the Central Government and his seat shall fall vacant on the acceptance of the resignation by that Government.

Section 12. Cessation of membership.

¹(1) A member of the Corporation, the Standing Committee or the Medical Benefit Council shall cease to be a member of that body if he fails to attend three consecutive meetings thereof :

Provided that the Corporation, the Standing Committee or the Medical Benefit Council, as the case may be, may, subject to rules made by the Central Government in this behalf, restore him to membership.

²(2) Where in the opinion of the Central Government any person ³appointed or elected to represent employers, employees or the medical profession on the Corporation, the Standing Committee or the Medical Benefit Council, as the case may be, has ceased to represent such employers, employees or the medical profession, the Central Government may, by notification in the Official Gazette, declare that with effect from such date as may be specified therein such person shall cease to be a member of the Corporation, the Standing Committee or the Medical Benefit Council, as the case may be.

⁴(3) A person referred to in clause (i) of section 4 shall cease to be a member of the Corporation, when he ceases to be a member of Parliament.

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1. Section 12 re-numbered as sub-section (1) thereof by Act 53 of 1951, sec. 8 (w.e.f. 6-10-1951).

2. Ins. by Act 53 of 1951, sec. 8 (w.e.f. 6-10-1951).

3. Subs. by Act 29 of 1989, sec. 4, for “nominated”, “nomination” and “nominating” (w.e.f. 20-10-1989).

4. Ins. by Act 44 of 1966, sec. 9 (w.e.f. 17-6-1967).

Section 13. Disqualification.

A person shall be disqualified for being chosen as or for being a member of the Corporation, the Standing Committee or the Medical Benefit Council –

(a) if he is declared to be of unsound mind by a competent Court; or

(b) if he is an undercharged insolvent; or

(c) if he has directly or indirectly by himself or by his partner any interest in a subsisting contract with, or any work being done for, the Corporation except as a medical practitioner or as a shareholder (not being a Director) of a company; or

(d) if before or after the commencement of this Act, he has been convicted of an offence involving moral turpitude.

Section 14. Filling of vacancies.

(1) Vacancies in the office of ¹appointed or elected members of the Corporation, the Standing Committee and the Medical Benefit Council shall be filled by appointment or election, as the case may be.

(2) A member of the Corporation, the Standing Committee or the Medical Benefit Council appointed or elected to fill a casual vacancy shall hold office only so long as the member in whose place he is ²appointed or elected would have been entitled to hold office if the vacancy had not occurred.

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1. Subs. by Act 29 of 1989, sec. 4, for “nominated”, “nomination” and “nominating” (w.e.f. 20-10-1989).

2. Subs. by Act 29 of 1989, sec. 4, for “nominated” and “nomina­tion” (w.e.f. 20-10-1989).

Section 15. Fees and allowances.

Members of the Corporation, the Standing Committee and the Medical Benefit Council shall receive such fees and allowances as may from time to time be prescribed by the Central Government.

Section 16. Principal officers.

(1) The Central Government may, in consultation with the Corporation, appoint a Director General and a Financial Commissioner.

(2) The Director General shall be the Chief Executive Officer of the Corporation.

(3)² The Director General and the Financial Commissioner shall be whole time officers of the Corporation and shall not undertake any work unconnected with their office without the sanction of the Central Government ³and of the Corporation.

(4) ²The Director General or the Financial Commissioner shall hold office for such period, not exceeding five years, as may be specified in the order appointing him. An outgoing Director General or the Financial Commissioner shall be eligible for reappointment if he is otherwise qualified.

(5) ²The Director General or the Financial Commissioner shall receive such salary and allowances as may be prescribed by the Central Government.

(6) A person shall be disqualified from being appointed as or for being the Director General or the Financial Commissioner if he is subject to any of the disqualification specified in section 13.

(7) The Central Government may at any time remove the ⁴Director General or the Financial Commissioner from office and shall do so if such removal is recommended by a resolution of the Corporation passed at a special meeting called for the purpose and supported by the votes of not less than two-thirds of the total strength of the Corporation.

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1. Subs. by Act 29 of 1989, sec. 6, for sub-section (1) (w.e.f. 20-10-1989).

2. Subs. by Act 29 of 1989, sec. 6, for “The Principal Officers” (w.e.f. 20-10-1989).

3. Ins. by Act 44 of 1966, sec. 10 (w.e.f. 17-6-1967).

4. Subs. by Act 29 of 1989, sec. 6, for “A Principal Officer” (w.e.f. 20-10-1989).

Section 17. Staff.

(1) The Corporation may employ such other staff of offi­cers and servants as may be necessary for the efficient transac­tion of its business provided that the sanction of the Central Government shall be obtained for the creation of any post ¹[the maximum monthly salary of which ²[exceeds such salary as may be prescribed by the Central Government].

³[(2) (a) The method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the Corporation shall be such as may be specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the Central Government drawing corresponding scales of pay:

Provided that where the Corporation is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government.

(b) In determining the corresponding scales of pay of the members of the staff under clause (a), the Corporation shall have regard to the educational qualifications, method of recruitment, duties and responsibilities of such officers and employees under the Central Government and in case of any doubt, the Corporation shall refer the matter to the Central Government whose decision thereon shall be final.]

(3) Every appointment to ⁴[posts ⁵[(other than medical posts)] corresponding to ⁶[Group A and Group B] posts under the Central Government], shall be made in consultation with the ⁷[Union] Public Service Commission:

Provided that this sub-section shall not apply to an officiating or temporary appointment for ⁸[a period] not exceeding one year:

⁹[Provided further that any such officiating or temporary ap­pointment shall not confer any claim for regular appointment and the services rendered in that capacity shall not count towards seniority or minimum qualifying service specified in the regula­tions for promotion to next higher grade.]

⁹([4) If any question arises whether a post corresponds to a ⁶[Group A and Group B] post under the Central Government, the question shall be referred to that Government whose decision thereon shall be final.]

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1. Subs. by Act 38 of 1975, sec. 3, for certain words (w.e.f. 1-9-1975).

2. Subs by Act 29 of 1989, sec. 7, for “exceeds two thousand and two hundred fifty rupees” (w.e.f. 1-2-1991).

3. Subs. by Act 29 of 1989, sec. 7, for sub-section (2) (w.e.f. 8-11-1989).

4. Subs. by Act 44 of 1966, sec. 11, for “post carrying a maximum monthly pay to five hundred rupees and above” (w.e.f. 17-6-1967).

5. Ins. by Act 29 of 1989, sec. 7(iii)(a) (w.e.f. 16-5-1990).

6. Subs. by Act 45 of 1984, sec. 3, for “Class I or Class II” (w.e.f. 27-1-1985).

7. Subs. by the A.O. 1950, for “Federal”.

8. Subs. by Act 29 of 1989, sec. 7(iii), for “an aggregate period” (w.e.f. 20-10-1989).

9. Ins. by Act 29 of 1989, sec. 7(iii) (w.e.f. 20-10-1989).

Section 18. Powers of the standing committee.

(1) Subject to the general superintendence and control of the Corporation, the Standing Committee shall administer the affairs of the Corporation and may exercise any of the powers and perform any of the functions of the Corporation.

(2) The Standing Committee shall submit for the consideration and decision of the Corporation all such cases and matters as may be specified in the regulations made in this behalf.

(3) The Standing Committee may, in its discretion, submit any other case or matter for the decision of the Corporation.

Section 19. Corporation’s power to promote measures for health, etc., of insured persons.

