Bare Acts Page 115

National Green Tribunal Act

November 30, 2014

Section 1. Short title and commencement

(1) This Act may be called the National Green Tribunal Act, 2010.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

Section 2. Definitions

(1) In this Act, unless the context otherwise requires,-

(a) “accident” means an accident involving a fortuitous or sudden or unintended occurrence while handling any hazardous substance or equipment, or plant, or vehicle resulting in continuous or intermittent or repeated exposure to death, of, or, injury to, any person or damage to any property or environment but does not include an accident by reason only of war or civil disturbance;

(b) ” Chairperson” means the Chairperson of the National Green Tribunal;

(c) “environment” include water, air and land and the inter-relationship, which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property;

(d) “Expert Member” means a member of the Tribunal who, is appointed as such, and holds qualifications specified in sub-section (2) of section 5, and, is not a Judicial Member;

(e) “handling”, in relation to any hazardous substance, means the manufacture, processing, treatment, package, storage, trasnpiration, use, collection, destruction, conversion, offering for sale, transfer or the like of such hazardous substance;

(f) “hazardous substance” means any substance or preparation which is defined as hazardous substance in the Environment (Protection) Act, 1986, and exceeding such quantity as specified or may be specified by the Central Government under the Public Liability Insurance Act, 1991; (29 of 1986, 6 of 1991)

(g) “injury” includes permanent, partial or total disablement or sickness resulting out of an accident;

(h) “Judicial Member” means a member of the Tribunal who is qualified to be appointed as such under sub-section (1) of section 5 and includes the Chairperson;

(i) “notification” means a notification published in the Official Gazette;

(j) “person” includes—

(i) an individual,

(ii) a Hindu undivided family,

(iii) a company,

(iv) a firm,

(v) an association of persons or a body of individuals, whether incorporated or not,

(vi) trustee of a trust,

(vii) a local authority, and

(viii) every artificial juridical person, not falling within any of the proceeding sub-clauses;

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

(l) “Schedule” means Schedules I, II and III appended to this Act;

(m) “substantial question relating to environment” shall include an instance where,—

(i) there is a direct violation of a specific statutory environment obligation by a person by which,—

(A) the community at large other than an individual or group of individuals is affected or likely to be affected by the environmental consequences; or

(B) the gravity of damage to the environment or property is substantial; or

(ii) the environmental consequences relate to a specific activity or a point source of pollution;

(n) “Tribunal” means the National Green Tribunal established under section 3;

(o) “workman” has the meaning assigned to it in the Workmen’s Compensation Act, 1923. ( 8 of 1923).

(2) The words and expressions used in this Act but not defined herein and defined in the Water (Prevention and Control of Pollution) Act, 1974, the Water (Prevention and Control of Pollution) Cess Act, 1977, the Forest (Conservation) Act, 1980, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991, and the Biological Diversity Act, 2002 and other Acts relating to environment shall have the meaning, respectively, assigned to them in those Acts.

Chapter II – Establishment of the Tribunal

Section 3. Establishment of Tribunal

The Central Government shall, by notification, established, with effect from such date as may be specified therein, a Tribunal to be known as the National Green Tribunal to exercise the jurisdiction, powers and authority conferred on such Tribunal by or under this Act.

Section 4. Composition of Tribunal

(1) The Tribunal shall consist of —-

(a) a full time Chairperson;

(b) not less than ten but subject to maximum of twenty full time Judicial Members as the Central Government may, from time to time, notify;

(c) not less than ten but subject to maximum of twenty full time Expert Members, as the Central Government may, from time to time, notify.

(2) The Chairperson of the Tribunal may, if considered necessary, invite any one or more person having specialised knowledge and experience in a particular case before the Tribunal to assist the Tribunal in that case.

(3) The Central Government may, by notification, specify the ordinary place or places of sitting of the Tribunal, and the territorial jurisdiction falling under each such place of sitting.

(4) The Central Government may, in consultation with the Chairperson of the Tribunal make rules regulating generally the practices and procedure of the Tribunal including—

(a) the rules as to the persons who shall be entitled to appear before the Tribunal;

(b) the rules as to the procedure for hearing applications and appeals and other matters [including the circuit procedure for hearing at a place other than the ordinary place of its sitting falling within the jurisdiction referred to in sub-section (3)], pertaining to the application and appeals;

(c) the minimum number of Members who shall hear the application and appeals in respect of any class or classes of applications and appeals;

Provided that the number of Expert Members shall, in hearing an application or appeal, be equal to the number of Judicial Members hearing such application or appeal;

(d) rules relating to transfer of cases by the Chairperson from one place of sitting (including the ordinary place of sitting) to other place of sitting.

Section 5. Qualifications for appointment of Chairperson, Judicial Member and Expert Member

(1) A person shall not be qualified for appointment as the Chairperson or Judicial Member of the Tribunal unless he is, or has been, a Judge of the Supreme Court of India or Chief Justice of a High Court;

Provided that a person who is or has been a Judge of the High Court shall also be qualified to be appointed as a Judicial Member.

(2) A person shall not be qualified for appointment as an Expert Member, unless he,—

(a) has a degree in Master of Science (in physical sciences or life sciences) with a Doctorate degree or Master of Engineering or Master of Technology and has an experience of fifteen years in the relevant field including five years practical experience in the field of environment and forests (including pollution control, hazardous substance management, environment impact assessment, climate change management, biological diversity management and forest conservation) in a reputed National level institution; or

(b) has administrative experience of fifteen years including experience of five years in dealing with environmental matters in the Central or a State Government or in a reputed National or State level institution.

(3) The Chairperson, Judicial Member, and Expert Member of the Tribunal shall not hold any other office during their tenure as such.

(4) The Chairperson and other Judicial and Expert Members shall not, for a period of two years from the date on which cease to hold office, accept any employment in, or connected with the management or administration of, any person who has been a party to a proceeding before the Tribunal under this Act;

Provided that nothing contained in this section shall apply to any employment under the Central Government or a State Government or local authority or in any statutory authority or any corporation established by or under any Central, State or Provincial Act or a Government compnay as defined in section 617 of the Companies Act, 1956. (1 of 1956).

Section 6. Appointment of Chairperson, Judicial Member and Expert Member

(1) Subject to the provisions of section 5, the Chairperson, Judicial Members and Expert Members of the Tribunal shall be appointment by the Central Government.

(2) The Chairperson shall be appointed by the Central Government in consultation with the Chief Justice of India.

(3) The Judicial Members and Expert Members of the Tribunal shall be appointed on the recommendations of such Selection Committee and in such manner as may be prescribed.

Section 7. Term of office and other condition of service of Chairperson, Judicial Member and Expert Member

The Chairperson, Judicial Member and Expert Member of the Tribunal shall hold office as such for a term of five years from the date on which they enter upon their office, but shall not be eligible for re-appointment.

Provided that in case a person, who is or has been a Judge of the Supreme Court, has been appointed as Chairperson or Judicial Member of the Tribunal, he shall not hold office after he has attained the age of seventy years.

Provided further that in case a person, who is or has been the Chief Justice of a High Court, has been appointed as Chairperson or Judicial Member of the Tribunal, he shall not hold office after he has attained the age of sixty-seven years;

Provided also that in case a person, who is or has been a Judge of a High Court, has been appointed as Judicial Member of the Tribunal, he shall not hold office after he has attained the age of sixty-seven years;

Provided also that no Expert Member shall hold office after he has attained the age of sixty-five years;

Section 8. Resignation

The Chairperson, Judicial Member and Expert Member of the Tribunal may, by notice in writing under their hand addressed to the Central Government, resign their office.

Section 9. Salaries, allowances and other terms and conditions of service

The salaries and a allowances payable to, and the other terms and condition of service (including pension, gratuity and other retirement benefits) of, the Chairperson, Judicial Member and Expert Member of the Tribunal shall be such as may be prescribed;

Provided that neither the salary and allowances not the other terms and conditions of service of the Chairperson, Judicial Member and Expert Member shall be varied to their disadvantage after their appointment.

Section 10. Removal and suspension of Chairperson, Judicial Member and Expert Member

(1) The Central Government may, in consultation with the Chief Justice of India, remove from office of the Chairperson on Judicial Member of the Tribunal, who,–

(a) has been adjudged on insolvent; or

(b) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or

(d) has acquired such financial or other interest as a likely to affect prejudicially his functions; or

(e) has so abused his position as to render his continuance in office prejudicial to the public interest.

(2) The Chairperson or Judicial Member shall not be removed from his office except by an order made by the Central Government after an inquiry made by a Judge of the Supreme Court in which such Chairperson or Judicial Member has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

(3) The Central Government may suspend from office the Chairperson or Judicial Member in respect of whom a reference of conducting an inquiry has been made to the Judge of the Supreme Court under sub-section (2), until the Central Government passes an order on receipt of the report of inquiry made by the Judge of the Supreme Court on such reference.

(4) The Central Government may, by rules, regulate the procedure for inquiry referred to in sub-section (2).

(5) The Expert Member may be removed from his office by an order of the Central Government on the grounds specified in sub-section (1) and in accordance with the procedure as may be notified by the Central Government;

Provided that the Expert Member shall not be removed unless he has beengiven an opportunity of being heard in the matter.

Section 11. To act as Chairperson of Tribunal or to discharge his functions in certain circustances

In the event of the occurrence of any vacancy in the office of the Chairperson of the Tribunal, by reason of his death, resignation or otherwise, such Judicial Member of the Tribunal as the Central Government may, be notification, authorised in this behalf, shall act as the Chairperson until the date on which a new Chairperson is appointed in accordance with the provisions of this Act.

Section 12. Staff of Tribunal

(1) The Central Government shall determine the nature and categories of the officers and other employees to assist the Tribunal in the discharge of its functions.

(2) The recruitment of the officers and other employees of the Tribunal shall be made by the Chairperson in such manner as may be prescribed.

(3) The officers and other employees of the Tribunal shall discharge their functions under the general superintendence of the Chairperson.

(4) The salaries and allowances and conditions of service of the officers and other employees of the Tribunal shall be such as may be prescribed.

Section 13. Financial and adminisrative powers of Chairperson

The Chairperson of the Tribunal shall exercise such financial and administrative powers as may be vested in him under the rules made by the Central Government:

Provided that the Chairperson may delegate such of his financial and administrative powers, as he may think fit, to any Judicial Member or Expert Member or officer of the Tribunal subject to the condition that the Member or such officer, while exercising such delegated power, continues to act under the direction, control and supervision of the Chairperson.

Chapter III – Jurisdiction, Powers and Proceedings of the Tribunal

Section 14. Tribunal to settle disputes

(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactment specified in Schedule I.

(2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.

(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose;

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.

Section 15. Relief, compensation and restitution

(1) The Tribunal may, by an order, provide,—

(a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);

(b) for restitution of property damaged;

(2) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991. (6 of 1991)

(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose:

Provided that the Tribunal may, if it is satisfied that the application was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.

(4) The Tribunal may, having regard to the damage to public health, property and environment divided the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.

(5) Every claimant of the compensation or relief under this act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority.

Section 16. Tribunal to have appellate jurisdiction

Any person aggrieved by, —-

(a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 28 of the Water (Prevention and Control of Pollution) Act, 1974; (6 of 1974)

(b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under section 29 of the Water (Prevention and Control of Pollution) Act, 1974; ( 6 of 1974).

(c) direction issued, onor after the commencement of the National Green Tribunal Act, 2010, by a Board, under section 33A of the Water (Prevention and Control of Pollution) Act, 1974; (6 of 1974)

(d) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977; (36 of 1977)

(e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under section 2 of the Forest (Conservation) Act, 1980; (69 of 1980);

(f) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under section 31 of the Air (Prevention and Control of Pollution) Act, 1981; (14 of 1981);

(g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under section 5 of the Environment (Protection) Act, 1986; (29 of 1986);

(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986; (29 of 1986);

(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986; (29 of 1986);

(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of the Biological Diversity Act, 2002, may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal (18 of 2003);

Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days.

Section 17. Liability to pay relief or compensation in certain cases

(1) Where death of, or injury to, any person (other than a workman) or damage to any property or environment has resulted from an accident or the adverse impact of an activity or operation or process, under any enactment specified in Schedule I, the person responsible shall be liable to pay such relief or compensation for such death, injury or damage, under all or any of the heads specified in Schedule II, as may be determined by the Tribunal.

(2) If the death, injury or damage caused by an accident or the adverse impact of an activity or operation or process under any enactment specified in Schedule I cannot be attributed to any single activity or operation or process but in the combined or resultant effect of several such activities, operations and processes, the Tribunal may, apportion the liability for relief or compensation amongst those responsible for such activities, operations and processes on an equitable basis.

(3) The Tribunal shall, in case of an accident, apply the principle of no fault

Section 18. Application or appeal to Tribunal

(1) Each application under sections 14 and 15 or an appeal under section 16 shall, be made to the Tribunal in such form, contain such particulars, and, be accompanied by such documents and such fees as may be prescribed.

(2) Without prejudice to the provisions contained in section 16, an application for grant of relief or compensation or settlement of dispute may be made to the Tribunal by—

(a) the person, who has sustained the injury; or

(b) the owner of the property to which the damage has been caused; or

(c) where death has resulted from the environmental damage, by all or any of the legal representatives of the deceased; or

(d) any agent duly authorised by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be; or

(e) any person aggrieved, including any representative body or organisation; or

(f) the Central Government or a State Government or a Union territory Administration or the Central Pollution Control Board or a State Pollution Control Board or a Pollution Control Committee or a local authority, or any environmental authority constituted or established under the Environment (Protection) Act, 1986 or any other law for the time being in force; (29 of 1986);

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation or relief or settlement of dispute, 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 imp leaded as respondents to the application;

Provided further that the person, the owner, the legal representative, agent, representative body or organisation shall not be entitled to make an application for grant of relief or compensation or settlement of dispute if such person, the owner, the legal representative, agent, representative body or organisation have preferred an appeal under section 16.

(3) The application, or as the case may be, the appeal filed before the Tribunal under this act shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application, or, as the case may be, the appeal, after providing the parties concerned an opportunity to be heard.

Section 19. Procedure and powers of Tribunal

(1) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice. (5 of 1908).

(2) Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure.

(3) The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872 (1 of 1872).

(4) The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely:— (5 of 1908).

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(d) subject to the provisions of section 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or copy of such record or document from any office; (1 of 1872).

(e) issuing commissions for the examination of witnesses or documents;

(f) reviewing its decision;

(g) dismissing an application for default or deciding it ex parte;

(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte;

(i) pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act;

(j) pass an order requiring any person to cease and desist from committing or causing any violation of any enacetment specified in Schedule I;

(k) any other matter which may be prescribed.

(5) All proceedings before the Tribunal shall be deemed to the judicial proceedings within the meaning of section 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code and the Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (45 of 1860 & 2 of 1974).

Section 20. Tribunal to apply certain principles

The Tribunal shall, while passing any order or decision or award, apply the principles of sustanable development, the precuationary principle and the polluter pays principles.

Section 21. Decision to be taken by majority

The decision of the Tribunal by majority of Members shall be binding:

Provided that if there is a difference of opinion among the Members hearing an application or appeal, and the opinion is equally divided, the Chairperson shall hear (if he has not heard such application or appeal) such application or appeal and decide:

Provided further that where the Chairperson himself has heard such application or appeal alongwith other Members of the Tribunal, and if there is a difference of opinion among the Members in such cases and the opinion is equally divided, he shall refer the matter to other Members of the Tribunal who shall hear such application or appeal and decide.

Section 22. Appeal to Supreme Court

Any person aggrieved by any award, decision or order of the Tribunal, may, file an appeal to the Supreme Court, within ninety days from the date of communication of the award, decision order of the Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908).

Provided that the Supreme Court may entertain any appeal after the expiry of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal.

Section 23. Cost

(1) While disposing of an application or an appeal under this Act, the Tribunal shall have power to make such order as to costs, as it may consider necessary.

(2) Where the Tribunal holds that a not maintainable, or is false or vexatious, and such claim is disallowed, in whole or in part, the Tribunal may, if it so thinks fit, after recording its reasons for holding such claim to be false or vexatious, make an order to award costs, including lost benefits due to any interim injunctions.

Section 24. Deposit of amount payable for damage to environment

(1) Where any amount by way of compensation or relief is ordered to be paid under any award or order made by the Tribunal on the ground of any damage to environment, the amount shall be remitted to the authority specified under sub-section (3), of section 7A of the Public Liability Insurance Act, 1991 for being credited to the Environmental Relief Fund established under that section. (6 of 1991).

(2) The amount of compensation or relief credited to the Environmental Relief Fund under sub-section (1), may, notwithstanding anything contained in the Public Liability Insurance Act, 1991, be utilised by such persons or authority, in such manner and for such purposes relating to environment, as may be prescribed. (6 of 1991).

Section 25. Execution of award or order or decision of Tribunal

(1) An award or order or decision of the Tribunal under this Act shall be executable by the Tribunal as a decree of a civil court, and for this purpose, the Tribunal shall have all the powers of a civil court.

(2) Notwithstanding anything contained in sub-section (1), the Tribunal may transmit any order or award made by it to a civil court having local jurisdiction and such civil court shall execute the order or award as if it were a decree made by that court.

(3) Where the person responsible, for death of, or injury to any person or damage to any property and environment, against whom the award or order is made by the Tribunal, fails to make the payment or deposit the amount as directed by the Tribunal within the period so specified in the award or order, such amount, without prejudice to the filing of complaint for prosecution for an offence under this Act or any other law for the time being in force, shall be recoverable from the aforesaid person as arrears of land revenue or of public demand.

Chapter IV – Penalty

Section 26. Penalty for failure to comply with orders of Tribunal

(1) Whosever, fails to comply with any order or award or decision of the Tribunal under this act, he shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten crore rupees, or with both and in case the failure or contravention continues, with additional fine which may extend to twenty-five thousand rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention:

Provided that in case a company fails to with any order or award or a decision of the Tribunal under this Act, such company shall be punishable with fine which may extend to twenty-five crore rupees, and in case the failure or contravention continues, with additional fine which may extend to one lakh rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence under this Act shall be deemed to be non-cognizable within the meaning of the said Code. (2 of 1974).

Section 27. Offences by companies

(1) Where any offence under this act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly;

Provided that nothing contained in this 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 had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where on offence under this Act has been committed by the company and it is proved that 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 28. Offences by Government Department

(1) Where any department of the Government fails to comply with any order or award or decision of the Tribunal under this Act, the Head of the Department shall be deemed to be guilty of such failure and shall be liable to be proceeded against for having committed an offence under this Act and punished accordingly:

Provided that nothing contained in this section shall render such Head of the Department liable to any punishment if he proves that the offence was committed without his knowledge or that the 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 Department of the Government and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any officer, other than the head of the Department, such officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Chapter V – Miscellaneous

Section 29. Bar of jurisdiction

(1) With effect from the date of establishment of the Tribunal under this Act, no civil court shall have jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to determine under its appellate jurisdiction.

(2) No civil court shall have jurisdiction to settle dispute or entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged or environment damaged which may be adjudicated upon by the Tribunal and no injunction in respect of any action taken or to be taken by or before the Tribunal in respect of the settlement of such dispute or any such claim for granting any relief or compensation or restitution of property damaged or environment damaged shall be granted by the civil court.

Section 30. Cognizance of offences

(1) No court shall take cognizance of any offence under this act except on a complaint made by—

(a) the Central Government or any authority or officer authorised in this behalf by that Government; or

(b) any person who has given notice of not less than sixty days in such manner as may be prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid.

(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 31. Members and staff of Tribunal to be public servants

The Chairperson, the Judicial and Expert Members, officers and other employees of the Tribunal shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code.

Section 32. Protection of action taken in good faith

(1) No suit or legal proceeding shall lie against the employees of the Central Government or a State Government or any statutory authority, for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made there under.

(2) No suit, prosecution or other legal proceeding shall lie against the Chairperson or, Judicial Member or Expert Member of the Tribunal or any other person authorized by the Chairperson or Judicial Member or the Expert Member for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made there under.

Section 33. Act to have overriding effect

The provisions of this Act, shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

Section 34. Power to amend Schedule I

(1) The Central Government may, by notification, amend the Schedule I by including therein any other act, enacted by Parliament having regard to the objective of environmental protection and conservation of natural resources, or omitting there from any act already specified therein and on the date of publication of such notification, such act shall be deemed to be included in or, as the case may be, omitted from the Schedule I.

(2) A copy of every notification proposed to be issued under sub-section (I), shall be laid in draft 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 disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses.

Section 35. Power to make rules

(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of the Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—

(a) rules as to the persons who shall be entitled to appear before the Tribunal under clause (a) of sub-section (4) of section 4;

(b) the procedure for hearing applications and appeals and other matters pertaining to the applications and appeals under clause (b) of sub-section (4) of section 4;

(c) the minimum number of members who shall hear the applications and appeals in respect of any class or applications and appeals under clause (c) of sub-section (4) of section 4;

(d) the transfer of cases by the Chairperson from one place of sitting (including the ordinary place of sitting) to other place of sitting;

(e) the selection committed and the manner of appointment of the Judicial Member and Expert Member of the Tribunal under sub-section (3) of section 6;

(f) the salaries and allowances payable to, and other terms and conditions of service (including pension, gratuity and other retirement benefits) of, the Chairperson , Judicial Member and Expert Member of the Tribunal under section 9;

(g) the procedure for inquiry of the charges against the Chairperson or Judicial Member of the Tribunal under sub-section (4) of section 10;

(h) the recruitment of officers and other employees of the Tribunal under sub-section (2) of section 12; and the salaries and allowances and other conditions of service of the officers and other employees of the Tribunal under sub-section (4) of that section;

(i) the finanical and administrative powers to be exercised by the Chairperson of the Tribunal under section 13;

(j) the form of application or appeal, the particulars which it shall contain and the documents to be accompanied by and the fees payable under sub-section (1) of section 18;

(k) any such matter in respect of which the Tribunal shall have powers of a civil court under clause (k) of sub-section (4) of section 19;

(l) the manner and the purposes for which the amount of compensation or relief credited to the Environment Relief Fund shall be utilised under sub-section (2) of section 24;

(m) the manner of giving notice to make a complaint under clause (b) of sub-section (I) of section 30;

(n) any other matter which is required to be, or may be, specified by rules or in respect of which provision is to be made by rules.

(3) Every rule made under this Act by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more sucessive 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 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 ammunlment shall be without prejudice to the validity of anything previously done under that rule.

Section 36. Amendment of certain enactments

The enactments specified in the Schedule III to this Act be amended in the manner specified therein and such ammendments shall take effect on the date of establishment of the Tribunal

Section 37. Power to remove difficulties

(1) If any difficulty arises in giving effect to the provisions of this act, the Central Government, may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as may appear to it to be necessary for removing the difficutly:

Provided that no such order shall be made after the expiry of a period of two years from the commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

Section 38. Repeal and savings

(1) The National Environment Tribunal Act, 1995, and the National Environment Appellate Authority Act,1997 are hereby repealed (hereinafter referred to as the repealed Act.) (27 of 1995 and 22 of 1997).

(2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have done or taken under the corresponding provisions of this Act.

(3) The National Environment Appellate Authority established under sub-section (1) of section 3 of the National Environment Appellate Authority Act, 1997, shall, on the establishment of the National Green Tribunal under the National Green Tribunal Act, 2010, stand dissolved. (22 of 1997).

(4) On the dissolution of the National Environment Appellate Authority established under sub-section (1) of section 3 of the National Environment Appellate Authority Act, 1997, the persons appointed as the Chairperson, Vice-chairperson and every other person appointed as Member of the Said National Environment Appellate Authority and holding office as such immediately before the establishment of the National Green Tribunal under the National Green Tribunal Act, 2010 shall vacate their respective offices and no such chairperson, Vice-Chairperson and every other person appointed as member shall be entitled to claim any compensation for the premature termination of the term of his office or of any contract of service. (22 of 1997)

(5) All cases pending before the National Environment Appellate Authority established under sub-section (1) of section 3 of the National Environment Appellate Authority Act, 1997 on or before the establishment of the National Green Tribunal under the National Green Tribunal Act, 2010, shall, on such establishment, stand transferred to the said National Green Tribunal and the National Green Tribunal shall dispose of such cases as if they were cases filed under that Act. (22 of 1997)

(6) The officers or other employees who have been, immediately before the dissolution of the National Environment Appellate Authority appointed on deputation basis to the National Environment Appellate Authority, shall on such dissolution stand reverted to their parent cadre, Ministry or Department, as the case may be.

(7) On the dissolution of the National Environment Appellate Authority, the officers and other employees appointed on contract basis under the National Environment Appellate Authority and holding office as such immediately before such dissolution, shall vacate their respective offices and such officers and other employees shall be entitled to claim compensation for three months’ pay and allowances or pay and allowances for the remaining period of service, whichever is less, for the premature termination of term of their office under their contract of service.

(8) The mention of the particular matters referred to in sub-sections (2) to (7) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeal. (10 of 1897).

The Schedule I

[See Sections 14(1), 15(1), 17(1)(a), 17(2), 19(4)(j) and 34 (l)]

1. The Water (Preventtion and Control of Pollution) Act, 1974;

2. The Water (Prenvention and Control of Pollution) Cess Act, 1977;

3. The Forest (Conservation) Act, 1980;

4. The Air (Prevention and Control of Pollution) Act, 1981;

5. The Environment (Protection) Act, 1986;

6. The Public Liability Insurance Act, 1991;

7. The Biological Diversity Act, 2002.

The Schedule II

[See Sections 15(4) and 17(1)]

Heads Under Which Compensation Or Relief For Damage May be Claimed

(a) Death;

(b) Permanent, temporary, total or partial disability or other injury or sickness;

(d) Medical expenses incurred for treatment of injuries or sickness;

(e) Damages to private property;

(f) Expenses incurred by the Government or any local authority in providing relief, aid and rehabilitation to the affected persons;

(g) Expenses incurred by the Government for any administrative or legal action or to cope with any harm or damage, including compensation for environmental degradation and restoration of the quality of environment;

(h) Loss to the Government or local authority arising out of, or connected with, the activity causing any damage;

(i) Claims on account of any harm, damage or destruction to the fauna including milch and draught animals and aquatic fauns;

(j) Claims on account of any harm, damage or destruction to flora including aquatic flora, crops, vegetables, trees and orchards;

(k) Claims including cost of restoration on account of any harm or damage to environment including pollution of soil, air, water, land and eco-systems;

(l) Loss and destruction of any property other than private property;

(m) Loss of business or employment or both;

(n) Any other claim arising out of, or connected with, any activity of handling of hazardous substance.

The Schedule III

[See Sections 36]

Amendment to certain enactments

Part I

Amendment to the water (Prevention and Control of Pollution) Act, 1974 (6 of 1974)

Insertion of new section 33B:

After section 33A, the following section shall be inserted, namely:–

Appeal to National Green Tribunal:

“33B. Any person aggrieved by,—

(a) an order or decision of the appellate authority under section 28, made on or after the commencement of the National Green Tribunal Act, 2010; or

(b) an order passed by the State Government under section 29, on or after the commencement of the National Green Tribunal Act, 2010; or

(c) directions issued under section 33A by a Board, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.”.

Part II

Amendments to the water (Prevention and control, of pollution) Cess Act, 1977 (36 of 1977)

Amendment of section 13:

In section 13, in sub – section (4), for the words “shall be final”, the words, figures and letters “shall, if no appeal has been filed under section 13A, be final ” shall be substituted.

Insertion of new section 13A:

After section 13, the following section shall be inserted, namely:–

Appeal to National Green Tribunal:

“13A, Any person aggrieved, by an order or decision of the appellate authority made under section 13, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.”.

Part III

Amendment to the forest (Conservation) Act, 1980 (69 of 1980).

Insertion of new section 2A:

After section 2, the following section shall be inserted, namely:–

Appeal to National Green Tribunal:

“2A, Any person aggrieved, by an order or decision of the State Government or other authority made under section 2, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.”.

Part IV

Amendment to the Air (Prevention and control of pollution) Act, 1981 (14 of 1981).

Insertion of new section 31B:

After section 31A, the following section shall be inserted, namely:–

Appeal to National Green Tribunal:

“31B, any person aggrieved by an order or decision of the Appellate Authority under section 31, made on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.”.

Part V

Amendment to the Environment (Protection) Act, 1986 (29 of 1986).

Insertion of new section 5A:

After section 5, the following section shall be inserted, namely:–

Appeal to National Green Tribunal:

“5A, Any person aggrieved by any directions issued under section 5, on or after the commencement of the National Green Tribunal Act, 2010, may file appeal to the National Green Tribunal under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.”.

Part VI

Amendment to the Biological Diversity Act, 2002. (18 of 2003).

Amendment of section 52:

In section 52, after the proviso, the following provision shall be inserted, namely:–

Provided further that nothing contained in this section shall apply on and from the commencement of the National Green Tribunal Act, 2010:

Provided also that any appeal pending before the High Court, before the commencement of the National Green Tribunal Act, 2010, shall continue to be heard and disposed of by the High Court as if the National Green Tribunal had not been established under section 3 of the National Green Tribunal Act, 2010.”.

Insertion of new section 52A:

After section 52, the following section shall be inserted, namely:–

Appeal to National Green Tribunal:

“52A, any person aggrieved by any determination of benefit sharing or order of the National Biodiversity Authority or a State Biodiversity Board under this Act, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.”.

V.K. Bhasin,

Secy. to the Govt. of India.

Negotiable Instruments Act

November 30, 2014

Chapter I – Preliminary

Section 1. Short title.

(26 of 1881)

(9th December, 1881)

An Act to define and Law relating to Promissory Notes, Bills of Exchange and cheques.

WHEREAS it is expedient to define and amend the law relating to promissory notes, bills of exchange and cheques.It is hereby enacted as follows:

This Act may be called the Negotiable Instruments Act, 1881.

Local extent, Saving of usage relating to hundis, etc., Commencement.-It extends to [the whole of India ] but nothing herein contained affects the Indian Paper Currency Act, 1871 (3 of 1871), section 2, or affects any local usage relating to any instrument in an oriental language : Provided that such usages may be excluded by any words in the body of the instrument, which indicate and intention that the legal relations of the parties thereto shall be governed by this Act; and it shall come into force on the first day of March, 1882.

1. The Act has been extended to Goa, Daman, and Diu by Regulation 12 of 1962, sec. 3 and Sch. (w.e.f. 1-12-1965) and to Dadra and Nagar Haveli by Regulation 6 of 1963, sec. and Sch. I (w.e.f. 1-11-1956).

2. Substituted by the A.O. 1950, for “all the Provinces of India”.

3. The Words “except the State of Jammu and Kashmir” omitted by Act 62 of 1956, sec. 2 and Sch. (w.e.f. 1-11-1956).

Section 2. Repeal of enactments.

[Rep. By the Amending Act, 1891 (12 of 1891), sec. 2 and Sch. I, Pt. I.

Section 3. Interpretation clause

In this Act

¹[* * *]

“Banker”: ²[“banker” includes any person acting as a banker and any post office savings bank].

³[* * *]

1. Definition of “India” omitted by Act 62 of 1956, sec. 2 and Sch. (w.e.f. 1-11-1956) .

2. Substituted by Act 37 of 1955, sec. 2 for the definition of word “banker” (w.e.f. 1-4-1956).

3. Definition of “notary public” omitted by Act 53 of 1952, sec.16 (w.e.f. 14-2-1956).

INTRODUCTION

In India, there is reason to believe that instrument to exchange were in use from early times and we find that papers representing money were introducing into the country by one of the Mohammedan sovereigns of Delhi in the early part of the fourtheenth century. The word ‘hundi’, a generic term used to denote instruments of exchange in vernacular is derived from the Sanskrit root ‘hund’ meaning ‘to collect’ and well expresses the purpose to which instruments were utilised in their origin. With the advent of British rule in India commercial activities increased to a great extent. The growing demands for money could not be met be mere supply of coins; and the instrument of credit took the function of money which they represented.

Before the enactment of the Negotiable Instrument Act, 1881, the law of negotiable instruments as prevalent in England was applied by the Courts in India when any question relating to such instruments arose between Europeans. When then parties were Hindu or Mohammedans, their personal law was held to apply. Though neither the law books of Hindu nor those of Mohammedans contain any reference to negotiable instruments as such, the customs prevailing among the merchants of the respective community were recognised by the courts and applied to the transactions among them. During the course of time there had developed in the country a strong body of usage relating to hundis, which even the Legislature could not without hardship to Indian bankers and merchants ignore. In fact, the Legislature felt the strength of such local usages and though fit to exempt them from the operation of the Act with a proviso that such usage may be excluded altogether by appropriate words. In the absence of any such customary law, the principles derived from English law were applied to the Indians as rules of equity justice and good conscience.