The Corporation may, in addition to the scheme of benefits specified in this Act, promote measures for the improvement of the health and welfare of insured persons and for the rehabilitation and re-employment of insured persons who have been disabled or injured and may incur in respect of such measures expenditure from the funds of the Corporation within such limits as may be prescribed by the Central Government.

Section 20. Meetings of corporation, standing committee and medical benefit council.

Subject to any rules made under this Act, the Corporation, the Standing Committee and the Medical Benefit Council shall meet at such times and places and shall observe such rules or procedure in regard to transaction of business at their meetings as may be specified in the regulations made in this behalf.

Section 21. Super session of the corporation and standing committee.

(1) If in the opinion of the Central Government, the Corporation or the Standing Committee persistently makes default in performing the duties imposed on it by or under this Act or abuses its powers, that Government may, by notification in the Official Gazette, supersede the Corporation, or in the case of the Standing Committee, supersede, in consultation with the Corporation, the Standing Committee :

Provided that before issuing a notification under this sub-section the Central Government shall give a reasonable opportunity to the Corporation or the Standing Committee, as the case may be, to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the Corporation or the Standing Committee, as the case may be.

(2) Upon the publication of a notification under sub-section (1) superseding the Corporation or the Standing Committee, all the members of the Corporation or the Standing Committee, as the case may be, shall, as from the date of such publication, be deemed to have vacated their offices.

(3) When the Standing Committee has been superseded, a new Standing Committee shall be immediately constituted in accordance with section 8.

(4) When the Corporation has been superseded, the Central Government may – (a) immediately appoint or cause to be ¹appointed or elected new members to the Corporation in accordance with section 4 and may constitute a new Standing Committee under section 8;

(b) in its discretion, appoint such agency, for such period as it may think fit, to exercise the powers and perform the functions of the corporation and such agency shall be competent to exercise all the powers and perform all the functions of the Corporation.

(5) The Central Government shall cause a full report of any action taken under this section and the circumstances leading to such action to be laid before ²Parliament at the earliest opportunity and in any case not later than three months from the date of the notification superseding the Corporation or the Standing Committee, as the case may be.

—————

1. Subs. by Act 29 of 1989, sec. 4, for “nominate” and “nominated” (w.e.f. 20-10-1989).

2. Subs. by A.O. 1950, for “the Central Legislature”.

Section 22. Duties of medical benefits council.

The Medical Benefit Council shall –

(a) advise ¹the Corporation and the Standing Committee on matters relating to the administration of medical benefit, the certification for purposes of the grant of benefits and other connected matters;

(b) have such powers and duties of investigation as may be prescribed in relation to complaints against medical practitioners in connection with medical treatment and attendance; and

(c) perform such other duties in connection with medical treatment and attendance as may be specified in the regulations.

—————

1.  Subs. by Act 53 of 1951, sec. 9, for “the Corporation, the Standing Committee and the Medical Commissioner” (w.e.f. 6-10-1951).

Section 23. Duties of director general and the financial commissioner.

The Director General and the Financial Commissioner shall exercise such powers and discharge such duties as may be prescribed.

They shall also perform such other functions as may be specified in the regulations.

—————

1.  Subs. by Act 29 of 1989, sec. 8, for “Principal Officers”  (w.e.f. 20-10-1989).

Section 24. Acts of corporation, etc., not invalid by reason of defect in constitution, etc.

No act of the Corporation, the Standing Committee or the Medical Benefit Council shall be deemed to be invalid by reason of any defect in the constitution of the Corporation, the Standing Committee or the Medical Benefit Council, or on the ground that any member thereof was not entitled to hold or continue in office by reason of any disqualification or of any irregularity in his ¹appointment or election, or by reason of such act having been done during the period of any vacancy in the office of any member of the Corporation, the Standing Committee or the Medical Benefit Council.

—————

1.  Subs. by Act 29 of 1989, sec. 4, for “nomination”  (w.e.f. 20-10-1989).

Section 25. Regional boards, local committees, regional and local medical benefit councils.

The Corporation may appoint Regional Boards, Local Committees and Regional and Local Medical Benefit, Councils in such areas and in such manner, and delegate to them such powers and functions, as may be provided by the regulations.

Section 26. Employees’ state insurance fund.

(1) All contributions paid under this act and all other moneys received on behalf of the Corporation shall be paid into a fund called the Employees’ State Insurance Fund which shall be held and administered by the Corporation for the purposes of this Act.

(2) The Corporation may accept grants, donations and gifts from the Central or any State Government,¹ local authority, or any individual or body whether incorporated or not, for all or any of the purposes of this Act.

²(3) Subject to the other provisions contained in this Act and to any rules or regulations made in this behalf, all moneys accruing or payable to the said Fund shall be paid into the Reserve Bank of India or such other bank as may be approved by the Central Government to the credit of an account styled the Account of the Employees’ State Insurance Fund.

(4) Such account shall be operated on by such officer as may be authorised by the Standing Committee with the approval of the Corporation.

—————

1. The words “Part B State,” omitted by Act 53 of 1951, sec. 10 (w.e.f. 6-10-1951).

2. Subs. by Act 53 of 1951, sec. 10, for sub-section (3) (w.e.f. 6-10-1951).

Section 27. Grant by the central government.

[Rep. by the Employees’ State Insurance (Amendment) Act</em>,<em> 1966 (44 of 1966), sec. 12 (w.e.f. 17-6-1967).

Section 8. Purposes for which the fund may be expended.

Subject to the provisions of this Act and of any rules made by the Central Government in that behalf, the Employees’ State Insurance Fund shall be expended only for the following purposes, namely :

(i) payment of benefits and provision of medical treatment and attendance to insured persons and, where the medical benefit is extended to their families, the provision of such medical benefit to their families, in accordance with the provisions of this Act and defraying the charges and costs in connection therewith;

(ii) payment of fees and allowances to members of the Corporation, the Standing Committee and the Medical Benefit Council, the Regional Boards, Local Committees and Regional and Local Medical Benefit Councils;

(iii) payment of salaries, leave and joining time allowances, traveling and compensatory allowances, gratuities and compassionate allowances, pensions, contributions to provident or other benefit fund of officers and servants of the Corporation and meeting the expenditure in respect of offices and other services set up for the purpose of giving effect to the provisions of this Act;

(iv) establishment and maintenance of hospitals, dispensaries and other institutions and the provisions of medical and other ancillary services for the benefit of insured persons and where the medical benefit is extended to their families, their families;

(v) payment of contributions to any State Government, ¹[***] local authority or any private body or individual, towards the cost of medical treatment and attendance provided to insured persons and, where the medical benefit is extended to their families, their families, including the cost of any building and equipment, in accordance with any agreement entered into by the Corporation;

(vi) defraying the cost (including all expenses of auditing the accounts of the Corporation and of the valuation of its assets and liabilities;

(vii) defraying the cost (including all expenses) of the Employees’ Insurance Courts set up under this Act;

(viii) payment of any sums under any contract entered into for the purposes of this Act by the Corporation or the Standing Committee or by any officer duly authorised by the Corporation or the Standing Committee in that behalf;

(ix) payment of sums under any decree, order or award of any Court or Tribunal against the Corporation or any of its officers or servants for any act done in the execution of his duty or under a compromise or settlement of any suit or other legal proceeding or claim instituted or made against the Corporation;

(x) defraying the cost and other charges of instituting or defending any civil or criminal proceedings arising out of any action taken Under this Act;

(xi) defraying expenditure, within the limits prescribed, on measures for the improvement of the health and welfare of insured persons and for the rehabilitation and re-employment of insured persons who have been disabled or injured; and

(xii) such other purposes as may be authorised by the Corporation with the previous approval of the Central Government.