The history of the present Act is a long one. The Act was originally drafted in 1866 by the India Law Commission and introduced in December, 1867 in the Council and it was referred to a Select Committee. Objections were raised by the mercantile community to the numerous deviations from the English Law which it contained. The Bill had to be redrafted in 1877. After the lapse of a sufficient period for criticism by the Local Governments, the High Courts and the chambers of commerce, the Bill was revised by a Select Committee. In spite of this Bill could not reach the final stage. In 1880 by the Order of the Secretary of State, the Bill had to be referred to a new Law Commission. On the recommendation of the new Law Commission the Bill was re-drafted and again it was sent to a Select Committee which adopted most of the additions recommended by the new Law Commission. The draft thus prepared for the fourth time was introduced in the Council and was passed into law in 1881 being the Negotiable Instruments Act, 1881 (26 of 1881)

Chapter II – Of Notes, Bills And Cheques

Section 4. “Promissory note”.

A “promissory note” is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument

Section 5. “Bill of exchange”.

A “bill of exchange” is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument.

A promise or order to pay is not “conditional”, within the meaning of this section and section 4, by reason of the time for payment of the amount or any installment thereof being expressed to be on the lapse of certain period after the occurrence of a specified event which, according to the ordinary expectation of mankind, is certain to happen, although the time of its happening may be uncertain.

The sum payable may be “certain”, within the meaning of this section and section and section4, although it includes future indicated rater of change, or is according to the course of exchange, or is according to the course of exchange, and although the instrument provides that, on default of ayment of an installment, the balance unpaid shall become due. The person to whom it is clear that the direction is given or that payment is to be made may be a “certain person,” within the meaning of this section and section 4, although he is misnamed or designated by description only

Section 6. Cheque

¹[6. “Cheque”

A ”cheque” is a bill of exchange drawn on a specified banker and not expressedto be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form.

Explanation I.-For the purposes of this section, the expressions

(a) “A cheque in the electronic form” means a cheque which contains the exact mirror image of a paper cheque, and is generated, written and signed in a secure system ensuring the minimum safety standards with the use of digital signature (with or without biometrics signature) and asymmetric crypto system;

(b) “A truncated cheque” means a cheque which is truncated during the course of a clearing cycle, either by the clearing house or by the bank whether paying or receiving payment, immediately on generation of an electronic image for transmission, substituting the further physical movement of the cheque in writing.

Explanation II.-For the purposes of this section, the expression “clearing house” means the clearing house managed by the Reserve Bank of India or a clearing house recognised as such by the Reserve Bank of India.]

1. Substituted for section 6 Act No. 55 of 2002, sec. 2 for “A “cheque” is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on damand” (w.e.f. 6-2-2003).

Section 7. Drawer, drawee

The maker of a bill of exchange or Cheque is called the “drawer”; the person thereby directed to pay is called the “Drawee”.

“Drawee in case of need “: When the bill or in any endorsement thereon the name of any person is given in addition to the drawee to be resorted to in case of need such person is called a “drawee in case of need”.

“Acceptor”: After the drawee of a bill has signed his assent upon the bill, or, if there are more parts thereof than one, upon one of such part, and delivered the same, or given notice of such signing to the holder or to some person on his behalf, he is called the “acceptor”.

“Acceptor for honour”: ¹[When a bill of exchange has been noted or protested for non-acceptance or for better security], and any person accepts it supra protest for honour of the drawer or of any one of the endorser, such person is called an “acceptor for honour”.

“Payee”: The person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the “payee”.

1. Substituted by Act 2 of 1885, sec. 2 for “When acceptance is refused and the bill is protested form on-acceptance”.

Section 8. “Holder”.

The “holder” of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.

Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction.

Section 9. “Holder in due course”.

“Holder in due course” means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorse thereof, if [payable to order] before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.

1. Subs. by Act 8 of 1919, sec. 2, for “payable to, or to the order of, a payee.

Section 10. “Payment in due course”.

“Payment in due course” means payment in accordance with the apparent tenor of the instrument in good faith and without negligence to any person in possession thereof under circumstances which do not afford a reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned.

Section 11. “Inland instrument”.

A promissory note, bill of exchange or cheque drawn or made in [India] and made payable in, or drawn upon any person resident in, [Indian] shall be deemed to be an inland instrument.

1. Substituted by Act 36 of l957, sec. 3 and Sch. II, for wards” a State”.

Section 12. “Foreign instrument”.

Any such instrument not so drawn, made or made payable shall be deemed to be a foreign instrument.

Section 13. “Negotiable instrument”.

[(1) A “negotiable instrument” means a promissory note, bill of exchange or cheque payable either to order or to bearer.

Explanation (i).- A promissory note, bill of exchange or cheque is payable to order which is expressed to be so payable to a particular person, and does not contain words prohibiting transfer or indicating an intention that it shall not be transferable.

Explanation (ii).- A promissory note, bill of exchange or cheque is payable to bearer which is expressed to be so payable or on which the only or last endorsements is an endorsement is an endorsement in blank.

Explanation (iii) Where a promissory note, bill of exchange or cheque, either originally or by endorsement, is expressed to be payable to the order of a specified person, and not to him or his order, it is nevertheless payable to him or his order at his option.]

(2) A negotiable instrument may be made payable to two or more payees jointly, or it may be made payable in the alternative to one or two, or one or some of several payees.]

1. Substituted by Act 8 of 1919, sec. 3, for sub-section (1).

2. Ins. by Act 5 of 1914, sec. 2.

Section 14. Negotiation.

When a promise note, bill of exchange or cheque is transferred to any person, so as to continue the person the holder thereof, the instrument is said to be negotiated.

Section 15. Endorsement.

When the marker or holder of an negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiation, one the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paperintended to be completed as a negotiable instrument, he is said to indorse the same, and is called the endorser.

Section 16. Endorsement in blank and in full-endorsee

¹[(1)] If the endorser signs his name only, the endorsement is said to be “in blank”, and if he adds a direction to pay the amount mentioned in the instrument to, or to the order of, a specified person, the endorsement is said to be “in full”, and the person so specified is called the “endorsee” of the instrument.

²[(2) The provisions of this Act relating to a payee shall apply with the necessary modifications to an endorsee.]

1. Section 16 renumbered as sub-section. (1) by Act 5 of 1914, sec. 3.

2. Added by Act 5 of 1914, sec. 3.

Section 17. Ambiguous instruments.

Where an instrument may be construed either as a promissory note or bill of exchange, the holder may at his election treat it as either and the instrument shall be thenceforward treated accordingly.

Section 18. Where amount is stated differently in figures and words.

If the amount undertaken or ordered to be paid is stated differently in figures and in words, the amount stated in words shall be the amount undertaken or ordered to be paid.

Section 19. Instruments payable on demand.

A promissory note or bill of exchange, in which no time for payment is specified, and, a cheque, are payable on demand.

Section 20.Inchoate stamped instruments.

Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as then case may be, upon it a negotiable instrument, instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount, provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.

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

Section 21. “At sight”, “On presentment”, “After sight”.

In a promissory note or bill of exchange the expressions “at sight” and “on presentment” means on demand. The expression “after sight” means, in a promissory note, after presentment for sight, and, in a bill of exchange after acceptance, or noting for non-acceptance, or nothing for non-acceptance, or protest for non-acceptance.

Section 22. “Maturity”.

The maturity of a promissory note or bill of exchange is the date at which it falls due.

Days of grace.-Every promissory note or bill of exchange which is not expressed to be payable on demand, at sight or on presentment is at maturity on the third day after the day on which it is expressed to be payable.

Section 23. Calculating maturity of bill or note payable so many months after date or sight

In calculating the date at which a promissory note or bill of exchange, made payable at stated number of months after date or after sight, or after a certain event, is at maturity, the period stated shall be held to terminate on the day of months, which corresponds with the day on which the instrument is dated, or presented for acceptance or sight, or noted for non-acceptance, or protested for non-acceptance, or the event happens or, where the instrument is a bill of exchange made payable a stated number of months after sight and has been accepted for honour, with the day on which it was so accepted. If the month in which the period would terminate has no corresponding day, the period shall be held to terminate on the last day of such month.

Illustrations

(a) A negotiable instrument dated 29th January, 1878, is made payable at one month after date. The instrument is at maturity on the third day after the 28th February, 1878.

(b) A negotiable instrument, dated 30th August, 1878, is made payable three months after date. The instrument is at maturity on the 3rd December, 1878.

(c) A promissory note or bill of exchange, dated 31st August, 1878, is made payable three months after date. The instrument is at maturity on the 3rd December, 1878.

Section 24. Calculating maturity of bill or note payable so many days after date so sight.

In calculating the date at which a promissory note or bill of exchange made payable a certain number of days after date of after sight or after a certain event is at maturity, the day of the date, or of presentment for acceptance or sight, or of protest for non-acceptance, or on which the event happens, shall be excluded.

Section 25. When day of maturity is a holiday

When the day on which a promissory note or bill of exchange is at maturity is a public holiday, the instrument shall be deemed to be due on the next preceding business day.

Explanation: The Expression “Public Holiday” includes Sunday” ¹[***] and any other day declared by the ²[Central Government], by notification in the Official Gazette, to be a public holiday.

1. Words “New-Year’s day, Christmas day: if either of such days falls on a Sunday, the next following Monday; Good Friday;” omitted by Act 37 of 1955, sec. 3 (w.e.f. 1-4-1956).

2. Substituted by the AO 1937, for “Local Government”.

Chapter III – Parties To Notes, Bills And Cheques

Section 26. Capacity to make, etc., promissory notes, etc.

Every person capable of contracting, according to the law to which he is subject, may bind himself and be bound by the making, drawing, acceptance, endorsement, delivery and negotiation of a promissory note, bill of exchange or cheque.

Minor.- A minor may draw, indorse, deliver and negotiate such instruments to as to bind all parties except himself.

Nothing herein contained shall be deemed to empower a corporation to make, indorse or accept such instruments except in cases in which, under the law for the time being in force, they are so empowered.

Section 27. Agency.

Every person capable of binding himself or of being bound, as mentioned in section 26, may so bind himself or be bound by a duly authorised agent acting in his name.

A general authority to transact business and to receive and discharge debts does not confer upon an agent the power of accepting or indorsing bills of exchange so as to bind his principal.

An authority to draw bills of exchange does not of itself impart an authority to endorse.

Section 28. Liability of agent signing.

An agent who sign his name to a promissory note, bill of exchange or cheque without indicating thereon that he signs as agent, or that he does not intend thereby to incur personal responsibility, is liable personally on the instrument, except to those who induced him to sign upon the belief that the principal only would be held liable.

Section 29. Liability of legal representative signing.

A legal representative of a deceased person who sign his name to a promissory note, bill of exchange or cheque is liable personally thereon unless he expressly limits his liability to the extent of the assets received by him as such.

Section 30. Liability of drawer

The drawer of a bill of exchange or cheque is bound in case of dishonour by the drawee or acceptor thereof, to compensate the holder, provided due notice of dishonour has been give to, or received by, the drawer as hereinafter provided.

Section 31. Liability of drawee of cheque.

The drawee of a cheque having sufficient funds of the drawer in his hands properly applicable to the payment of such cheque must pay the cheque when duly required so to do, and, in default of such payment, must compensate the drawer for any loss or damage caused by such default.

Section 32. Liability of maker of note and acceptor of bill.

In the absence of contract to the contrary, the maker of a promissory note and the acceptor before maturity of a bill of exchange are bound to pay the amount thereof at maturity according to the apparent tenor of the note or acceptance respectively, and the acceptor of a bill of exchange at or after maturity is bound to pay the amount thereof to the holder on demand.

In default of such payment as aforesaid, such maker or acceptor is bound to compensate any party to the note or bill for any loss or damage sustained by him and caused by such default.

Section 33. Only drawee can be acceptor except in need for honour.

No person except the drawee of a bill of exchange, or all or some of several drawees, or a person named therein as a drawee in case of need, or an acceptor for honour, can bind himself by an acceptance.

Section 34. Acceptance by several drawee not partners.

Where there are several drawees of a bill of exchange who are not partners, each of them can accept if for himself, but non of the them can accept it for another without his authority.

Section 35. Liability of endorser.

In the absence of a contract to the contrary, whoever indorses and delivers a negotiable instrument before maturity, without in such endorsement, expressly excluding or making conditional his own liability, is bound thereby to every subsequent holder, in case of dishonour by the drawee, acceptor or maker, to compensate such holder for any loss or damage caused to him by such dishonor, provided due notice of dishonour has been given to, or received by, such endorser as hereinafter provided.

Every endorser after dishonour is liable as upon an instrument payable on demand.

Section 36. Liability of prior parties to holder in due course.

Every prior party to a negotiable instrument is liable thereon to a holder in due course until the instrument is duly satisfied.

Section 37. Maker, drawer and acceptor principals.

The maker of a promissory note or cheque, the drawer of bill of exchange until acceptance, and the acceptor are, in the absence of a contract to the contrary, respectively liable thereon as principal debtors, and the other parties thereto are liable thereon as sureties for the maker, drawer or acceptor, as the case may be.

Section 38. Prior party a principal in respect of each subsequent party.

As between the parties so liable as sureties, each prior party is, in the absence of a contract to the contrary. Also liable thereon as a principal debtor in respect of each subsequent party.

ILLUSTRATION

A draws a bill payable to his own order on B, who accepts, A afterwards endorses the bill to C, C to D to E. As between E and B, B is the principal debtor, and A, C and D are his sureties. As between E and A., A is the principal debtor, and C and D are his sureties. As between E and C, C is the principal debtor and D is his surety.

Section 39. Surety ship.

When the holder of an accepted bill of exchange enters into any contract with the acceptor which, under section 134 or 135 of the Indian Contract Act,1872 ( 9 of 1872), would discharge the other parties, the holder may expressly reserve his right to charge the other parties, and in such case they are not discharged.

Section 40. Discharge of endorser’s liability.

Where the holder of a negotiable instrument, without the consent of the endorser, destroys or impairs the endorser’s remedy against a prior party, the endorser is discharged from liability to the holder to the same extent as if the instrument had been paid at maturity.

Illustration

A is the holder of a bill of exchange made payable to the order of B, which contains the following endorsements in blank

First endorsement, “B”.

Second endorsement, “Peter Williams”.

Third endorsement, “Wright & Co.”.

Fourth endorsement “John Rozario”.

This bill A puts in suit against John Rozario and strikes out, without John Rosario’s consent, the endorsements by Peter Williams and Wright & Co. A is not entitled to recover any thing from John Rozario.

Section 41. Acceptor bound, although endorsement forged.

An acceptor of a bill of exchange already indorsed is not relieved from liability by reason that such endorsement is forged, if he knew or had reason to believe the endorsement to be forged when he accepted the bill.

Section 42. Acceptance of bill drawn in fictitious name.

An acceptor of a bill of exchange drawn in a fictitious name and payable to the drawer’s order is not, by reason that such name is fictitious, relieved from liability to any holder in due course claiming under an endorsement by the same hand as the drawer’s signature, and purporting to be made by the drawer.

Section 43. Negotiable instrument made, etc., without consideration.

A negotiable instrument made, drawn, accepted, indorsed, or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction. But if any such party has transferred the instrument with or without endorsement to a holder for consideration, such holder, and every subsequent holder deriving title from him, may recover the amount due on such instrument from the transferor for consideration or any prior party thereto.

Exception I.- No party for whose accommodation a negotiable instrument has been made, drawn, accepted or indorsed can, if he has paid the amount thereof, recover thereon such amount from any person who became a party to such instrument for his accommodation.

Exception II.-No party to the instrument who has induced any other party to make, draw, accept, indorse or transfer the same to him for a consideration which he has failed to pay or perform in full shall recover there in an amount exceeding the value of the consideration (if any) which he has actually paid or performed.

Section 44. Partial absence or failure of money-consideration.

When the consideration for which a person signed a promissory note, bill of exchange or cheque consisted of money, and was originally absence in part relation with such signer id entitled to receive from him is proportionally reduced.

Explanation.-The drawer of a bill of exchange stands in immediate relating with the acceptor. The maker of a promissory note, bill of exchange or cheque stands in immediate relation with the payee, and the endorser with his endorsee. Other signers may by agreement stand in immediate relation with a holder.

Illustration

A draws a bill on B for Rs. 500 payable to the order of A. B accepts the bill, but subsequently dishonours it by non-payment. A sues B on the bill. B proves that it was accepted for value as to Rs. 400, and as an accommodation to the plaintiff as to the residue. A can only recover Rs. 400.

Section 45. Partial failure of consideration not consisting of money.

Where a part of the consideration for which a person signed a promissory note, bill of exchange or cheque, though not consisting of money, is ascertainable in money without collateral enquiry, and there has been a failure of that party, the sum which a holder standing in immediate relation with such signer is entitled to receive from him is proportionally reduced.

Section 45A. Holder’s right to duplicate of lost bill

¹[45A. Holder’s right to duplicate of lost bill

Where a bill of exchange has been lost before it is overdue, the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer, if required, to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again.

If the drawer on request as aforesaid refuses to give such duplicate bill, he may be compelled to do so].

1. Inserted by Act 2 of 1885, sec. 3.

Chapter IV – Of Negotiation

Section 46. Delivery.

The making, acceptance or endorsement of a promissory note, bill of exchange or cheque is completed by delivery, actual or constructive.

As between parties standing in immediate relation; delivery to be effectual must be made by the party making accepting or indorsing the instrument, or by a person authorised by him in that behalf.

As between such parties and any holder of the instrument other than a holder in due course, it may be shown that the instrument was delivered conditionally or for a special purposes only, and not for the purpose of transferring absolutely the property therein.

A promissory note, bill of exchange or cheque payable to bearer is negotiable by the deliver thereof.

Section 47. Negotiation by delivery.

Subject to the provisions of section 58, a promissory note, bill of exchange or cheque payable to bearer is negotiable by deliver thereof.

Exception.-a promissory note, bill of exchange or cheque delivered on condition that it is not to take effect except in a certain event is not negotiable (except in the hands of a holder for value without notice of the condition) unless such event happens.

Section 48. Negotiation by endorsements.

Subject to the provisions of section 58, a promissory note, bill of exchange or cheque [payable to order], is negotiable by the holder by endorsement and delivery thereof

1. Substituted by Act 8 of 1919, sec. 4, for “payable to the order of a specified person, or to a specified person or order”.

Section 49. Conversion of endorsement in blank into endorsement in full.

The holder of a negotiable instrument indorsed in blanks may, without signing his own name, by writing above the endorser’s signature a direction to pay to any other person as endorsee, convert the endorsement in full; and the holder does not thereby incur the responsibility of an endorser.

Section 50. Effect of indorsement.

The of a negotiable instrument followed by delivery transfers to the indorsee the property therein with the right of further negotiation; but the indorsement may be express words, restrict or exclude such right, or may merely constitute the indorsee an agent to indorse the instrument, or to receive its contents for the indorser, or for some other specified person.

Section 51. Who may negotiate.

Every sole maker, drawer, payee or indorsee, or all of several joint makers, drawers, payee or indorsees, of a negotiable instrument may, if the negotiability of such instrument has not been restricted or excluded as mentioned in section 50, indorse and negotiate the same.

Explanation.-Nothing in this section enables a maker or drawer to indorse or is holder thereof, or enables a payee or indorse to indorse or negotiate an instrument, unless he is holder thereof.

Section 52. Indorser who excludes his own liability or maker it conditional.

The indorser of a negotiable instrument may, by express words in the indorsement, exclude his own liability thereon, or make such liability or the right of the indorsee to receive the amount due thereon depend upon the happening of a specified event, although such event may never happen.

Where an indorser so excludes his liability and afterwards becomes the holder of the instrument all intermediate indorsers are liable to him.

Section 53. Holder deriving title from holder in due course.

a holder of a negotiable instrument who derives title from a holder in due course has the rights thereon of that holder in due course.

Section 54. Instrument indorsed in blank.

Subject to the provisions hereinafter contained crossed cheques, a negotiable instrument indorsed in blank is payable to the bearer thereof even although originally payable to order.

Section 55. Conversion of indorsement in blank into indorsement in full.

If a negotiable instrument, after having been indorsed in blank, is indorsed in full, the amount of it cannot be claimed from the indorser in full, except by the person to whom it has been indorsed in full, or by one who derives title through such person.

56. Indorsement for part of sum due.

No writing on a negotiable instrument is valid for the purpose of negotiation of such writing purports to transfer only a part of the amount appearing to be due on the instrument; but where such amount has been partly paid a note to that effect may be indorsed on the instrument, which may then be negotiated for the balance.

Section 57. Legal representative cannot by delivery only negotiate instrument indorsed by deceased.

The legal representative of a deceased person cannot negotiate by delivery only a promissory note, bill of exchange or cheque payable to order and indorsed by the deceased but not delivered.

Section 58. Instrument obtained by unlawful means or for unlawful consideration.

When a negotiable instrument has been lost, or has been obtained form any maker, acceptor or holder thereof by means of offence or fraud, or for an unlawful consideration, no possessor or indorsee who claims through the person who found or so obtained the instrument is entitled to receive the amount due thereon from such maker, acceptor or holder, or from any party prior to such holder, unless such possessor or indorsee is, or some person through whom he claims was, a holder thereof in due course.

Section 59. Instrument acquired after dishonour or when overdue.

The holder of a negotiable instrument, who has acquired it after dishonour, whether by non-acceptance or non-payment, with notice thereof, or after maturity, has only, as against the other parties, the rights thereon of his transferor;

Accommodation note or bill.- Provided that any person who, in good faith and for consideration, becomes the holder, after maturity, of a promissory note or bill of exchange made, drawn or accepted without consideration, for the purpose of enabling some party thereto to raise money thereon, may recover the amount of the note or bill from any prior party.

Illustration

The acceptor of a bill of exchange, when he accepted it, deposited with the drawer certain goods as a collateral security for the payment of the bill, with power to the drawer to sell the goods and apply the proceeds in discharge of the bill if it were not paid at maturity. The bill not having been paid in maturity, the drawer sold the goods and retained the proceeds, but endorsed the bill to A.. A’s title is subject to the same objection as the drawer’s title.

Section 60. Instrument negotiable till payment or satisfaction.

A negotiable instrument may be negotiated (except by the maker, drawee or acceptor after maturity) until payment or satisfaction thereof by the maker, drawee or acceptor at or after maturity, but not after sect payment or satisfaction.

Chapter V – Of Presentment

Section 61. Presentment for acceptance.

A bill of exchange payable after sight must, if no time or place is specified therein for presentment, be presented to the draweee thereof for acceptance, if he can, after reasonable search, be found, by a person entitled to demand acceptance, within a reasonable time after it is drawn, and in business hours on a business day, in default of such presentment, on party thereto is liable thereon to the person making such default. If the drawee cannot, after reasonable search, be found, the bill is dishonoured.

If the bill is directed to the drawee at a particular place, it must be presented at that place, and if art the due date for presentment he cannot, after reasonable search, be found thereon, the bill is dishonoured.

[Where authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.]

1. Added by Act 2 of 1885, sec. 4.

Section 62. Presentment of promissory note for sight.

A promissory note, payable at a certain period after sight must be presented to the maker thereof for sight ( if he can after reasonable search be found ) by a person entitled to demand payment, within a reasonable time after it is made and in business hours on a business day. In default of such presentment, no party thereto is liable thereon to the person making such default.

Section 63. Drawee’s time for deliberation.

The holder must, if so required by the drawee of a bill of exchange presented to him for acceptance, allow the drawee [forty –eight ] hours (exclusive of public holidays ) to consider whether he will accept it.

1. Substituted by Act l2 of 1921, sec. 2 for “twenty-four”.

Section 63. Drawee’s time for deliberation.

1. Substituted by Act l2 of 1921, sec. 2 for “twenty-four”.

Section 64. Presentment for payment

¹[(1)] Promissory notes, bill of exchange and cheques must be presented for payment to the maker, acceptor or drawee thereof respectively, by or on behalf or the holder as hereinafter provided. In default of such presentment, the other parties thereto are not liable thereon to such holder.

²[Where authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.]

Exception:-Where a promissory note is payable on demand and is not payable at a specified place, no presentment is necessary in order to charge the maker thereof.

³[“(2) Notwithstanding anything contained in section 6, where an electronic image of a truncated cheque is presented for payment, the drawee bank is entitled to demand any further information regarding the truncated cheque from the bank holding the truncated cheque in case of any reasonable suspicion about the genuineness of the apparent tenor of instrument, and if the suspicion is that of any fraud, forgery, tampering or destruction of the instrument, it is entitled to further demand the presentment of the truncated cheque itself for verification:

Provided that the truncated cheque so demanded by the drawee bank shall be retained by it, if the payment is made accordingly.]

1. Section 64 renumbered as sub-section (1) thereof by Act 55 of 2002, sec. 3 (w.e.f. 6-2-2003).

2. Inserted by Act 2 of 1885, sec. 4.

3. Inserted by Act No. 55 of 2002. sec. 3 (w.e.f. 6-2-2003)

Section 65. Honours for presentment.

Presentment for payment must be made during the usual hours of business and, if at a banker’s, within banking hours.

Section 66. Presentment for payment of instrument payable after date or sight.

a promissory note or bill of exchange, made payable at a specified period after date or sight thereof, must be presented for payment at maturity.

Section 67. Presentment for payment of promissory note payable by instalments.

A promissory note payable by instalments must be presented for payment on the third day after the date fixed for payment of each instalment; and non-payment on such presentment has the same effect as non-payment of a note at maturity.

Section 68. Presentment for payment of instrument payable at specified place and not elsewhere.

A promissory note, bill of exchange or cheque made, drawn or accepted payable at a specified place and not elsewhere must, in order to charge any party thereto, be presented for payment at that place.

Section 69. Instrument payable at specified place.

A promissory note or bill of exchange made, drawn or accepted payable at a specified place must, in order to charge the maker or drawer thereof, be presented at the place.

Section 70.- Presentment where no exclusive place specified.

A promissory note or bill of exchange, not made payable as mentioned in section 68 and 69, must be presented for payment at the place of business (if any), or at the usual residence, of the maker, drawee or acceptor thereof, as the case may be.

Section 71. Presentment when maker, etc., has no known place of business or residence.

If the maker, drawee or acceptor of a negotiable instrument has no known place of business or fixed residence, and no place is specified in the instrument for presentment for acceptance or payment such presentment may be made to him in person wherever he can be found.

Section 72. Presentment of cheque to charge drawer.

[Subject to the provisions of section 84] a cheque must, in order to charge the drawer, be presented at the bank upon which it is drawn before the relation between the drawer and his banker has been altered to the prejudice of the drawer.

1. Inserted by Act 6 of 1897, sec. 2

Section 73. Presentment of cheque to charge any other person.

A cheque must, in order to charge any person except the drawer, be presented within a reasonable time after delivery thereof by such person.

Section 74. Presentment of instrument payable on demand.

Subject to the provisions of section 31, a negotiable instrument payable on demand must be presented for payment within a reasonable time after it is received by the holder receives it.

Section 75. Presentment by or to agent, representative of deceased, or assignee of insolvent.

Presentment for acceptance or payment may be made to the duly authorized agent of the drawee, maker or acceptor, as the case may be, or, where the drawee, maker or acceptor has died, to his legal representative, or, where he has been declared an insolvent, to his assignee.

Section 75A. Excuse for delay in presentment for acceptance or payment

¹[75A. Excuse for delay in presentment for acceptance or payment

Delay in presentment ²[for acceptance of payment] is excused if the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct or negligence. When the cause of the delay ceases to operate, presentment must be made within a reasonable time.]

1. Inserted by Act 25 of 1920, sec. 2.

2. Subs. by Act 12 of 1921, sec. 3, for “for payment”

Section 76. When presentment unnecessary.

No presentment for payment is necessary, and the instrument is dishonoured at the due date for presentment, in any of the following cases:

(a) if the maker, drawee or acceptor intentionally prevents the presentment of the instrument, or if the instrument being payable at his place of business, he closes such place on a business day during the usual business hours, or if the instrument being payable at some other specified place, neither he nor any person authorized to pay it attends at such place during the usual business hours, or if the instrument not being payable at any specified place, he cannot after due search be found;

(b) as against any party sought to be charged therewith, if he has engaged to pay notwithstanding non-presentment ;

(c) as against any party if, after maturity, with knowledge that the instrument has not been presented.- he makes a part payment on account of the amount due on the instrument, or promises to pay the amount due therein whole or in part, or otherwise waives his right to take advantage of any default in presentment for payment;

(d) as against the drawer, if the drawer could not suffer damage from the want of such presentment.

Section 77. Liability of banker for negligently dealing with bill presented for payment.

When a bill of exchange, accepted payable at a specified bank, has been duly presented there for payment and dishonoured, if the banker so negligently or improperly keeps, deals with or delivers back such bill as to cause loss to the holder, he must compensate the holder for such loss.

Chapter VI – Of Payment And Interest

Section 78. To whom payment should be made.

Subject to the provisions of section82, clause (c), payment of the amount due on a promissory note, bill of exchange or cheque must, in order to discharge the maker or acceptor, be made to the holder of the instrument.

Section 79. Interest when rate specified.

When interest at a specified rate is expressly made payable on a promissory note or bill of exchange , interest shall be calculated at the rate specified, on the amount of the principal money due thereon, from the date of the instrument, until tender or realization of such amount, or until such date after the institution of a suit to recover such amount as the Court directs.

Section 80. Interest when no rate specified.

When no rate of interest is specified in the instrument, interest on the amount due thereon shall, [notwithstanding any agreement relating to interest between any parties to the instrument], be calculated at the rate of [eighteen per centum] per annum, from the date at which the same ought to have been paid by the party charged, until tender or realization of the amount due thereon, or until such date after the institution of a suit to recover such amount as the Court directs.

Explanation.- When the party charged is the endorser of an instrument dishonoured by non-payment, he his liable to pay interest only form the time that he receives notice of the dishonour.

1. Substituted by Act 30, of 1926, sec. 2 for “except in case provided for by the Code of Civil Procedure, section 532″.

2. Substituted by Act 66 of 1988, sec. 2 for ‘six per centum’ (w.e.f. 30-12-1988).

Section 81. Delivery of instrument on payment or indemnity in case of loss

¹[(1)] Any person liable to pay, and called upon by the holder thereof to pay, the amount due on a promissory note, but of exchange or cheque is before payment entitled to have it shown, is on payment entitled to have it delivered up to him, or, if the instrument is lost or cannot be produced, to be indemnified against any further claim thereon against him.

²[(2) Where the cheque is an electronic image of a truncated cheque, even after the payment the banker who received the payment shall be entitled to retain the truncated cheque.

(3) A certificate issued on the foot of the printout of the electronic image of a truncated cheque by the banker who paid the instrument, shall be prima facie proof of such payment.]

1. Section 81 renumbered as sub-section (1) thereof by Act 55of 2002, sec. 4 (w.e.f. 6-2-2003).

2. Inserted by Act 55 of 2002, sec. 4 (w.e.f. 6-2-2003).

Chapter VII – Of Discharge From Liability On Notes, Bills And Cheques

Section 82. Discharge from liability.

The maker, acceptor or indorser respectively of a negotiable instrument is discharged from liability thereon

(a) BY cancellation.-to a holder thereof who cancels such acceptor’s or indorser’s name with intent to discharge him, and to all parties claiming under such holder;

(b) By release- to a holder thereof who otherwise discharges such maker, acceptor or indorser, and to all parties deriving title under such holder after notice of such discharge;

(c) By payment- to all parties thereto, if the instrument is payable to bearer, or has been indorsed in blank, and such maker, acceptor or indorser makes payment in due course of the amount due thereon.

Section 83. Discharge by allowing drawee more than forty-eight hours to accept.

If the holder of a bill of exchange allows the drawee more than [forty eight] hours, exclusive of public holidays, to consider whether he will accept the same, all previous parties not consenting to such allowance are thereby discharged from liability to such holder.

1. Substituted by Act 12 of 1921, sec. 2 for “twenty-four”.

Section 84. When cheque not duly presented any drawer damaged thereby.