———

1. The words “Part B State”, omitted by Act 53 of 1951, sec. 11 (w.e.f. 6-10-1951).

Section 28A. Administrative expenses.

The types of expenses which may be termed as administrative expenses and the percentage of the income of the Corporation which may be spent for such expenses shall be such as may be prescribed by the Central Government and the Corporation shall keep its administrative expenses within the limit so prescribed by the Central Government.

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1.  Ins. by Act 29 of 1989, sec. 9 (w.e.f. 1-5-1997).

Section 29. Holding of property, etc.

(1) The Corporation may, subject to such conditions as may be prescribed by the Central Government, acquire and hold property both movable and immovable, sell or otherwise transfer any movable or immovable property which may have become vested in or have been acquired by it and do all things necessary for the purposes for which the Corporation is established.

(2) Subject to such conditions as may be prescribed by the Central Government, the Corporation may from time to time, invest any moneys which are not immediately required for expenses properly defrayable under this Act and may, subject as aforesaid, from time to time re-invest or realise such investments.

(3) The Corporation may, with the previous sanction of the Central Government and on such terms as may be prescribed by it, raise loans and take measures for discharging such loans.

(4) The Corporation may constitute for the benefit of its staff or any class of them, such provident or other benefit fund as it may think fit.

Section 30. Vesting of the property in the corporation.

All property acquired before the establishment of the Corporation shall vest in the Corporation and all income derived and expenditure incurred in this behalf shall be brought into the books of the Corporation.

Section 31. Expenditure by central government to be treated as a loan.

[Rep. by the Employees’ State Insurance (Amendment) Act, 1966 (44 of 1966), sec. 12 (w.e.f. 17-6-1967)].

Section 32. Budget estimates.

The Corporation shall in each year frame a budget showing the probable receipts and the expenditure which it proposes to incur during the following year and shall submit a copy of the budget for the approval of the Central Government before such date as may be fixed by it in that behalf.

The budget shall contain provisions adequate in the opinion of the Central Government for the discharge of the liabilities incurred by the Corporation and for the maintenance of a working balance.

Section 33. Accounts.

The Corporation shall maintain correct accounts of its income and expenditure in such form and in such manner as may be prescribed by the Central Government.

Section 34. AUDIT.

(1) The accounts of the Corporation shall be audited annually by the Comptroller and Auditor-General of India and any expenditure incurred by him in connection with such audit shall be payable by the Corporation to the Comptroller and Auditor-General of India.

(2) The Comptroller and Auditor-General of India and any person appointed by him in connection with the audit of the accounts of the Corporation shall have the same rights and privileges and authority in connection with such audit as the Comptroller and Auditor-General has, in connection with the audit of Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Corporation.

(3) The accounts of the Corporation as certified by the Comptroller and Auditor-General of India or any other person appointed by him in this behalf together with the audit report thereon shall be forwarded to the Corporation which shall forward the same to the Central Government along with its s on the report of the Comptroller and Auditor-General.

1.  Subs. by Act 29 of 1989, sec. 10, for section 34 (w.e.f. 20-10-1989).

Section 35. Annual report.

The Corporation shall submit to the Central Government an annual report of its work and activities.

Section 36. Budget, audited accounts and the annual report to be placed before parliament.

The annual report, the audited accounts of the Corporation, ¹[together with ²[the report of the Comptroller and Auditor-General of India thereon and the s of the Corporation on such report under section 34, and the budget as finally adopted by the Corporation shall be placed before ³[Parliament] ⁴[***]..

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1. Ins. by Act 44 of 1986, sec. 13 (w.e.f. 17-6-1967).

2. Subs. by Act 29 of 1989, sec. 11, for “auditor’s report thereon” (w.e.f. 20-10-1989).

3. Subs. by the A.O. 1950, for “the Central Legislature”.

4. The words “and published in the Gazette of India” omitted by Act 29 of 1989, sec. 11 (w.e.f. 20-10-1989).

Section 37. Valuation of assets and liabilities.

The Corporation shall, at intervals of five years, have a valuation of its assets and liabilities made by a valuer appointed with the approval of the Central Government :

Provided that it shall be open to the Central Government to direct a valuation to be made at such other times as it may consider necessary.

Section 38. All employees to be insured.

Subject to the provisions of the Act, all employees in factories, or establishments to which this Act applies shall be insured in the manner provided by this Act.

s

The Employees’ State Insurance Act is aimed at conferring benefits on employees in case of sickness, maternity and employment injury. Section 38 of the Act mandates that all the employees in the factories or establishments shall be insured. The initial and vital endeavour should be to identify the beneficiaries or the employees for insurance; Transport Corporation of India v. Employees’ State Insurance Corporation, AIR 2000 SC 238.

Section 39. Contributions.

(1) The contribution payable under this Act in respect of an employee shall comprise contribution payable by the employer (hereinafter referred to as the employer’s contribution) and contribution payable by the employee (hereinafter referred to as the employee’s contribution) and shall be paid to the Corporation.

¹(2) The contributions shall be paid at such rates as may be prescribed by the Central Government

Provided that the rates so prescribed shall not be more than the rates which were in force immediately before the commencement of the Employees’ State Insurance (Amendment) Act, 1989.

²[(3) The wage period in relation to an employee shall be the unit in respect of which all contributions shall be payable under this Act.]

(4) The contributions payable in respect of each ³[wage period] shall ordinarily fall due on the last day of the ³[wage period], and where an employee is employed for part of the ³[wage period], or is employed under two or more employers during the same ³[wage period], the contributions shall fall due on such days as may be specified in the regulations.

⁴(5) (a) If any contribution payable under this Act is not paid by the principal employer on the date on which such contribution has become due, he shall be liable to pay simple interest at the rate of twelve per cent per annum or at such higher rate as may be specified in the regulations till the date of its actual payment :

Provided that higher interest specified in the regulations shall not exceed the lending rate of interest charged by any scheduled bank.

(b) Any interest recoverable under clause (a) may be recovered as an arrear of land revenue or under section 45C to section 45-I.

Explanation : In this sub-section, “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).

S

(i) No contribution need to be made on the incentive offered to the employees for a limited period and was paid at staggered intervals; Employees State Insurance Corpn., Hyderabad v. A.P. Electrical Equipment Corporation a Unit of ECE Industries Ltd., Visakhapattnam, 2005 LLR 466.

(ii) Payment of statutory interest on delayed deposit of E.S.I. contribution cannot be waived even when the E.I. Court has granted payment by instalments; Employee State Insurance Corpn. v. Bagsvig, 2005 LLR 983.

(iii) The liability to pay the entire contribution under section 39 is of the employer; Regional Director, Employees’ State Insurance Corporation v. Fashion Fab­rics, (1990) 2 CLR 844 (Ker).

(iv) Contribution is payable by the employer even in respect of casual labourers under section 39(3) and (4); Employees’ State Insurance Corporation v. Jaipur Enterprises, (1988) 56 FLR 207 (Raj).

(v) The employer is statutorily bound to contribute, whether he has sufficient resources or not; South India Viscose Co-op. Stores Ltd. v. Regional Director, Employees’ State Insurance Corporation, (1986) 68 FLR 329 (Mad).

(vi) Contribution for the past period is recoverable even if the employees had not availed the benefit of insurance; Employees’ State Insurance Corporation v. Hotel Kalpaka International, 1993 LLR 177 (SC).