(1) Where a cheque is not presented for payment within a reasonable time of its issue, and the drawer or person on whose account it is drawn had the right, at the time when presentment ought to have been made, as between himself and the banker, to have the cheque paid and suffers actual damage through the delay, he is discharged to the extent of such damage, that is to say, to the extent to which such drawer or person is a creditor of the banker to a large amount than he would have been if such cheque had been paid.

(2) In determining what is a reasonable time, regard shall be had to the nature of the instrument, the usage of trade and of bankers, and the facts of the particular case.

(3) The holder of the cheque as to which such drawer or person is so discharged shall be a creditor, in lieu of such drawer or person, of such banker to the extent of such discharge and entitled to recover the amount from him.

Illustrations

(a) A draws a cheque for Rs. 1,000, and, when the cheque ought to be presented, has funds at the bank to meet it. The bank fails before the cheque is presented. The drawer is discharged, but the holder can prove against the bank for the amount of the cheque.

(b) A draws a cheque at Umballa on a bank in Calcutta. The bank fails before the cheque could be presented in ordinary course. A is not discharged, for he has not suffered actual damage through any delay in presenting the cheque.

1. Substituted by Act 6 of 1897, sec. 3 for section 84.

Section 85. Cheque payable to order

¹[(1)] Where a cheque payable to order purports to be endorsed by or on behalf of he payee, the drawee is discharged by payment in sue course.

²[(2) Where a cheque is originally expressed to be payable to be payable to bearer, the drawee is discharged by payment in due course to the bearer thereof, notwithstanding any endorsement whether in full or in blank appearing thereon, and notwithstanding that any such endorsement purports to restrict of exclude further negotiation.]

1. Section 85 re-numbered as sub-section. (1) thereof by Act 17 of 1934, sec. 2.

2. Inserted by Act 17 of 1934, sec. 2.

Section 85A. Drafts drawn by one branch of a bank on another payable to order

¹[85A. Drafts drawn by one branch of a bank on another payable to order

Where any draft, that is an order to pay money, drawn by one office of a bank upon another office of the same bank for a sum of money payable to order on demand, purports to be endorsed by or behalf of the payee, the bank is discharged by payment in due course.]

1. Inserted by Act 25 of 1930, sec. 2.

Section 86. Parties not consenting discharged by qualified or limited acceptance.

If the holder of a bill of exchange acquiesces in qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substituted a different place or time for payment or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent is not obtained to such acceptance are discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance.

Explanation.-An acceptance is qualified

(a) where it is conditional, declaring the payment to be dependent or the happening of an event therein stated;

(b) where it undertakes the payment of part only of the sum ordered to be paid;

(c) where, no place of payment being specified on the order, it undertakes the payment at a specified place, and not otherwise or elsewhere, or where a place of payment being specified in the order, it undertakes the payment at some other place and not otherwise or elsewhere;

(d) where it undertakes the payment at a time other than that at which under the order or would be legally due.

Section 87. Affect of material alteration.

Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;

Alteration by endorsee:- And any such alteration, if made by an endorsee, discharges his endorser from all liability to him in respect of the consideration thereof.

The provisions of this section are subject to those of sections 20, 49, 86 and 125.

Section 88. Acceptor or endorser bound notwithstanding previous alteration.

An acceptor or endorser of a negotiable instrument is bound by the acceptance or endorsement notwithstanding any previous alteration of the instrument.

Section 89. Payment of instrument on which alteration is not apparent

¹[(1)] Where a promissory note, bill of exchange or cheque has been materially altered but does not appear to have been so altered, or where a cheque is presented for payment which does not at the time of presentation appear to be crossed or to have had a crossing which has been obliterated, payment thereof by a person or banker liable to pay an paying the same according to the apparent tenor thereof at the time of payment and otherwise in due course, shall discharge such person or banker liable to pay and paying the same according to the apparent tenor thereof at the time of payment and otherwise in due course, shall discharge such a person or banker from all liability thereon, and such payment shall not be questioned by reasons of the instrument having been altered, or the cheque crossed.

²[(2) Where the cheque is an electronic image of a truncated cheque, any difference in apparent tenor of such electronic image and the truncated cheque shall be a material alteration and it shall be the duty of the bank or the clearing house, as the case may be, to ensure the exactness of the apparent tenor of electronic image of the truncated cheque while truncating and transmitting the image.

(3) Any bank or a clearing house which receives a transmitted electronic image of a truncated cheque, shall verify from the party who transmitted the image to it, that the image so transmitted to it and received by it, is exactly the same.]

1. Section 89 re-numbered as sub-section (1) thereof by Act 55 of 2002, sec. 5 (w.e.f. 6-2-2003).

2. Ins. by Act 55 of 2002, sec. 5 (w.e.f. 6-2-2003).

Section 90. Extinguishments of rights of action on bill in acceptor’s hands.

If a bill of exchange which has been negotiated is, at or after maturity, held by the acceptor in his own right, all rights of action thereon are extinguished.

Chapter VIII – Of Notice Of Dishonor

Section 91. Dishonor by non- acceptance.

A bill of exchange is said to be dishonored by non-acceptance when the drawee, or one of several drawee not being partners, makes default in acceptance upon being duly required to accept the bill, or where presentment is excused and the bill is not accepted. Where the drawee is incompetent to contract, or the acceptance is qualified the bill may be treated as dishonored

Section 92. Dishonors by non-payment.

A promissory note, bill of exchange or cheque is said to be dishonored by non-payment when the maker of the note, acceptor of the bill or drawee of the cheque makes default in payment upon being duly required to pay the same.

Section 93. By and to whom notice should be given.

When a promissory note, bill of exchange or cheque is dishonored by non-payment, the holder thereof, or some party thereto who remains liable thereon, must given notice that the instrument has been so dishonored to all other parties whom the holder seeks to make severally liable thereon, and to some one of several partied whom he seeks to make jointly liable thereon.

Nothing in this section renders it necessary to give notice to the maker of the dishonored promissory note, or acceptor of the dishonored bill of exchange or cheque.

Section 94. Mode in which notice may be given.

Notice of dishonor may be given to a duly authorized agent of the person to whom it is required to be given, or , where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee, maybe oral or written, may, if written, be sent by post, and may be in any form, but it must inform the party to whom it is given, either in express terms or by reasonable intendment that the instrument has been dishonored, and in what way, and that he will be held liable thereon, and it must be given within a reasonable time after dishonor, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended.

IF the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid.

Section 95. Party receiving must transmit notice of dishonor.

Any party receiving notice of dishonor must in order to render any prior party liable to himself, give notice of dishonor to such party within a reasonable time , unless such party otherwise receives due notice as provided by section 93.

Section 96. Agent for presentment.

When the instrument is deposited with an agent for presentment, the agent is entitled to the same time to give notice to his principal as if he were the holder giving notice of dishonor, and the principal is entitled to a further like period to give notice of dishonor.

Section 97. When party to whom notice given is dead.

When the party to whom notice of dishonor is dispatched is dead, but the party dispatching the notice is ignorant of his death, the notice is sufficient.

Section 98. When notice of dishonor is unnecessary.

Notice of dishonor is necessary

(a) when it is dispensed with by the party entitled thereto

(b) in order to charge the drawer, when he has countermanded payment

(d) when the party entitled to notice cannot after due search be found, or the party bound to give notice is, for any other reason, unable without any fault of his own to give it.

(e) to charge the drawers, when the acceptors is also a drawer.

(f) in the case of a promissory note which is not negotiable.

(g) when the party entitled to notice, knowing the facts, promise unconditionally to pay the amount due on the instrument.

Chapter IX – No Noting And Protest

Section 99. Noting.

When a promissory note or bill of exchange has been dishonored non-acceptance or non-payment, the holder may cause such dishonor to be noted by a notary public upon the instrument, or upon a paper attached thereto, or partly upon each.

Such note must be made within a reasonable time after dishonor, and must specify the date of dishonor, the reason, if any, assigned for such dishonor, or, if the instrument has not been expressly dishonored, the reason why the holder treats it as dishonored, and the notary’s charges.

Section 100. Protest.

When a promissory note or bill of exchange has been dishonored by non-acceptance or non-payment, the holder may, within a reasonable time, cause such dishonor to be noted and certified by a notary public. Such dishonor to be noted and certified by a notary public. Such certificate is called a protest.

Protest for bitter security.- When the acceptor of a bill of exchange has become insolvent, or his credit has been publicly impeached, before the maturity of the bill, the holder may, within a reasonable time, cause a notary public to demand better security of the acceptor, and on its being refused may, with a reasonable time, cause such facts to be noted and certified as aforesaid. Such certificate is called a protest for better security.

Section 101. Contents of protest.

A protest under section 100mmust contain

(a) either the instrument itself, or a literal transcript of the instrument and of everything written or printed thereupon;

(b) the name of the person for whom and against whom the instrument has been protested;

(c) a statement that payment or acceptance, or better security, as the case may be, has been demanded of such person by the notary public; the terms of his answer, if any, or a statement that he could not be found;

(d) when the note or bill has been dishonored, the place and time of dishonor, and, when better security has been refused, the place and time of refusal;

(e) the subscription of the notary public making the protest;

(f) in the event of an acceptance for honor or of a payment for honor, the name of the person by whom, of the person whom, and the manner in which, such acceptance or payment was offered and effected.

¹[A notary public may make the demand mentioned in clause (c) of this section either person or by his clerk or, were authorised by agreement or usage, by registered letter.]

1. Added by Act 2 of 1885, sec. 5.

Section 102. Notice of protest.

When a promissory note or bill of exchange is required by law to be protested; notice of such protest must be given instead of notice of dishonor, in the same manner and subject to the same conditions; but the notice may be given by the notary public who makes the protest.

Section 103. Protest of non-payment after dishonor by non-acceptance.

All bills of exchange drawn payable at some other place than the place mentioned as the residence of the drawee, and which are dishonored by non-acceptance, may, without further presentment to the drawee, be protested for non-payment, in the place specified for payment, unless paid before or at maturity.

Section 104. Protest of foreign bills.

Foreign bills of exchange must be protested for dishonor when such protest is required by the law of the place where they are drawn.

Section 104A. When noting equivalent to protest

¹[104A.When noting equivalent to protest

For the purpose of this Act, where a bill of notes is required to be protested within a specified time or before some further proceeding is taken is it sufficient that the bill has been noted for protest before the expiration of the specified time or the taking of the proceeding; and the formal protest may be extended at any time thereafter as of the date of the noting.]

1. Inserted by Act 2 of 1885, sec. 6.

Chapter X – Of Reasonable Time

Section 105. Reasonable time.

In determining what is a reasonable time for presentment for acceptance or payment, for giving notice of dishonor and for noting, regard shall be had to the nature of the instrument and the usual course of dealing with respect to similar instruments; and., in calculating such time, public holidays shall be excluded.

Section 106. Reasonable time of giving notice of dishonor.

If the holder and the party to whom notice of dishonor is give carry on business or live (as the case may be) in different places, such notice is given within a reasonable time if it is dispatched by the next post or on the day next after the day of dishonor.

If the said parties carry on business or live in the same place, such notice is given within a reasonable time if it is dispatched in time to reach its destination on the day next after the day of dishonor.

Section 107. Reasonable time for transmitting such notice.

A party receiving notice of dishonor, who seeks to enforce his right against a prior party, transmits the notice within a reasonable time if he transmits it within the same time after its receipt as he would have had to give notice if he had been the holder.

Chapter XI – Of Acceptance And Payment For Honor And Reference In Case Of Need

Section 108. Acceptance for honour

When a bill of exchange has been noted or protested for non-acceptance or for better security, any person not being a party already liable thereon may, with the consent of the holder, by writing on the bill accept the same for the honour of any party thereto.

¹[* * *].

1. Second sentence omitted by Act 2 of 1985, sec. 7.

Section 109. How acceptance for honour must be made

A person desiring to accept for honour must, ¹[by writing on the bill under his hand], declare that he accepts under protest the protested bill for the honour of the drawer or of a particular endorser whom he names, or generally for honour ²[* * *].

1. Substituted by Act 2 of 1885, section. 8, for “in the presence of a notary public, subscribe the bill with his own hand, and”.

2. The Words “and such declaration must be recorded by the notary in his register” omitted by Act 2 of 1885, section 8.

Section 110. Acceptance not specifying for whose honor it is made.

Where the acceptance does not express for whose honor it is made for the honor of the drawer.

Section 111. Liability of acceptor for honor.

An acceptor for honor binds himself to all parties subsequent to the party for whose honor he accepts to pay the amount of the bill if the drawee do not; and such party and all prior parties are liable in their respective capacities to compensate the acceptor for honor for all loss or damage sustained by him in consequence of such acceptance.

But an acceptor for honor is not liable to the holder of the bill unless it is presented, or (in case the address given by such acceptor on the bill is a place other than the place where the bill is made payable) forwarded for presentment, not later than the day next after the day of its maturity.

Section 112. When acceptor for honor may be charged.

An acceptor for honor cannot be charged unless the bill has at its maturity been presented to the drawee for payment, and has been dishonored by him, and noted or protested for such dishonor.

Section 113. Payment for honour

When a bill of exchange has been noted or protested for non-payment, any person may pay the same for the honour of any part liable to pay the same; provided that the person so paying ¹[or his agent in that behalf] has previously declared before a notary public the party for whose honour he pays, and that such declaration has been recorded by such notary public.

1. Inserted by Act 2 of 1885, Section 9.

Section 114. Right of payer for honor.

Any person so paying is entitled to all the rights in respect of the bill, of the holder at the time of such payment, and may recover from the party for whose honor he pays all sums so paid, with interest thereon and with all expenses properly incurred in making such payment.

Section 115. Drawee in case of need

Where a drawee in case of need is named in a bill of exchange, or in any endorsement thereon, the bill is not dishonored until it has been dishonored by such drawee.

Section 116. Acceptance and payment without protest

A drawee in case of need may accept and pay the bill of exchange without previous protest.

Chapter XII – Of Compensation

Section 117. Rules as to compensation

The compensation payable in case of dishonour of promissory note, bill of exchange or cheque, by any party liable to the holder or any indorsee, shall ¹[***] be determined by the following rules:

(a) The holder is entitled to the amount due upon the instrument together with the expense property incurred in presenting, noting and protesting it;

(b) When the person charged resides at a place different from that at which the instrument was payable, the holder is entitled to receive such sum at the current rate of exchange between the two places;

(c) An endorser who, being liable, has paid the amount due on the same is entitled to the amount so paid with interest at ²[eighteen per centum] per annum from the date of payment until tender or realisation thereof, together with all expenses caused by the dishonour and payment.

(d) When the person charged and such endorser resides at different places, the endorser is entitled to receive such sum at the current rate of exchange between the two places;

(e) The party entitled to compensation may draw a bill upon the party, liable to compensate him, payable at sight or on demand, for the amount due to him, together with all expenses properly incurred by him. Such bill must be accompanied by the instrument dishonoured and the protest thereof (if any). If such bill is dishonoured , the party dishonoring the same is liable to make compensation thereof in the same manner as in the case of the original bill.

1. The words figure and brackets “(except in cases provided for by the Code of Civil Procedure’ sections 532)” omitted by Act 30 of 1926, section 3.

2. Substituted by Act 66 of 1988, section 3 for ‘six per centum’ (w.e.f. 30-12-1988).

Chapter XIII – Special Rules Of Evidence

Section 118. Presumptions as to negotiable instruments of consideration

Until the contrary is proved, the following presumptions shall be made:

(a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

(b) as to date- that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance- that every accepted bill of exchange was accepted within a reasonable time after its date its date and before its maturity;

(d) as to time of transfer.- that every transfer of a negotiable instrument was made before its maturity;

(e) as to order of endorsements – that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that holder is a holder in due course – that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been contained from its lawful owner, or form any person in lawful custody thereof, by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.

Section 119. Presumption on proof of protest

In a suit upon an instrument which has been dishonored, the Court shall, on proof of the protest, presume the fact of dishonor, unless and until such fact is disproved.

Section 120. Estoppels against denying original validity of instrument

No maker of a promissory note, and no drawer of a bill of exchange or cheque, and no acceptor of a bill of exchange for the honor of the drawer shall, on proof of the protest, presume the fact of dishonor, unless and until validity of the instrument as originally made or drawn.

Section 121. Estoppel against denying capacity of payee to endorse

No maker of a promissory note and no acceptor of a bill of exchange or cheque, and no acceptor of a bill of exchange ¹[payable to order] shall, in suit thereon by a holder in due course, be permitted to deny the payee’s capacity, at the rate or the note or bill, to endorse the same.

1. Substituted by Act 8 of 1919, sec. 5 for “payable to, or to the order of, a specified person”.

Section 122. Estoppels against denying signature or capacity of prior party

No. endorser of a negotiable instrument shall, in a suit thereon by a subsequent holder, be permitted to deny the signature or capacity to contract to contract of any prior party to the instrument.

Chapter XIV – Of Crossed Cheques

Section 123. Cheque crossed generally

Where a cheque bears across its face an addition of the words “and company” or any abbreviation thereof, between two parallel transverse lines, or of two parallel transverse lines simply, either with or without the words “not negotiable”. That addition shall be deemed a crossing, and the cheque shall be deemed to be crossed generally.

Section 124. Cheque crossed specially

Where a cheque bears across its face an addition of the name of a banker, either with or without the words “not negotiable”, that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed specially, and to be crossed to that banker.

Section 125. Crossing after issue

Where a cheque is uncrossed, the holder may cross it generally or specially.

Where a cheque is crossed generally, the holder may cross it specially.

Where a cheque is crossed generally or specially, the holder may add the words “not negotiable”.

Where a cheque is crossed specially, the banker to whom it is crossed may again cross it specially to another banker, his agent, for collection.

Section 126. Payment of cheque crossed generally

Where a cheque is crossed generally, the banker on whom it is drawn shall not pay it otherwise than to a banker.

Payment of cheque crossed specially.- Where a cheque is crossed specially, the banker on whom it is drawn shall not pay it otherwise than to the banker to whom it is crossed, or his agent for collection.

Section 127. Payment of cheque crossed specially more than once

Where a cheque is crossed specially to more than one banker, except when crossed to an agent for the purpose of collection, the banker on whom it is drawn shall refuse payment thereof.

Section 128. Payment in due course of crossed cheque

Where the banker on whom a crossed cheque is drawn has paid the same in due course, the banker paying the cheque, and (in case such cheque has come to the hands of the payee) the drawer thereof, shall respectively be entitled to the same rights, and be placed in the same position in all respects, as they would respectively be entitled to and placed in if the amount of the cheque had been paid to and received by the true owner thereof.

Section 129. Payment of cheque crossed specially more than once

Any banker paying a cheque crossed generally otherwise than to a banker or a cheque crossed specially otherwise than to the banker to whom the same is crossed, or his agent for collection, being a banker, shall be liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid.

Section 130. Cheque bearing “not negotiable”

A person taking a cheque crossed generally or specially, bearing in either case the words “not negotiable”, shall not have and shall not be capable of giving, a better title to the cheque than that which the person from whom he took it had.

Section 131. Non-liability of banker receiving payment of cheque

A banker who has in good faith and without negligence received payment for a customer of a cheque crossed generally or specially to himself shall not, in case the title to the cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such payment.

¹[²[Explanation I]:- A banker receives payment of a crossed cheque for a crossed cheque for a customer within the meaning of his section notwithstanding that he credits his customer’s accounts with the amount of the cheque before receiving payment thereof].

³[“Explanation II:- It shall be the duty of the banker who receives payment based on an electronic image of a truncated cheque held with him, to verify the prima facie genuineness of the cheque to be truncated and any fraud, forgery or tampering apparent on the face of the instrument that can be verified with due diligence and ordinary care.

1. Added by Act 18 of 1922, sec. 2.

2. Explanation re-numbered as Explanation I thereof by Act 55 of 2002, sec. 6 (w.e.f. 6-2-2003).

3. Inserted by Act 55 of 2002, sec. 6 (w.e.f. 6-2-2003).

Section 131A. Application of chapter to drafts

¹[131A.Application of chapter to drafts

The provisions of this chapter shall apply to any draft, as defined in section 85A, as if the draft were a cheque.

1. Added by Act 33 of 1947, section 2.

Chapter XV – Of Bills In Sets

Section 132. Set of bills

Bills of exchange may be drawn in parts, each part being numbered and containing a provision that it shall continue payable only so long as the others remain unpaid. All the parts together make a set; but the whole set constitutes only one bill, and is extinguished when one of the parts if a separate bill, would be extinguished.

Exception:- When a person accepts or indorses different parts of the bill in favour of different persons, he hand the subsequent endorsers of each are liable on such part as if it were a separate bill.

Section 133. Holder of first acquired part entitled to all

As between holders in due course of different parts of the same set, he who first acquired title to his part is entitled to the other parts and the money represented by the bill.

Chapter XVI – Of International Law

Section 134. Law governing liability of maker, acceptor or endorser of foreign instrument

In the absence of a contract to the contrary, the liability of the maker of drawer of a foreign promissory note, bill of exchange or cheque is regulated in all essential matters by the law of the place where he made the instrument, and the respective liabilities of the acceptor and endorser by the law of the place where the instrument is made payable.

Illustration

A bill of exchange was drawn by A California where the rate of interest is 25 percent, and accepted by B, payable in Washington where the rate of interest is 6 per cent. The bill is endorsed in ¹[India], and is dishonoured. An action on the bill is brought against B in ¹[India]. He is liable to pay interest at the rate of 6 per cent, only; but if A is charged as drawer, A is liable to pay interest at the rate of 25 percent.

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

Section 135. Law of place of payment governs dishonours

Where a promissory note, bill of exchange or cheque is made -payable in a different place from that in which it is made or endorsed, the law of the place, where it is made payable determines what constitutes dishonour and what notice of dishonour is sufficient.

Illustration

A bill of exchange drawn and endorsed in ¹[India], but accepted payable in France, is dishonoured. The endorsee cause it to be protested for such dishonour, and gives notice thereof in accordance with the law of France through not in accordance with the rules herein contained in respect of bills which are no! foreign. The notice is sufficient.

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

Section 136. Instrument made, etc. out of India, but in accordance with the law of India

If a negotiable instrument is made, drawn accepted or endorsed 1[outside India], but in accordance with the ¹[law of India] the circumstance that any agreement evidenced by such instrument is invalid according to the law of the country wherein it was entered into does not invalidate any subsequent acceptance or endorsement made thereon ¹[within India]

1. The words “out of British India” were successively amended by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, sec. 3 and Sch to read abobe.

Section 137. Presumption as to foreign law

The law of any foreign country ¹[* * *] regarding promissory note, bills of exchange and cheques shall be presumed to be the same as that of ²[India], unless and until the contrary is proved.

1. The words “or the State Jammu and Kashmir” omitted by Act 62 of 1956, sec. 2 and Sch.

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

Chapter XVII – Of Penalties In Case Of Dishonor Of Certain Cheque For Insufficiency Of Funds In The Accounts

Section 138. Dishonour of cheque for insufficiency, etc., of funds in the accounts

¹[CHAPTER XVII]

OF PENALTIES IN CASE OF DISHONOUR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for ²[“a term which may extend to two year”], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless

(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

(b) The payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, ³[“within thirty days”] of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and

(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation: For the purpose of this section, “debt or other liability” means a legally enforceable debt or other liability].

OBJECTS AND REASONS OF AMENDING ACT OF 2002

The Negotiable Instruments Act, 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for penalties in case of dishonour of cheques due fo insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the Negotiable Instruments Act, 1881, namely, sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques, Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act- (Para 1)

Keeping in view the recommendations of the Standing Committee on Finance and other representations, it has been decided to bring out, inter alia, the following amendments in the Negotiable Instruments, Act, 1881, namely:

(i) to increase the punishment as prescribed under the Act from one year to two years;

(ii) to increase the period for issue of notice by the payee to the drawer from 15 days to 30 days; (Para 4)

1. Inserted by Act 66 of 1988, , sec. 4 (w.e.f. 1-4-1989). Earlier Chapter XVII relating to ” Notaries Public” Inserted by Act 2 of 1985, sec. 10, was replaced by the Notaries Act, 1952 (53 of 1952), sec. 16 (w.e.f. 14-2-1956).

2. Substituted by Act 55 0f 2002, sec. 7 for “a term which may extended to one year” (w.e.f. 6-2-2003).

3. Substituted by Act 55 of 2002, sec. 7, for “within Fifteen days” (w.e.f. 6-2-2003).

Section 139. Presumption in favour of holder

¹[Presumption in favour of holder

It shall be presumed, unless the Contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability].

1. Ins. by Act 66 of 1988, sec. 4 (w.e.f. 1-4-1989).

Section 140. Defence which may not be allowed in any prosecution under section 138

¹[Defence which may not be allowed in any prosecution under section 138 It shall not be a defence in a prosecution of an offence under section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section].

1. Ins. by Act 66 of 1988, sec. 4 (w.e.f. 1-4-1989)

Section 141- Offences by companies.

¹[Offences by companies.

(1) If the person committing an offence under section 138 is 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 proceeded against and punished accordingly];

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

²[“Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.]

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attribute to, any neglect on the part of, any director, Manager, secretary, or other office of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation: For the purpose of this section.

(a) “Company” means any body corporate and includes a firm or other association of individuals; and

(b) “Director”, in relating to a firm, means a partner in the firm.

OBJECTS AND REASONS OF AMENDING ACT OF 2002

The existing provisions in the Negotiable Instruments Act, 1881, namely, sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act

(viii) to exempt those directors from prosecution under section 141 of the Act who are nominated as directors of a company by virtue of their holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government, or the State Government, as the case may be;

1. Ins by Act 66 of 1988, sec. 4 (w.e.f. 1-4-1989).

2. Ins. by Act 55 of 2002, sec. 8 (w.e.f. 6-2-2003).

Section 142. Cognizance of offences

¹[Cognizance of offences

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).

(a) No court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) Such complaint is made within one month of the date on which the cause of action arises under clause (C) of the proviso to section 138:

²[“Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.]

(c) No court inferior to that of a Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138].

OBJECTS AND REASONS OF AMENDING ACT OF 2002

(iii) to provided discretion to the Court to waive the period of one month, which has been prescribed for taking cognizance of case under the Act;

1. Ins. by Act 66 of 1988, sec. 4 (w.e.f. 1-4-1989).

2. Ins. by Act 55 of 2002, sec. 9 (w.e.f. 6-2-2003).

Section 143. Power of Court to try cases summarily.

¹[143. Power of Court to try cases summarily.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:

Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.

(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.

(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.]

1. Section 143 to 147 ins. by Act 55 of 2002, sec. 10 (w.e.f. 6-2-2003).

Section 144. Mode of service of summons.

¹[Mode of service of summons.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974) and for the purposes of this Chapter, a Magistrate issuing a summons to an accused or a witness may direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works for gain, by speed post or by such courier services as are approved by a Court of Session.

(2) Where an acknowledgment purporting to be signed by the accused or the witness or an endorsement purported to be made by any person authorised by the postal department or the courier services that the accused or the witness refused to take delivery of summons has been received, the Court issuing the summons may declare that the summons has been duly served.

1. Section 143 to 147 ins. by Act 55 of 2002, sec. 10 (w.e.f. 6-2-2003).

Section 145. Evidence on affidavit.

¹[Evidence on affidavit.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974.) the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.]

1. Section 143 to 147 ins. by Act 55 of 2002, sec. 10 (w.e.f. 6-2-2003).

Section 146. Bank’s slip prima facie evidence of certain facts.

¹[146. Bank’s slip prima facie evidence of certain facts.

The Court shall, in respect of every proceeding under this Chapter, on production of bank’s slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.]

1. Section 143 to 147 ins. by Act 55 of 2002, sec. 10 (w.e.f. 6-2-2003).

Section 147. Offences to be compoundable.

¹[147. Offences to be compoundable.

Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974.) every offence punishable under this Act shall be compoundable.]

OBJECTS AND REASONS OF AMENDING ACT OF 2002

(iv) to prescribe procedure for dispensing with preliminary evidence of the complainant

(v) to prescribe procedure for servicing of summons to the accused or withness by the Court through speed post or empanelled private couriers;

(vi) to provide summary trial of the cases under the Act with a view to speeding up disposal of cases;

(vii) to make the offences under the Act compoundable;

1. Section 143 to 147 ins. by Act 55 of 2002, sec. 10 (w.e.f. 6-2-2003).

SCH1. Schedule

Enactment repealed

[Rep. by Amending Act, 1891 (12 of 1891), sec. 2 and Sch. I.]

INTRODUCTION

Transfer of Property Act

November 30, 2014

Section 1. Short title

This Act may be called the Transfer of Property Act, 1882.

Commencement.—It shall come into force on the first day of July, 1882.

Extent.—¹[It extends² in the first instance to the whole of India except ³[the territories which, immediately before the 1st November, 1956, were comprised in Part B States or in the States of] Bombay, Punjab and Delhi.]

⁴[But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the ⁵[said territories] by the ⁶[State Government] concerned.]

⁷[And any ⁶[State Government] may ⁸[***] from time to time, by notification in the Official Gazette, exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:—

Section 54, paragraph 2 and sections 3, 59, 107 and 123.]

⁹[Notwithstanding anything in the foregoing part of this section, section 54, paragraphs 2 and 3, and sections 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian Registration Act, ¹⁰[1908], (16 of 1908), under the power conferred by the first section of that Act or otherwise.]

————————————-

1. Subs. by the A.O. 1950, for the original third paragraph.

2. The application of this Act was barred in the Naga Hills District, including the Mokokchang Sub-Division, the Dibrugarh Frontier Tract, the North Cachar Hills, the Garo Hills, the Khasea and Jaintia Hills and the Mikir Hills Tract, by notification under sec. 2 of the Assam Frontier Tracts Regulation, 1880 (2 of 1880).

The Act has been declared to be in force in Panth Piploda by the Panth Piploda Laws Regulation, 1929 (1 of 1929), sec. 2, and continued in force, with modifications, in the territory transferred to Delhi Province by the Delhi Laws Act, 1915 (7 of 1915), sec. 3 and Sch. III. It has also been partially extended to Berar by the Berar Laws Act, 1941 (4 of 1941).

The Act has been extended with effect from 1st January, 1893, to the whole of the territories, other than the Scheduled Districts, under the administration of the Govt. of Bombay. Sections 54, 107 and 123 have been extended from 6th May, 1925 to all Municipalities in the Punjab and to all notified areas declared and notified under sec. 241 of the Punjab Municipal Act, 1911 (Pun. Act 3 of 1911), see Punjab Gazette, Extra., 1925, p. 27.

These sections and section 129 have been extended to certain areas in Delhi Province, see Notifications No. 198/38-III, dated 30th May, 1939, Gazette of India, 1939, Pt. I, p. 918, and No. 61/40-Judl., dated 16th November, 1940, Gazette of India, 1940, Pt. I, p. 1639, respectively.

The Act has been extended to Manipur by the Union Territories (Laws) Amendment Act, 1956 (68 of 1956).

It has been rep. as to Government Grants by the Government Grants Act, 1895 (15 of 1895) and rep. or modified to the extent necessary to give effect to the provisions of the Madras City Tenants Protection Act, 1921 (Madras 3 of 1921) in the City of Madras; see sec. 13 of that Act.

It has been amended in Bombay by Bombay Act 14 of 1939, and in Uttar Pradesh by Uttar Pradesh Act 24 of 1954. It has been extended to Pondicherry by Act 26 of 1968, sec. 3, Sch., Part I.

3. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “Part B States”.

4. Subs. by the A.O. 1937, for the original paragraph.

5. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “said States”.

6. Subs. by A.O. 1950, for “Provincial Government”.

7. Subs. by Act 3 of 1885, sec. 1, for the original paragraph.

8. The words “with the previous sanction of the Governor General in Council” omitted by Act 38 of 1920, sec. 2 and Sch. I.

9. Added by Act 3 of 1885, sec. 2 (with retrospective effect). Section 54, paras 2 and 3 and sections 59, 107 and 123 extend to every cantonment—see section 287 of the Cantonment Act, 1924(2 of 1924).

10. Subs. by Act 20 of 1929, sec. 2, for “1877”.

Section 2. Repeal of Acts

Saving of certain enactments, incidents, rights, liabilities, etc.—In the territories to which this Act extends for the time being the enactments specified in the Schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained shall be deemed to affect—

(a) the provisions of any enactment not hereby expressly repealed;

(b) any terms or incidents of any contract or constitution of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force;

(c) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability; or

(d) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction,

and nothing in the second Chapter of this Act shall be deemed to affect any rule of ¹[***] Muhammadan ²[***] law.