(vii) Contributions are to be paid only on the wages payable to the eligible employees; Employees’ State Insurance Corporation v. Vijayamohini Mills, (1990) 76 FJR 246 (Ker).

(viii) Only wages paid to the employees can be reckoned for calculation of contributions; Employees’ State Insurance Corporation v. Ram Lal Textiles, (1990) 61 FLR 298.

(ix) The E.S.I.C. must hear an employer before determining the contribution to be payable by him if there is any dispute regard­ing such liability; Rameshwar Jute Mills Ltd. v. Employees’ State Insurance Corporation, AIR 1986 Pat 228.

(x) The employer can claim refund of ESI contributions which have been deposited by mistake; Anil Textile Industry v. Employees’ State Insurance Corporation, (1992) 64 FLR 856 (Raj).

(xi) Section 39(5)(a) applies where the employer fails to make contributions. If such failure is on account of circumstances beyond his control or if the circumstances make it impossible for the employer to make contributions even if he wanted to do so, unless he risks being hauled up for contempt of court, such failure on the part of the employer in making payments in time cannot be called a failure within the meaning of clause (a) of sub-section (5) so as to call for levying of interest; H.M.T. Ltd. v. Employees’ State Insurance Corporation, (1998) 92 FJR 454 (Kar).

(xii) The applicability of the clause (a) of sub-section (5) of section 39 of the Act is where the employer fails to make contributions. If such failure is on account of circumstances beyond his control or if the circumstances make it impossible for the employer to make contributions even if he wanted to do so unless the risks being hauled up for contempt of Court, such failure on the part of the employer in making payment in time cannot be called a failure within the meaning of this provision; Fenner (India) Ltd. v. Joint Regional Director, Employees’ State Insurance Corporation, (2003) 2 LLJ 447 (Mad).

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1. Subs. by Act 29 of 1989, sec. 12, for sub-section (2) (w.e.f. 1-2-1991).

2. Subs. by Act 45 of 1984, sec. 4, for sub-section (3) (w.e.f. 27-1-1985).

3. Subs. by Act 45 of 1984, sec. 4, for “week” (w.e.f. 27-1-1985).

4. Ins. by Act 29 of 1989, sec. 12(ii) (w.e.f. 20-10-1989).

Section 40. Principal employer to pay contributions in the first instance.

(1) The principal employer shall pay in respect of every employee, whether directly employed by him or by or through an immediate employer, both the employer’s contribution and the employee’s contribution.

(2) Notwithstanding anything contained in any other enactment but subject to the provisions of this Act and the regulations, if any, made there under, the principal employer shall, in the case of an employee directly employed by him (not being an exempted employee), be entitled to recover from the employee the employee’s contribution by deduction from his wages and not otherwise :

Provided that no such deduction shall be made from any wages other than such as relate to the period or part of the period in respect of which the contribution is payable, or in excess of the sum representing the employee’s contributing for the period.

(3) Notwithstanding any contract to the contrary, neither the principal employer nor the immediate employer shall be entitled to deduct the employer’s contribution from any wages payable to an employee or otherwise to recover it from him.

(4) Any sum deducted by the principal employer from wages under this Act shall be deemed to have been entrusted to him by the employee for the purpose of paying the contribution in respect of which it was deducted.

(5) The principal employer shall bear the expenses of remitting the contributions to the Corporation.

S

(i) Principal employer is liable to pay contributions; Vemly Hotels v. Kuldeep Singh, (1987) 55 FLR 183 (Bom).

(ii) The employer’s liability to contribute continues till the closure of factory or establishment; Employees’ State Insurance Corporation v. Hotel Kalpaka International, 1993 LLR 117 (SC).

Section 41. Recovery of contributions from immediate employer.

(1) A principal employer, who has paid contribution in respect of an employee employed by or through an immediate employer, shall be entitled to recover the amount of the contribution so paid (that is to say the employer’s contribution as well as the employee’s contribution, if any) from the immediate employer, either by deduction from any amount payable to him by the principal employer under any contract, or as a debt payable by the immediate employer.

¹(1A) The immediate employer shall maintain a register of employees employed by or through him as provided in the regulations and submit the same to the principal employer before the settlement of any amount payable under sub-section (1).

(2) In the case referred to in sub-section (1), the immediate employer shall be entitled to recover the employee’s contribution from the employee employed by or through him by deduction from wages and not otherwise, subject to the conditions specified in the proviso to sub-section (2) of section 40.

²[***]

—————

1. Ins. by Act 29 of 1989, sec. 13 (w.e.f. 1-2-1991).

2. Explanation omitted by Act 44 of 1966, sec. 14 (w.e.f. 28-1-1968).

Section 42. General provisions as to payment of contributions.

(1) No employee’s contribution shall be payable by or on behalf of an employee whose average daily wages are below ¹during a wage period are below ²Such wages as may be prescribed by the Central Government.

Explanation.—The average daily wages of an employee shall be calculated ³[in such manner as may be prescribed by the Central Government].

(2) Contribution (both the employer’s contribution and the em­ployee’s contribution) shall be payable by the principal employer for each ⁴[wage period], ⁵[in respect of the whole or part of which wages are payable to the employee and not otherwise].

⁶[***]

⁷[***]

—————

1. Subs. by Act 45 of 1984, sec. 5, for “are below one rupee and fifty paise” (w.e.f. 27-1-1985).

2. Subs. by Act 29 of 1989, sec. 14, for “six rupees” (w.e.f. 1-2-1991).

3. Subs. by Act 29 of 1989, sec. 14, for “in such manner specified in the First Schedule”(w.e.f. 1-2-1991).

4. Subs. by Act 45 of 1984, sec. 5, for “week” (w.e.f. 27-1-1985).

5. Subs. by Act 44 of 1966, sec. 15, for “during the whole or part of which an employee is employed” (w.e.f. 28-1-1968).

6. Sub-section (3) omitted by Act 45 of 1984, sec. 5 (w.e.f. 27-1-1985).

7. Sub-sections (4) and (5) omitted by Act 44 of 1966, sec. 15 (w.e.f. 28-1-1968).

Section 43. Method of payment of contribution.

Subject to the provisions of this Act, the Corporation may make regulations for any matter relating or incidental to the payment and collection of contributions payable under this Act and without prejudice to the generality of the foregoing power such regulations may provide for –

(a) the manner and time of payment of contributions;

(b) the payment of contributions by means of adhesive or other stamps affixed to or impressed upon books, cards or otherwise and regulating the manner, times and conditions in, at and under which, such stamps are to be affixed or impressed;

(bb) the date by which evidence of contributions having been paid is to be received by the Corporation;

(c) the entry in or upon books or cards of particulars of contributions paid and benefits distributed in the case of the insured persons to whom such books or cards relate; and

(d) the issue, sale, custody, production, inspection and delivery of books or cards and the replacement of books or cards which have been lost, destroyed or defaced.

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1. Ins. by Act 44 of 1966, sec. 16 (w.e.f. 28-1-1968).

Section 44. Employers to furnish returns and maintain registers in certain cases.

¹EMPLOYERS TO FURNISH RETURNS AND MAINTAIN REGISTERS IN CERTAIN CASES. (1) Every principal and immediate employer shall submit to the Corporation or to such officer of the Corporation as it may direct such returns in such form and containing such particulars relating to persons employed by him or to any factory or establishment in respect of which he is the principal or immediate employer as may be specified in regulations made in this behalf.