————–

1. Added by Act 3 of 1885, sec. 2 (with retrospective effect). Section 54, paras 2 and 3 and sections 59, 107 and 123 extend to every cantonment—see section 287 of the Cantonment Act, 1924(2 of 1924).

2. Subs. by Act 20 of 1929, sec. 2, for “1877”.

Section 3. Interpretation clause

In this Act, unless there is something repugnant in the subject or context,—

“immoveable property” does not include standing timber, growing crops or grass;

‘‘instrument” means a non-testamentary instrument;

¹[“attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;]

“registered” means registered in ²[³[any part of the territories] to which this Act extends] under the law⁴ for the time being in force regulating the registration of documents;

“attached to the earth” means—

(a) rooted in the earth, as in the case of trees and shrubs;

(b) imbedded in the earth, as in the case of walls or buildings; or

⁵[“actionable claim” means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent;]

⁶[“a person is said to have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.

Explanation I.—Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:]

Provided that—

(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder,

(2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and

(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.

Explanation II.—Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

Explanation III.—A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:

Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.

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1. Ins. by Act 27 of 1926, sec. 2 as amended by Act 10 of 1927, sec. 2 and Sch. I.

2. Subs. by Act 3 of 1951, sec. 3 and sch., for “a Part A State or a Part C State” (w.e.f. 1-4-1951).

3. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “any State”.

4. See the Indian Registration Act, 1908 (16 of 1908).

5. Ins. by Act 2 of 1900, sec. 2.

6. Subs. by Act 20 of 1929, sec. 4 as amended by Act 5 of 1930, sec. 2 for the original paragraph.

Section 4. Enactments relating to contracts to be taken as part of Contract Act and supplemental to the Registration Act

The Chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872

(9 of 1872).

¹[And section 54, paragraphs 2 and 3, and sections 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, ²[1908 (16 of 1908)].]

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1. Added by Act 3 of 1885, sec. 3.

2. Subs. by Act 20 of 1929, sec. 5, for “1877”.

Section 5. “Transfer of property” defined

In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, ¹[or to himself] and one or more other living persons; and “to transfer property” is to perform such act.

¹[In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.]

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1. Ins. by Act 20 of 1929, sec. 6.

Section 6. What may be transferred

Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force,—

(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred;

(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby;

(d) All interest in property restricted in its enjoyment to the owner personally cannot be transferred by him;

¹[(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred;]

(e) A mere right to sue ²[***] cannot be transferred;

(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable;

(g) Stipends allowed to military ³[naval], ⁴[air-force] and civil pensioners of the ⁵[Government] and political pensions cannot be transferred;

(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) ⁶[for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872)], or (3) to a person legally disqualified to be transferee;

⁷[(i) Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate, under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.]

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1. Ins. by Act 20 of 1929, sec. 6.

2. The words “for compensation for a fraud or for harm illegally caused” omitted by Act 2 of 1900, sec. 3.

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

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

5. The word “Government” successively subs. by the A.O. 1937 and the A.O. 1950 to read as above.

6. Subs. by Act 2 of 1900, sec. 3, for “for an illegal purpose”.

7. Added by Act 3 of 1885, sec. 4.

Section 7. Persons competent to transfer.

Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.

Section 8. Operation of transfer

Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.

Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer;and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.

Section 9. Oral transfer

A transfer of property may be made without writing in every case in which a writing is not expressly required by law.

Section 10. Condition restraining alienation

Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.

Section 11. Restriction repugnant to interest created

Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.

¹[Where any such direction has been made in respect of one piece of immoveable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.]

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1. Subs. by Act 20 of 1929, sec. 8, for the original paragraph.

Section 12. Condition making interest determinable on insolvency or attempted alienation

Where property is transferred subject to a condition or limitation making any interest therein, reserved or given to or for the benefit of any person, to cease on his becoming insolvent or endeavouring to transfer or dispose of the same, such condition or limitation is void.

Nothing in this section applies to a condition in a lease for the benefit of the lessor or those claiming under him.

Section 13. Transfer for benefit of unborn person

Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.

Illustration

A transfers property of which he is the owner to B in trust for A and his intended wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A’s second son. The interest so created for the benefit of the eldest son does not take effect, because it does not extend to the whole of A’s remaining interest in the property.

Section 14. Rule against perpetuity

No transfer of property can operate to create an interest which is to take effect after the life-time of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong.

Section 15. Transfer to class some of whom come under sections 13 and 14

If, on a transfer of property, an interest therein is created for the benefit of a class of persons with regard to some of whom such interest fails by reason of any of the rules contained in sections 13 and 14, such interest fails ¹[in regard to those persons only and not in regard to the whole class].

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1. Subs. by Act 20 of 1929, sec. 9, for “as regards the whole class”.

Section 16. Transfer to take effect on failure of prior interest

¹[16. Transfer to take effect on failure of prior interest.—Where, by reason of any of the rules contained in sections 13 and 14, an interest created for the benefit of a person or of a class of persons fails in regard to such person or the whole of such class, any interest created in the same transaction and intended to take effect after or upon failure of such prior interest also fails.

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1. Subs. by Act 20 of 1929, sec. 10, for the original sections 16 to 18.

Section 17. Direction for accumulation

(1) Where the terms of a transfer of property direct that the income arising from the property shall be accumulated either wholly or in part during a period longer than—

(a) the life of the transferor, or

(b) a period of eighteen years from the date of transfer,

such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the longer of the aforesaid periods, and at the end of such last-mentioned period the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.

(2) This section shall not affect any direction for accumulation for the purpose of—

(i) the payment of the debts of the transferor or any other person taking any interest under the transferor; or

(ii) the provision of portions for children or remoter issue of the transferor or of any other person taking any interest under the transfer; or

(iii) the preservation or maintenance of the property transferred,

and such direction may be made accordingly.

Section 18. Transfer in perpetuity for benefit of public

The restrictions in sections 14, 16 and 17 shall not apply in the case of a transfer of property for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind.]

Section 19. Vested interest

Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.

A vested interest is not defeated by the death of the transferee before he obtains possession.

Explanation.—An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person.

Section 20. When unborn person acquires vested interest on transfer for his benefit

Where, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth.

Section 21. Contingent interest

Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible.

Exception.—Where, under a transfer of property, a person becomes entitled to an interest therein upon attaining a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that age, or directs the income or so much thereof as may be necessary to be applied for his benefit, such interest is not contingent.

Section 22. Transfer to members of a class who attain a particular age

Where, on a transfer of property, an interest therein is created in favour of such members only of a class as shall attain a particular age, such interest does not vest in any member of the class who has not attained that age.

Section 23. Transfer contingent on happening of specified uncertain event

Where, on a transfer of property, an interest therein is to accrue to a specified person if a specified uncertain event shall happen, and no time is mentioned for the occurrence of that event, the interest fails unless such event happens before, or at the same time as, the intermediate or precedent interest ceases to exist.

Section 24. Transfer to such of certain persons as survive at some period not specified

Where, on a transfer of property, an interest therein is to accrue to such of certain persons as shall be surviving at some period, but the exact period is not specified, the interest shall go to such of them as shall be alive when the intermediate or precedent interest ceases to exist, unless a contrary intention appears from the terms of the transfer.

Illustration

A transfers property to B for life, and after his death to C and D, equally to be divided between them, or to the survivor of them. C dies during the life of B. D survives B. At B’s death the property passes to D.

Section 25. Conditional transfer

An interest created on a transfer of property and dependent upon a condition fails if the fulfilment of the condition is impossible, or is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy.

Illustration

(a) A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is void.

(b) A gives Rs. 500 to B on condition that he shall marry A’s daughter C. At the date of the transfer C was dead. The transfer is void.

(d) A transfers Rs. 500 to his niece C, if she will desert her husband. The transfer is void.

Section 26. Fulfilment of condition precedent

Where the terms of a transfer of property impose a condition to be fulfilled before a person can take an interest in the property, the condition shall be deemed to have been fulfilled if it has been substantially complied with.

Illustration

(a) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of C, D and E. E dies. B marries with the consent of C and D. B is deemed to have fulfilled the condition.

(b) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of C, D and E. B marries without the consent of C, D and E, but obtains their consent after the marriage. B has not fulfilled the condition.

Section 27. Conditional transfer to one person coupled with transfer to another on failure of prior disposition

Where, on a transfer of property, an interest therein is created in favour of one person, and by the same transaction an ulterior disposition of the same interest is made in favour of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition, although the failure may not have occurred in the manner contemplated by the transferor.

But, where the intention of the parties to the transaction is that the ulterior disposition shall take effect only in the event of the prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner.

Illustration

(a) A transfers Rs. 500 to B on condition that he shall execute a certain lease within three months after A’s death, and, if he should neglect to do so, to C. B dies in A’s life-time. The disposition in favour of C takes effect.

(b) A transfers property to his wife; but, in case she should die in his life-time, transfer to B that which he had transferred to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him. The disposition in favour of B does not take effect.

Section 28. Ulterior transfer conditional on happening or not happening of specified event

Illustration

Section 29. Fulfilment of condition subsequent

An ulterior disposition of the kind contemplated by the last preceding section cannot, take effect unless the condition is strictly fulfilled.

Illustration

A transfers Rs. 500 to B, to be paid to him on his attaining his majority or marrying, with a proviso that, if B dies as minor or marries without C’s consent, the Rs. 500 shall go to D. B marries when only 17 years of age, without C’s consent. The transfer to D takes effect.

Section 30. Prior disposition not affected by invalidity of ulterior disposition

If the ulterior disposition is not valid, the prior disposition is not affected by it.

Illustration

A transfers a farm to B for her life, and, if she does not desert her husband to C. B is entitled to the farm during her life as if no condition had been inserted.

Section 31. Condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen

Subject to the provisions of section 12, on a transfer of property an interest therein may be created with the condition superadded that it shall cease to exist in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen.

Illustration

(a) A transfers a farm to B for his life, with a proviso that, in case B cuts down a certain wood, the transfer shall cease to have any effect. B cuts down the wood. He loses his life-interest in the farm.

(b) A transfers a farm to B, provided that, if B shall not go to England within three years after the date of the transfer, his interest in the farm shall cease. B does not go to England within the term prescribed. His interest in the farm ceases.

Section 32. Such condition must not be invalid

In order that a condition that an interest shall cease to exist may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of the creation of an interest.

Section 33. Transfer conditional on performance of act, no time being specified for performance

Where, on a transfer of property, an interest therein is created subject to a condition that the person taking it shall perform a certain act, but no time is specified for the performance of the act, the condition is broken when he renders impossible, permanently or for an indefinite period, the performance of the act.

Section 34. Transfer conditional on performance of act, time being specified

Where an act is to be performed by a person either as a condition to be fulfilled before an interest created on a transfer of property is enjoyed by him, or as a condition on the non-fulfilment of which the interest is to pass from him to another person, and a time is specified for the performance of the act, if such performance within the specified time is prevented by the fraud of a person who would be directly benefited by non-fulfilment of the condition, such further time shall as against him be allowed for performing the act as shall be requisite to make up for the delay caused by such fraud. But if no time is specified for the performance of the act, then, if its performance is by the fraud of a person interested in the non-fulfilment of the condition rendered impossible or indefinitely postponed, the condition shall as against him be deemed to have been fulfilled.

Section 35. Election when necessary

Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of,

subject nevertheless,

where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer,and in all cases where the transfer is for consideration,to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.

Illustrations

The farm of Sultanpur is the property of C and worth Rs. 800. A by an instrument of gift professes to transfer it to B, giving by the same instrument Rs. 1,000 to C. C elects to retain the farm. He forfeits the gift of Rs. 1,000.

In the same case, A dies before the election. His representative must out of the Rs. 1,000 pay Rs. 800 to B.

The rule in the first paragraph of this section applies whether the transferor does or does not believe that which he professes to transfer to be his own.

A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect.

A person who in his one capacity takes a benefit under the transaction may in another dissent therefrom.

Exception to the last preceding four rules.—Where a particular benefit is expressed to be conferred on the owner of the property which the transferor professes to transfer, and such benefit is expressed to be in lieu of that property, if such owner claims the property, he must relinquish the particular benefit, but he is not bound to relinquish any other benefit conferred upon him by the same transaction.

Acceptance of the benefit by the person on whom it is conferred constitutes an election by him to confirm the transfer, if he is aware of his duty to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waives enquiry into the circumstances.

Such knowledge or waiver shall, in the absence of evidence to the contrary, be presumed, if the person on whom the benefit has been conferred has enjoyed it for two years without doing any act to express dissent.

Such knowledge or waiver may be inferred from any act of his which renders it impossible to place the persons interested in the property professed to be transferred in the same condition as if such act had not been done.

Illustration

A transfers to B an estate to which C is entitled, and as part of the same transaction gives C a coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer of the estate to B.

If he does not within one year after the date of the transfer signify to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representative may, upon the expiration of that period, require him to make his election; and, if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the transfer.

In case of disability, the election shall be postponed until the disability ceases, or until the election is made by some competent authority.

Section 36. Apportionment of periodical payments on determination of interest of person entitled

In the absence of a contract or local usage to the contrary, all rents annuities, pensions, dividends and other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to receive such payments, be deemed, as between the transferor and the transferee, to accrue due from day to day, and to be apportionable accordingly, but to be payable on the days appointed for the payment thereof.

Section 37. Apportionment of benefit of obligation on severance

When, in consequence of a transfer, property is divided and held in several shares, and thereupon the benefit of any obligation relating to the property as a whole passes from one to several owners of the property, the corresponding duty shall, in the absence of a contract, to the contrary amongst the owners, be performed in favour of each of such owners in proportion to the value of his share in the property, provided that the duty can be severed and that the severance does not substantially increase the burden of the obligation; but if the duty cannot be severed, or if the severance would substantially increase the burden of the obligation the duty shall be performed for the benefit of such one of the several owners as they shall jointly designate for that purpose:

Provided that no person on whom the burden of the obligation lies shall be answerable for failure to discharge it in manner provided by this section, unless and until he has had reasonable notice of the severance.

Nothing in this section applies to leases for agricultural purposes unless and until the State Government by notification in the Official Gazette so directs.

Illustration

(a) A sells to B, C and D a house situated in a village and leased to E at an annual rent of Rs. 30 and delivery of one fat sheep, B having provided half the purchase-money and C and D one quarter each. E, having notice of this, must pay Rs. 15 to B, Rs. 7.50 to C, and Rs. 7.50 to D and must deliver the sheep according to the joint direction of B, C and D.

(b) In the same case, each house in the village being bound to provide ten days’ labour each year on a dyke to prevent inundation. E had agreed as a term of his lease to perform this work for A. B, C and D severally require E to perform the ten days’ work due on account of the house of each. E is not bound to do more than ten days’ work in all, according to such directions as B, C and D may join in giving.

38. Transfer by person authorised only under certain circumstances to transfer.—

Where any person, authorised only under circumstances in their nature variable to dispose of immoveable property, transfers such property for consideration, alleging the existence of such circumstances, they shall, as between the transferee on the one part and the transferor and other persons (if any) affected by the transfer on the other part, be deemed to have existed, if the transferee, after using reasonable care to ascertain the existence of such circumstances, has acted in good faith.

Illustration

A, a Hindu widow, whose husband has left collateral heirs, alleging that the property held by her as such is insufficient for her maintenance, agrees, for purposes neither religious nor charitable to sell a field, part of such property, to B. B satisfies himself by reasonable enquiry that the income of the property is insufficient for A’s maintenance, and that the sale of the field is necessary, and acting in good faith, buys the field from A. As between B on the one part and A and the collateral heirs on the other part, a necessity for the sale shall be deemed to have existed.

Section 39. Transfer where third person is entitled to maintenance

Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immoveable property, and such property is transferred, ¹[***] the right may be enforced against the transferee, if he has notice ²[thereof] or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.

³[* * *]

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1. The words “with the intention of defeating such right” omitted by Act 20 of 1929, sec. 11.

2. Subs. by Act 20 of 1929, sec. 11, for “of such intention”.

3. The illustration omitted by Act 20 of 1929, sec. 11.

0. Burden of obligation imposing restriction on use of land.—

Where, for the more beneficial enjoyment of his own immoveable property, a third person has, independently of any interest in the immoveable property of another or of any easement thereon, a right to restrain the enjoyment ¹[in a particular manner of the latter property], or

Or of obligation annexed to ownership but not amounting to interest or easement.—Where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon,

such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, not against such property in his hands.