(2) Where in respect of any factory or establishment the Corporation has reason to believe that a return should have been submitted under sub-section (1) but has not been so submitted, the Corporation may require any person in charge of the factory or establishment to furnish such particulars as it may consider necessary for the purpose of enabling the Corporation to decide whether the factory or establishment is a factory or establishment to which this Act applies.

(3) Every principal and immediate employer shall maintain such registers or records in respect of his factory or establishment as may be required by regulations made in this behalf.

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It is mandatory on the part of the establishment to maintain the records and to produce the same whenever demanded by the authorities. If there is contravention, the punishment as stipulated by section 85(g) of the Act will be imposed; State through the Manager, State Insurance Corporation, Gulbarga v. Kranthi Kumar, 2005 LLR 376.

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1. Subs. by Act 53 of 1951, sec. 12, for section 44 (w.e.f. 6-10-1951).

Section 45. Inspectors, their functions and duties.

(1) The Corporation may appoint such persons as Inspectors, as it thinks fit, for the purposes of this Act, within such local limits as it may assign to them.

(2) Any Inspector appointed by the Corporation under sub-section (1) (hereinafter referred to as Inspector), or other official of the Corporation authorised in this behalf by it may, for the purposes of enquiring into the correctness of any of the particulars stated in any return referred to in section 44 or for the purpose of ascertaining whether any of the provisions of this Act has been complied with –

(a) require any principal or immediate employer to furnish to him such information as he may consider necessary for the purposes of this Act; or

(b) at any reasonable time enter any office, establishment, factory or other premises occupied by such principal or immediate employer and require any person found in charge thereof to produce to such Inspector or other official and allow him to examine such accounts, books and other documents relating to the employment of persons and payment of wages or to furnish to him such information as he may consider necessary; or

(c) examine, with respect to any matter relevant to the purposes aforesaid, the principal or immediate employer, his agent or servant, or any person found in such factory, establishment, office or other premises, or any person whom the said Inspector or other official has reasonable cause to believe to be or to have been an employee;

¹(d) make copies of, or take extracts from, any register, account book or other document maintained in such factory, establishment, office or, other premises;

(e) exercise such other powers as may be prescribed.

(3) An Inspector shall exercise such functions and perform such duties as may be authorised by the Corporation or as may be specified in the regulations.

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1.  Ins. by Act 53 of 1951, sec. 13 (w.e.f. 6-10-1951).

Section 45A. Determination of contributions in certain cases.

¹45A. DETERMINATION OF CONTRIBUTIONS IN CERTAIN CASES. -(1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of section 44 or any Inspector or other official of the Corporation referred to in sub-section (2) of section 45 is ²prevented in any manner by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under section 45, the Corporation may, on the basis of information available to it, by order, determine the amount of contributions payable in respect of the employees of that factory or establishment :

³Provided that no such order shall be passed by the Corporation unless the principal or immediate employer or the person in charge of the factory or establishment has been given a reasonable opportunity of being heard;

(2) An order made by the Corporation under sub-section (1) shall be sufficient proof of the claim of the Corporation under section 75 or for recovery of the amount determined by such order as an arrears of land revenue under section 45B ⁴or the recovery under section 45C to section 45-I.

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(i) The plea of the employer that he was not allowed to produce all documents and the registers to attract the applicability of the E.S.I. Act will not be tenable when these have been found to be bogus; Srinidhi Bars and Restaurant, Bangalore v. Regional Director, E.S.I. Corporation, Bangalore, 2006 LLR 41.

(ii) Assessment is ad hoc with record; R.S. Ganesh Das Dhomi Mal v. Employees’ State Insurance Corporation, (1988) 56 FLR 111 (Del).

(iii) The Limitation Act will have no scope for operation in respect of any claims arising under section 45A of the Act; Employees’ State Insurance Corporation v. Ramadas Reddiar, (1980) 56 FJR 490 (Mad).

(iv) Amount determined under section 45A can be recovered from the employer as arrears of land revenue; Modi Steels v. Employees’ State Insurance Corporation, (1989) 59 FLR 176 (All).

(v) Regional Director and not the ESI Inspector is empowered to determine the contributions by giving opportunity to the employer; Employees’ State Insurance Corporation, Jaipur v. Bharat Motors, Sri Ganganagar, 2001 LLR 49 (Raj HC).

(vi) In the absence of an order determining the amount payable under section 45A of the Employees’ State Insurance Act, 1948, recovery proceedings under section 45B of the Act could not be initiated; Employees’ State Insurance Corporation v. Depot Manager, M.P.S.R.T.C., (2003) 2 LLJ 351 (MP).

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1. Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).

2. Subs. by Act 29 of 1989, sec. 15, for “obstructed” (w.e.f. 20-10-1989).

3. Ins. by Act 29 of 1989, sec. 15 (w.e.f. 20-10-1989).

4. Added by Act 29 of 1989, sec. 15 (w.e.f. 20-10-1989).

Section 45B. Recovery of contributions.

¹[45B. Recovery of contributions.—Any contribution payable under this Act may be recovered as an arrears of land revenue.

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1. Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).

Section 45C. Issue of certificate to the recovery officer.

¹[45C. Issue of certificate to the Recovery Officer.(1) Where any amount is in arrear under this Act, the authorised officer may issue, to the Recovery Officer, a certificate under his signature specifying the amount of arrears and the Recovery Officer, on receipt of such certificate, shall proceed to recover the amount specified therein from the factory or establishment or, as the case may be, the principal or immediate employer by one or more of the modes mentioned below :

(a) attachment and sale of the movable or immovable property of the factory or establishment or, as the case may be, the principal or immediate employer;

(b) arrest of the employer and his detention in prison;

(c) appointing a receiver for the management of the movable or immovable properties of the factory or establishment or, as the case may be, the employer :

Provided that the attachment and sale of any property under this sections shall first be effected against the properties of the factory or establishment and where such attachment and sale is insufficient for recovering the whole of the amount of arrears specified in the certificate, the Recovery Officer may take such proceedings against the property of the employer for recovery of the whole or any part of such arrears.

(2) The authorised officer may issue a certificate under sub-section (1)

notwithstanding that proceedings for recovery of the arrears by any other mode have been taken.

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Attachment of Bank account of the defaulter can be undertaken for recovery of dues, notwithstanding issuance of certificate under section 45C;Ranchi Refractories v. Regional Director, Employee State Insurance Corporation, Patna, 2005 LLR 620.

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1. Ins. by Act 29 of 1989, sec. 16 (w.e.f. 1-9-1991).

Section 45D. Recovery officer to whom certificate is to be forwarded.

¹[45D. Recovery Officer to whom certificate is to be forwarded.— (1) The authorised officer may forward the certificate referred to in section 45C to the Recovery Officer within whose jurisdiction the employer –

(a) carries on his business or profession or within whose jurisdiction the principal place of his factory or establishment is situate; or

(b) resides or any movable or immovable property of the factory or establishment or the principal or immediate employer is situate.

(2) Where a factory or an establishment or the principal or immediate employer has property within the jurisdiction of more than one Recovery Officer and the Recovery Officer to whom a certificate is sent by the authorised officer –

(a) is not able to recover the entire amount by the sale of the property, movable or immovable, within his jurisdiction; or

(b) is of the opinion that, for the purpose of expediting or securing the recovery of the whole or any part of the amount, it is necessary so to do, he may send the certificate or, where only a part of the amount is to be recovered, a copy of the certificate certified in the manner prescribed by the Central Government and specifying the amount to be recovered to the Recovery Officer within whose jurisdiction the factory or establishment or the principal or immediate employer has property or the employer resides, and thereupon that Recovery Officer shall also proceed to recover the amount due under this section as if the certificate or the copy thereof had been the certificate sent to him by the authorised officer.

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1.  Ins. by Act 44 of 1966, sec. 17 (w.e.f.17-6-1967).

Section 45E. Validity of certificate and amendment thereof.

¹[45E. Validity of certificate and amendment thereof.—(1) When the authorised officer issues a certificate to a Recovery Officer under section 45C, it shall not be open to the factory or establishment or the principal or immediate employer to dispute before the Recovery Officer the correctness of the amount, and no objection to the certificate on any other ground shall also be entertained by the Recovery Officer.

(2) Notwithstanding the issue of a certificate to a Recovery Officer, the authorised officer shall have power to withdraw the certificate or correct any clerical or arithmetical mistake in the certificate by sending an intimation to the Recovery Officer.

(3) The authorised officer shall intimate to the Recovery Officer any orders withdrawing or canceling a certificate or any correction made by him under sub-section (2) or any amendment made under sub-section (4) of section 45F.

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1. Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).

Section 45F. Stay of proceedings under certificate and amendment or withdrawal thereof.

¹[45F. Stay of proceedings under certificate and amendment or withdrawal thereof.—(1) Notwithstanding that a certificate has been issued to the Recovery Officer for the Recovery of any amount, the authorised officer may grant time for the payment of the amount, and thereupon the Recovery Officer shall stay the proceedings until the expiry of the time so granted.

(2) Where a certificate for the recovery of amount has been issued, the authorised officer shall keep the Recovery Officer informed of any amount paid or time granted for payment, subsequent to the issue of such certificate.

(3) Where the order giving rise to a demand of amount for which a certificate for recovery has been issued has been modified in appeal or other proceedings under this Act, and, as a consequence thereof, the demand is reduced but the order is the subject-matter of a further proceeding under this Act, the authorised officer shall stay the recovery of such part of the amount of the certificate as pertains to the said reduction for the period for which the appeals or other proceeding remains pending.

(4) Where a certificate for the recovery of amount has been issued and subsequently the amount of the outstanding demand is reduced as a result of an appeal or other proceeding under this Act, the authorised officer shall, when the order which was the subject-matter of such appeal or other proceeding has become final and conclusive, amend the certificate or withdraw it, as the case may be.

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1.  Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).

Section 45G. Other modes of recovery.

¹[45G. Other modes of recovery.—(1) Notwithstanding the issue of a certificate to the Recovery Officer under section 45C, the Director General or any other officer authorised by the Corporation may recover the amount by any one or more of the modes provided in this section.

(2) If any amount is due from any person to any factory or establishment or, as the case may be, the principal or immediate employer who is in arrears, the Director General or any other officer authorised by the Corporation in this behalf may require such person to deduct from the said amount the arrears due from such factory or establishment or, as the case may be, the principal or immediate employer under this Act and such person shall comply with any such requisition and shall pay the sum so deducted to the credit of the Corporation :

Provided that nothing in this sub-section shall apply to any part of the amount exempt from attachment in execution of a decree of a civil court under section 60 of the Code of Civil Procedure, 1908 (5 of 1908).

(3) (i) The Director General or any other officer authorised by the Corporation in this behalf may, at any time or from time to time, by notice in writing, require any person from whom money is due or may become due to the factory or establishment or, as the case may be, the principal or immediate employer or any person who holds or may subsequently hold money for or on account of the factory or establishment or, as the case may be, the principal or immediate employer, to pay to the Director General either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as if sufficient to pay the amount due from the factory or establishment or, as the case may be, the principal or immediate employer in respect of arrears or the whole of the money when it is equal to or less than that amount.

(ii) A notice under this sub-section may be issued to any person who holds or may subsequently hold any money for or on account of the principal or immediate employer jointly with any other person and for the purposes of this sub-section, the shares of the joint-holders in such account shall be presumed, until the contrary is proved, to be equal.

(iii) A copy of the notice shall be forwarded to the principal or immediate employer at his last address known to the Director General or, as the case may be, the officer so authorised and in the case of a joint account to all the joint-holders at their last addresses known to the Director General or the officer so authorised.

(iv) Save as otherwise provided in this sub-section, every person to whom a notice is issued under this sub-section shall be bound to comply with such notice, and, in particular, where any such notice is issued to a post office, bank or an insurer, it shall not be necessary for any pass book, deposit receipt, policy or any other document to be produced for the purpose of any entry, endorsement or the like being made before payment is made notwithstanding any rule, practice or requirement to the contrary.

(v) Any claim respecting any property in relation to which a notice under this sub-section has been issued arising after the date of the notice shall be void as against any demand contained in the notice.

(vi) Where a person to whom a notice under this sub-section is sent objects to it by a statement on oath that the sum demanded or any part thereof is not due to the principal or immediate employer or that he does not hold any money for or on account of the principal or immediate employer, then, nothing contained in this sub-section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, but if it is discovered that such statement was false in any material particular, such person shall be personally liable to the Director General or the Officer so authorised to the extent of his own liability to the principal or immediate employer on the date of the notice, or to the extent of the principal or immediate employer’s liability for any sum due under this Act, whichever is less.

(vii) The Director General or the officer so authorised may, at any time or from time to time, amend or revoke any notice issued under this sub-section or extend the time for making any payment in pursuance of such notice.

(viii) The Director General or the officer so authorised shall grant a receipt for any amount paid in compliance with a notice issued under this sub-section and the person so paying shall be fully discharged from his liability to the principal or immediate employer to the extent of the amount so paid.

(ix) any person discharging any liability to the principal or immediate employer after the receipt of a notice under this sub-section shall be personally liable to the Director General or the officer so authorised to the extent of his own liability to the principal or immediate employer so discharge or to the extent of the principal or immediate employer’s liability for any sum due under this Act, whichever is less.

(x) If the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Director General or the officer so authorised, he shall be deemed to be a principal or immediate employer in default in respect of the amount specified in the notice and further proceedings may be taken against him for the realization of the amount as if it were an arrear due from him, in the manner provided in sections 45C to 45F and the notice shall have the same effect as an attachment of a debt by the Recovery Officer in exercise of his powers under section 45C.

(4) The Director General or the officer authorised by the Corporation in this behalf may apply to the court in whose custody there is money belonging to the principal or immediate employer for payment to him of the entire amount of such money, or if it is more than the amount due, an

amount sufficient to discharge the amount due.

(5) The Director General or any officer of the Corporation may, if so authorised by the Central Government by general or special order, recover any arrears of amount due from a factory or an establishment or, as the case may be, from the principal or immediate employer by distrait and sale of its or his movable property in the manner laid down in the Third Schedule to the Income-tax Act, 1961 (43 of 1961).

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1.  Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).

Section 45H. Application of certain provisions of the income-tax act.

¹[45H. Application of certain provisions of the Income-tax Act.

The provisions of the Second and Third Schedules to the Income-tax Act, 1961 (43 of 1961) and the Income-tax (Certificate Proceedings) Rules, 1962, as in force from time to time, shall apply with necessary modifications as if the said provisions and the rules referred to the arrears of the amount of contributions, interests or damages under this Act instead of to the income-tax :

Provided that any reference in the said provisions and the rules to the “assessee” shall be construed as a reference to a factory or an establishment or the principal or immediate employer under this Act.

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1.  Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).

Section 45-I. Definitions.

¹ DEFINITIONS. For the purposes of sections 45C to 45H, –

(a) “authorised officer” means the Director General, Insurance Commissioner, Joint Insurance Commissioner, Regional Director or such other officer as may be authorised by the Central Government, by notification in the Official Gazette;

(b) “Recovery Officer” means any officer of the Central Government, State Government or the Corporation, who may be authorised by the Central Government, by notification in the Official Gazette, to exercise the powers of a Recovery Officer under this Act.

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1.  Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).

Section 46. Benefits.

(1) Subject to the provisions of this Act, the insured persons, ¹[their dependants or the persons hereinafter mentioned, as the case may be,] shall be entitled to the follow­ing benefits, namely:

(a) periodical payments to any insured person in case of his sickness certified by a duly appointed medical practitioner ²[or by any other person possessing such qualifications and experience as the Corporation may, by regulations, specify in this behalf] (hereinafter referred to as sickness benefit);

³[(b) periodical payments to an insured woman in case of confine­ment or mis-carriage or sickness arising out of pregnancy, con­finement, premature birth of child or miscarriage, such woman being certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as maternity benefit);]

(c) periodical payments to an insured person suffering from disa­blement as a result of an employment injury sustained as an employee under this Act and certified to be eligible for such payments by an authority specified in this behalf by the regula­tions (hereinafter referred to as disablement benefit);

(d) periodical payments to such dependants of an insured person who dies as a result of an employment injury sustained as an employee under this Act, as are entitled to compensation under this Act (hereinafter referred to as dependants’ benefit); ⁴[***]

(e) medical treatment for and attendance on insured persons (hereinafter referred to as medical benefit); ²[and]

²[(f) payment to the eldest surviving member of the family of an insured person who has died, towards the expenditure on the funeral of the deceased insured person, or, where the insured person did not have a family or was not living with his family at the time of his death, to the person who actually incurs the expenditure on the funeral of the deceased insured person (to be known as ⁵[funeral expenses]):

Provided that the amount of such payment shall not exceed ⁶[such amount as may be prescribed by the Central Government] and the claim for such payment shall be made within three months of the death of the insured person or within such extended period as the Corporation or any officer or authority authorised by it in this behalf may allow.]

(2) The Corporation may, at the request of the appropriate Gov­ernment, and subject to such conditions as may be laid down in the regulations, extend the medical benefits to the family of an insured person.

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1. Subs. by Act 44 of 1966, sec. 18, for “or, as the case may be, their dependants” (w.e.f. 28-1-1968).

2. Ins. by Act 44 of 1966, sec. 18 (w.e.f. 28-1-1968).

3. Subs. by Act 44 of 1966, sec. 18, for original clause (b) (w.e.f. 28-1-1968).

4. The word “and” omitted by Act 44 of 1966, sec. 18 (w.e.f. 28-1-1968).

5. Subs. by Act 29 of 1989, sec. 17, for “funeral benefit” (w.e.f. 20-10-1989).

6. Subs. by Act 29 of 1989, sec. 17, for “one hundred rupees” (w.e.f. 1-2-1991).

Section 47. When person eligible for sickness benefit.

[Rep. by the Employee’s State Insurance [Amendment] Act, 1989 (29 of 1989), sec. 18 (1-2-1991)].

Section 48. When person deemed available for employment.

[Rep. by the Employees’ State Insurance (Amendment) Act, 1966 (44 of 1966), sec. 20 (28-1-1968).]

Section 49. Sickness benefit.

¹[49. Sickness benefit.—The qualification of a person to claim sickness benefit, the conditions subject to which such benefit may be given, the rates and period thereof shall be such as may be prescribed by the Central Government.

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1.  Subs. by Act 29 of 1989, sec. 19, for section 49 (w.e.f. 1-2-1991).

Section 50. Maternity benefit.

¹[50. Maternity benefit.—The qualification of an insured woman to claim maternity benefit, the conditions subject to which such benefit may be given, the rates and period thereof shall be such as may be prescribed by the Central Government.

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1.  Subs. by Act 29 of 1989, sec. 19, for section 50 (w.e.f. 1-2-1991).

Section 51. Disablement benefit.

¹[51. Disablement benefit.—Subject to the provisions of this Act ²[***],—

(a) a person who sustains temporary disablement for not less than three days (excluding the day of accident) shall be entitled to periodical payment ³[at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government];

(b) a person who sustains permanent disablement, whether total or partial, shall be entitled to periodical payment 3[at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government]:

⁴[***]]

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1. Subs. by Act 44 of 1966, sec. 23, for the original section 51 (w.e.f. 28-1-1968).

2. The words “and the regulations, if any” omitted by Act 29 of 1989, sec. 20 (w.e.f. 1-2-1991).

3. Subs. by Act 29 of 1989, sec. 20, for “for the period of such disablement in accordance with the provisions of the First Schedule” (w.e.f. -2-1991).

4. Proviso omitted by Act 29 of 1991, sec. 20 (w.e.f. 1-2-1991).

Section 51A. Presumption as to accident arising in course of employment.

¹[51A. Presumption as to accident arising in course of employment.—For the purposes of this Act, an accident arising in the course of an insured person’s employment shall be presumed, in the absence of evidence to the contrary, also to have arisen out of that employment.

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Accident arisen out of employment is to be presumed and no other evidence is required; Harjinder Kaur v. Employees’ State Insurance Corporation, (1987) 55 FLR 772 (P&H).

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1. Subs. by Act 44 of 1966, sec. 23, for the original section 51 (w.e.f. 28-1-1968).

Section 51B. Accidents happening while acting in breach of regulations, etc.

¹[51B. Accidents happening while acting in breach of regulations, etc.An accident shall be deemed to arise out of and in the course of an insured person’s employment notwithstanding that he is at the time of the accident acting in contravention of the provisions of any law applicable to him, or of any orders given by or on behalf of his employer or that he is acting without instructions from his employer, if –

(a) the accident would have been deemed so to have arisen had the act not been done in contravention as aforesaid or on without instructions from his employer, as the case may be; and

(b) the act is done for the purpose of and in connection with the employer’s trade or business.

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1.  Subs. by Act 44 of 1966, sec. 23, for the original section 51 (w.e.f. 28-1-1968).

Section 51C. Accidents happening while traveling in employer’s transport.

¹[51C. Accidents happening while travelling in employer’s trans­port.—(1) An accident happening while an insured person is, with the express or implied permission of his employer, traveling as a passenger by any vehicle to or from his place of work shall, notwithstanding that he is under no obligation to his employer to travel by that vehicle, be deemed to arise out of and in the course of his employment, if –

(a) the accident would have been deemed so to have arisen had he been under such obligation; and

(b) at the time of the accident, the vehicle –

(i) is being operated by or on behalf of his employer or some other person by whom it is provided in pursuance of arrangements made with his employer, and

(ii) is not being operated in the ordinary course of public transport service.

(2) In this section “vehicle” includes a vessel and an aircraft.

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1.  Subs. by Act 44 of 1966, sec. 23, for the original section 51 (w.e.f. 28-1-1968).

Section 51D. Accidents happening while meeting emergency.

¹[51D. Accidents happening while meeting emergency.—An accident happening to an insured person in or about any premises at which he is for the time being employed for the purpose of his employer’s trade or business shall be deemed to arise out of and in the course of his employment, if it happens while he is taking steps, on an actual or supposed emergency at those premises, to rescue, succor or protect persons who are, or are thought to be or possibly to be, injured or imperiled, or to avert or minimize serious damage to property.

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1.  Subs. by Act 44 of 1966, sec. 23, for the original section 51 (w.e.f. 28-1-1968).

Section 52. Dependant’s benefits.

¹[52. Dependant’s benefit.—(1) If an insured person dies as a result of an employment injury sustained as an employee under this Act (whether or not he was in receipt of any periodical payment for temporary disablement in respect of the injury) dependant’s benefit shall be payable ²[at such rates and for such period and subject to such conditions as may be prescribed by the Central Government] to his dependants specified in ³[sub-clause (i), sub-clause (ia) and] sub-clause (ii) of clause (6A) of sec­tion 2.

(2) In case the insured person dies without leaving behind him the dependants as aforesaid, the dependants’ benefit shall be paid to the other dependants of the deceased at such rates and for such period and subject to such conditions as may be prescribed by the Central Government.

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1.  Subs. by Act 44 of 1966, sec. 24, for the original section 52 (w.e.f. 28-1-1968).

2.  Subs. by Act 29 of 1989, sec. 21, for “in accordance with the provisions of the First Schedule” (w.e.f. 1-2-1991).

3.  Subs. by Act 29 of 1989, sec. 21, for “sub-clause (i) and” (w.e.f. 1-2-1991).

Section 52A. Occupational disease.

¹[52A. Occupational disease.—(1) If an employee employed in any employment specified in Part A of the Third Schedule contracts any disease specified therein as an occupational disease peculiar to that employment, or if an employee employed in the employment specified in Part B of that Schedule for a continuous period of not less than six months contracts any disease specified therein as an occupational disease peculiar to that employment or if an employee employed in any employment specified in Part C of that Schedule for such continuous period as the Corporation may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall, unless the contrary is proved, be deemed to be an “employment injury” arising out of and in the course of employment.

(2) (i) Where the Central Government or a State Government, as the case may be, adds any description of employment to the employments specified in Schedule III to the Workmen’s Compensation Act, 1923 (8 of 1923), by virtue of the powers vested in it under sub-section (3) of section 3 of the said Act, the said description of employment and the occupational diseases specified under that sub-section as peculiar to that description of employment shall be deemed to form part of the Third Schedule.

(ii) Without prejudice to the provisions of clause (i), the Corporation after giving, by notification in the Official Gazette, not less than three months’ notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in the Third Schedule and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively and thereupon the provisions of this Act shall apply, as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.

(3) Save as provided by sub-sections (1) and (2), no benefit shall be payable to an employee in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.

(4) The provisions of section 51A shall not apply to the cases to which this section applies.

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1.  Subs. by Act 44 of 1966, sec. 24, for the original section 52 (w.e.f. 28-1-1968).

Section 53. Bar against receiving or recovery of compensation or damages under any other law.

¹[53. Bar against receiving or recovery of compensation or damag­es under any other law.An insured person or his dependants shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen’s Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act.

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1. Subs. by Act 44 of 1966, sec. 25, for the original section 53 (w.e.f. 28-1-1968).

Section 54. Determination of question of disablement.

¹DETERMINATION OF QUESTION OF DISABLEMENT. Any question – (a) whether the relevant accident has resulted in permanent disablement; or

(b) whether the extent of loss of earning capacity can be assessed provisionally or finally; or

(c) whether the assessment of the proportion of the loss of earning capacity is provisional or final; or

(d) in the case of provisional assessment, as to the period for which such

assessment shall hold good, shall be determined by a medical board constituted in accordance with the provisions of the regulations and any such question shall hereafter be referred to as the “disablement question”

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1. Subs. by Act 44 of 1966, sec. 26, for the original section 54 (w.e.f. 28-1-1968).

Section 54A. References to medical boards and appeals to medical appeal tribunals and employees’ insurance courts.

¹[54A. References to medical boards and appeals to medical appeal tribunals and Employees’ Insurance Courts.

(1) The case of any insured person for permanent disablement benefit shall be referred by the corporation to a medical board for determination of the disablement question and if, on that or any subsequent reference, the extent of loss of earning capacity of the insured person is provisionally assessed, it shall again be so referred to the medical board not later than the end of the period taken into account by the provisional assessment.

(2) If the insured person or the Corporation is not satisfied with the decision of the medical board, the insured person or the Corporation may appeal in the prescribed manner and within the prescribed time to – (i) the medical appeal tribunal constituted in accordance with the provisions of the regulations with a further right of appeal in the prescribed manner and within the prescribed time to the Employees’ Insurance Court, or

(ii) the Employees’ Insurance Court directly :

²Provided that no appeal by an insured person shall lie under this sub-section if such person has applied for commutation of disablement benefit on the basis of the decision of the medical board and received the commuted value of such benefit :

Provided further that no appeal by the Corporation shall lie under this sub-section if the Corporation paid the commuted value of the disablement benefit on the basis of the decision of the medical board.

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1. Subs. by Act 44 of 1966, sec. 26, for the original section 54 (w.e.f. 28-1-1968).

2.  Ins. by Act 29 of 1989, sec. 22 (w.e.f. 20-10-1989).

Section 55. Review of decisions by medical board or medical appeal tribunal.

¹[55. Review of decisions by medical board or medical appeal tribunal.—(1) Any decision under this Act of a medical board or a medical appeal tribunal may be reviewed at any time by the medical board or the medical appeal tribunal, as the case may be, if it is satisfied by fresh evidence that the decision was given in consequence of the non-disclosure or misrepresentation by the employee or any other person of a material fact (whether the non-disclosure or misrepresentation was or was not fraudulent).

(2) Any assessment of the extent of the disablement resulting from the relevant employment injury may also be reviewed by a medical board, if it is satisfied that since the making of the assessment there has been a sub-spatial and unforeseen aggravation of the results of the relevant injury :

Provided that an assessment shall not be reviewed under this sub-section unless the medical board is of opinion that having regard to the period taken into account by the assessment and the probable duration of the aggravation aforesaid, substantial injustice will be done by not reviewing it.

(3) Except with the leave of a medical appeal tribunal, an assessment shall not be reviewed under sub-section (2) on any application made less than five years, or in the case of a provisional assessment, six months, from the date thereof and on such a review the period to be taken into account by any revised assessment shall not include any period before the date of the application.

(4) Subject to the foregoing provisions of this section, a medical board may deal with a case of review in any manner in which it could deal with it on an original reference to it, and in particular may make a provisional assessment notwithstanding that the assessment under review was final; and the provisions of section 54A shall apply to an application for review under this section and to a decision of a medical board in connection with such application as they apply to a case for disablement benefit under that section and to a decision of the medical board in connection with such case.

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1.  Subs. by Act 44 of 1966, sec. 27, for the original section 55 (w.e.f. 28-1-1968).

Section 55A. Review of dependants’ benefit.

¹[55A. Review of dependants’ benefit.—(1) Any decision awarding dependants’ benefit under this Act may be reviewed at any time by the Corporation if it is satisfied by fresh evidence that the decision was given in consequence of non-disclosure or misrepresentation by the claimant or any other person of a material fact (whether the non-disclosure, or misrepresentation was or was not fraudulent) or that the decision is no longer in accordance with this Act due to any birth or death or due to the marriage, re-marriage or cesser of infirmity of, or attainment of the age of eighteen years by, a claimant.

(2) Subject to the provisions of this Act, the Corporation may, on such review as aforesaid, direct that the dependent’s benefit be continued, increased, reduced or discontinued.

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1.  Subs. by Act 44 of 1966, sec. 27, for the original section 55 (w.e.f. 28-1-1968).

Section 56. Medical benefit.