Illustration

A contracts to sell Sultanpur to B. While the contract is still in force he sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A.

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1. Subs. by Act 20 of 1929, sec. 12, for “of the latter property or to compel its enjoyment in a particular manner”.

Section 41. Transfer by ostensible owner

Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.

Section 42. Transfer by person having authority to revoke former transfer

Where a person transfers any immoveable property, reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee (subject to any condition attached to the exercise of the power) as a revocation of the former transfer to the extent of the power.

Illustration

A lets a house to B, and reserves power to revoke the lease if, in the opinion of a specified surveyor, B should make a use of it detrimental to its value. Afterwards A, thinking that such a use has been made, lets the house to C. This operates as a revocation of B’s lease subject to the opinion of the surveyor as to B’s use of the house having been detrimental to its value.

Section 43. Transfer by unauthorised person who subsequently acquires interest in property transferred

Where a person ¹[fraudulently or] erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.

Illustration

A, a Hindu who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorised to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition; but on B’s dying A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him.

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1. Ins. by Act 20 of 1929, sec. 13.

Section 44. Transfer by one co-owner

Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

Section 45. Joint transfer for consideration

Where immoveable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced.

In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.

Section 46. Transfer for consideration by persons having distinct interests

Where immoveable property is transferred for consideration by persons having distinct interests therein, the transferors are, in the absence of a contract to the contrary, entitled to share in the consideration equally, where their interests in the property were of equal value, and, where such interests were of unequal value, proportionately to the value of their respective interests.

Illustration

(a) A, owing a moiety, and B and C, each a quarter share, of mauza Sultanpur, exchange an eighth share of that mauza for a quarter share of mauza. There being no agreement to the contrary, A is entitled to an eighth share in Lalpura, and B and C each to a sixteenth share in the mauza.

(b) A, being entitled to a life-interest in mauza Atrali and B and C to the reversion, sell the mauza for Rs. 1,000. A’s life-interest is ascertained to be worth Rs. 600, the reversion Rs. 400. A is entitled to receive Rs. 600 out of the purchase-money. B and C to receive Rs. 400.

Section 47. Transfer by co-owners of share in common property

Where several co-owners of immoveable property transfer a share therein without specifying that the transfer is to take effect on any particular share or shares of the transferors, the transfer, as among such transferors, takes effect on such shares equally where the shares were equal, and, where they were unequal, proportionately to the extent of such shares.

Illustration

A, the owner of an eight-anna share, and B and C, each the owner of a four-anna share, in mauza Sultanpur, transfer a two-anna share in the mauza to D, without specifying from which of their several shares the transfer is made. To give effect to the transfer one-anna share is taken from the share of A, and half-an-anna share from each of the shares of B and C.

Section 48. Priority of rights created by transfer

Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.

Section 49. Transferee’s right under policy

Where immoveable property is transferred for consideration, and such property or any part thereof is at the date of the transfer insured against loss or damage by fire, the transferee, in case of such loss or damage, may, in the absence of a contract to the contrary, require any money which the transferor actually receives under the policy, or so much thereof as may be necessary, to be applied in reinstating the property.

Section 50. Rent bona fide paid to holder under defective title

No person shall be chargeable with any rents or profits of any immoveable property, which he has in good faith paid or delivered to any person of whom he in good faith held such property, notwithstanding it may afterwards appear that the person to whom such payment or delivery was made had no right to receive such rents or profits.

Illustration

A lets a field to B at a rent of Rs. 50, and then transfers the field to C. B, having no notice of the transfer, in good faith pays the rent to A. B is not chargeable with the rent so paid.

51. Improvements made by bona fide holders under defective titles.—

When the transferee of immoveable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement.

The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.

When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.

Section 52. Transfer of property pending suit relating thereto

During the ¹[pendency] in any Court having authority ²[ ³[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by ⁴[the Central Government] ⁵[* * *] of ⁶[any] suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

⁷[Explanation.—For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]

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1. Subs. by Act 20 of 1929, sec. 14, for “active prosecution”.

2. Subs. by the A.O. 1950, for “in the Provinces or established beyond the limits of the Provinces”.

3. Subs. by Act 3 of 1951, sec. 3 and Sch., for “within the limits of Part A States and Part C States” (w.e.f. 1-4-1951).

4. Subs. by the A.O.1937, for “the Governor General in Council”.

5. The words “or the Crown Representative” rep. by the A.O. 1948.

6. Subs. by Act 20 of 1929, sec. 14, for “a contentious”.

7. Ins. by Act 20 of 1929, sec. 14.

Section 53. Fraudulent transfer

¹[53. Fraudulent transfer.—(1) Every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed.

Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration.

Nothing in this sub-section shall affect any law for the time being in force relating to insolvency.

A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors.

(2) Every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.

For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.]

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1. Subs. by Act 20 of 1929, sec. 15, for the original section.

Section 53A. Part performance

¹[53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,

and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract,

then, notwithstanding that ²[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]

1. Ins. by Act 20 of 1929, sec. 16.

2. The words “the contract, though required to be registered, has not been registered, or,” omitted by Act 48 of 2001, sec. 10 (w.e.f. 24-9-2001).

Section 54. “Sale” defined

‘‘Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made.—3Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

¹In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale.—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property.

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1. As to limitation to the territorial operation of paragraphs 2 and 3 of section 54, see section 1, supra. These paragraphs extend to every cantonment see section 287 of the CantonmentsAct, 1924 (2 of 1924).

Section 55. Rights and liabilities of buyer and seller

In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in ,the rules next following, or such of them as are applicable to the property sold:—

(1) The seller is bound—

(a) to disclose to the buyer any material defect in the property 1[or in the seller’s title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;

(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power;

(c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto;

(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place;

(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents;

(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;

(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing.

(2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same:

Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it.

The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

(3) Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller’s possession or power :

Provided that, (a) where the seller retains any part of the property comprised in such documents, he is entitled to retain them all, and, (b) where the whole of such property is sold to different buyers, the buye of the lot of greatest value is entitled to such documents. But in case (a) the seller, and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyers, as the case may be, and at the cost of the person making the request, to produce the said documents and furnish such true copies thereof or extracts therefrom as he may require; and in the meantime, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said documents safe, uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident.

(4) The seller is entitled—

(a) to the rents and profits of the property till the ownership thereof passes to the buyer;

(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, 1[any transferee without consideration or any transferee with notice of the non-payment], for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part ¹[from the date on which possession has been delivered].

(5) The buyer is bound—

(a) to disclose to the seller any fact as to the nature or extent of the seller’s interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware, and which materially increases the value of such interest;

(b) to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs: provided that, where the property is sold free from encumbrances, the buyer may retain out of the purchase-money the amount of any encumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto;

(c) where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller;

(d) where the ownership of the property has passed to the buyer, as between himself and the seller, to pay all public charges and rent which may become payable in respect of the property, the principal moneys due on any encumbrances subject to which the property is sold, and the interest thereon afterwards accruing due.

(6) The buyer is entitled—

(a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof;

(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, ²[* * *] to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.

An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a), and paragraph (5), clause (a), is fraudulent.

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1. Ins. by Act 20 of 1929, sec. 17.

2. The words “with notice of the payment” omitted by Act 20 of 1929, sec. 17.

Section 56. Marshalling by subsequent purchaser

¹[56. Marshalling by subsequent purchaser.—If the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person, the buyer is, in the absence of a contract to the contrary, entitled to have the mortgaged-debt satisfied out of the property or properties not sold to him, so far as the same will extend, but not so as to prejudice the rights of the mortgagee or persons claiming under him or of any other person who has for consideration acquired an interest in any of the properties.]

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1. Subs. by Act 20 of 1929, sec. 18, for the original section.

Section 57. Provision by Court for encumbrances and sale freed therefrom

(a) Where immoveable property subject to any encumbrances, whether immediately payable or not, is sold by the court or in execution of a decree, or out of court, the court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court,—

(1) in case of an annual or monthly sum charged on the property, or of a capital sum charged on a determinable interest in the property—of such amount as, when invested in securities of the Central Government, the Court considers will be sufficient, by means of the interest thereof, to keep down or otherwise provide for that charge, and

(2) in any other case of a capital sum charged on the property—of the amount sufficient to meet the encumbrance and any interest due thereon.

But in either case there shall also be paid into court such additional amount as the Court considers will be sufficient to meet the contingency of further costs, expenses and interest, and any other contingency, except depreciation of investment, not exceeding one-tenth part of the original amount to be paid in, unless the Court for special reasons (which it shall record) thinks fit to require a large additional amount.

(b) Thereupon the Court may, if it thinks fit, and after notice to the encumbrance, unless the Court, for reasons to be recorded in writing, thinks fit to dispense with such notice, declare the property to be freed from the encumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in Court.

(c) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.

(d) An appeal shall lie from any declaration, order or direction under this section as if the same were a decree.

(e) In this section “Court” means (1) a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, (2) the Court of a District Judge within the local limits of whose jurisdiction the property or any part thereof is situate, (3) any other Court which the State Government may, from time to time, by notification in the Official Gazette, declare to be competent to exercise the jurisdiction conferred by this section.

Section 58. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgage-deed” defined

(a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.

(b) Simple mortgage.—Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.

on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or

on condition that on such payment being made the sale shall become void, or

on condition that on such payment being made the buyer shall transfer the property to the seller,

the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:

¹[Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.]

(d) Usufructuary mortgage.—Where the mortgagor delivers possession ¹[or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property ²[or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest ³[or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.

(e) English mortgage.—Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.

⁴[(f) Mortgage by deposit of title-deeds.—Where a person in any of the following towns, namely, the towns of Calcutta, Madras, ⁵[and Bombay], ⁶[* * *] and in any other town⁷ which the ⁸[State Government concerned] may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.

(g) Anomalous mortgage.—A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.]

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1. Ins. by Act 20 of 1929, sec. 19.

2. Subs. by Act 20 of 1929, sec. 19, for “and to appropriate them”.

3. Subs. by Act 20 of 1929, sec. 19, for “and”.

4. Added by Act 20 of 1929, sec. 19.

5. Subs. by the A.O. 1948, for “Bombay and Karachi”. The word “and” had been ins. by the A.O. 1937.

6. The words “Rangoon, Moulmein, Bassein and Akyab” omitted by the A.O. 1937.

7. For notifications relating to the towns of—Ahmedabad, see Gazette of India, 1935, Pt. I, p. 936, Bandra, Kurla and Ghathkoper Kirol, see Gazette of India, 1924, Pt.I, p.1064, Cawnpore, Allahabad and Lucknow, see Gazette of India, 1938, Pt. I, p. 158. Coimbatore, Madura, Cocanada and Cochin, see Gazette of India, 1935, Pt. I, p. 526.

8. The words “Governor General in Council”, successively amended by the A.O. 1937 and the A.O. 1950 to read as above.

Section 59. Mortgage when to be by assurance

Where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.

Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid or (except in the case of a simple mortgage) by delivery of the property.

¹[***]

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1. The third paragraph was omitted by Act 20 of 1929, sec. 20.

Section 59A. References to mortgagors and mortgagees to include persons deriving title from them

¹[59A. References to mortgagors and mortgagees to include persons deriving title from them.—Unless otherwise expressly provided, references in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively.]

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1. Ins. by Act 20 of 1929, sec. 21.

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1. As to limitation to the territorial operation of section 59, see section 1, supra, section 59, extends to every cantonment—see section 287 of the Cantonments Act, 1924 (2 of 1924).

2. Ins. by Act 20 of 1929, sec. 20.

3. Subs. by Act 6 of 1904, sec. 3, for “an instrument”.

4. The third paragraph omitted by Act 20 of 1929, sec. 20

Section 60. Right of mortgagor to redeem

At any time after the principal money has become ¹[due], the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver ²[to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:

Provided that the right conferred by this section has not been extinguished by act of the parties or by ³[decree] of a Court.

The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.

Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.

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1. Subs. by Act 20 of 1929, sec. 22, for “payable”.

2. Subs. by Act 20 of 1929, sec. 22, for “the mortgage-deed, if any to the mortgagor”.

3. Subs. by Act 20 of 1929, sec. 22, for “order”.

4. Ins. by Act 20 of 1929, sec. 22.

Section 60A. Obligation to transfer to third party instead of re-transference to mortgagor

¹[60A. Obligation to transfer to third party instead of re-transference to mortgagor.—(1) Where a mortgagor is entitled to redemption, then, on the fulfilment of any conditions on the fulfilment of which he would be entitled to require a re-transfer, he may require the mortgagee, instead of re-transferring the property, to assign the mortgage-debt and transfer the mortgaged property to such third person as the mortgagor may direct; and the mortgagee shall be bound to assign and transfer accordingly.

(2) The rights conferred by this section belong to and may be enforced by the mortgagor or by any encumbrancer notwithstanding an intermediate encumbrance; but the requisition of any encumbrance shall prevail over a requisition of the mortgagor and, as between encumbrancers, the requisition of a prior encumbrancer shall prevail over that of a subsequent encumbrancer.

(3) The provisions of this section do not apply in the case of a mortgagee who is or has been in possession.

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1. Sections 60A and 60B ins. by Act 20 of 1929, sec. 23.

Section 60B. Right to inspection and production of documents

A mortgagor, as long as his right of redemption subsists, shall be entitled at all reasonable times, at his request and at his own cost, and on payment of the mortgagee’s costs and expenses in this behalf, to inspect and make copies or abstracts of, or extracts from, documents of title relating to the mortgaged property which are in the custody or power of the mortgagee.]

Section 61. Right to redeem separately or simultaneously

¹[61. Right to redeem separately or simultaneously.—A mortgagor who has executed two or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, be entitled to redeem any one such mortgage separately, or any two or more of such mortgages together.]

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1. Subs. by Act 20 of 1929, sec. 24, for the original section.

Section 62. Right of usufructuary mortgagor to recover possession

In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property ¹[together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],—

(a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property,—when such money is paid;

(b) where the mortgagee is authorised to pay himself from such rents and profits²[or any part thereof a part only of the mortgage-money],—when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee ³[the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided.

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1. Ins. by Act 20 of 1929, sec. 25.

2. Subs. by Act 20 of 1929, sec. 25, for “the interest of the principal money”.

3. Subs. by Act 20 of 1929, sec. 25, for “the principal money”.

Section 63. Accession to mortgaged property

Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, received any accession, the mortgagor, upon redemption shall, in the absence of a contract to the contrary, be entitled as against the mortgagee to such accession.

Accession acquired in virtue of transferred ownership.—Where such accession has been acquired at the expense of the mortgagee, and is capable of separate possession or enjoyment without detriment to the principal property, the mortgagor desiring to take the accession must pay to the mortgagee the expense of acquiring it. If such separate possession or enjoyment is not possible, the accession must be delivered with the property; the mortgagor being liable, in the case of an acquisition necessary to preserve the property from destruction, forfeiture or sale, or made with his assent, to pay the proper cost thereof, as an addition to the principal money, ¹[with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum].

In the case last mentioned the profits, if any, arising from the accession shall be credited to the mortgagor.

Where the mortgage is usufructuary and the accession has been acquired at the expense of the mortgagee, the profits, if any, arising from the accession shall, in the absence of a contract to the contrary, be set off against interest, if any, payable on the money so expended.

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1. Subs. by Act 20 of 1929, sec. 26, for “at the same rate of interest”.

Section 63A. Improvements to mortgaged property

¹[63A. Improvements to mortgaged property.—(1) Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, been improved, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled to the improvement; and the mortgagor shall not, save only in cases provided for in sub-section (2), be liable to pay the cost thereof.

(2) Where any such improvement was effected at the cost of the mortgagee and was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient, or was made in compliance with the lawful order of any public servant or public authority, the mortgagor shall, in the absence of a contract to the contrary, be liable to pay the proper cost thereof as an addition to the principal money with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum, and the profits, if any, accruing by reason of the improvement shall be credited to the mortgagor.]

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1. Ins. by Act 20 of 1929, sec. 27.

Section 64. Renewal of mortgaged lease

Where the mortgaged property is a lease ¹[***], and the mortgagee obtains a renewal of the lease, the mortgagor, upon redemption, shall, in the absence of a contract by him to the contrary, have the benefit of the new lease.

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1. The words “for a term of years” omitted by Act 20 of 1929, sec. 28.

Section 65. Implied contracts by mortgagor

In the absence of a contract to the contrary, the mortgagor shall be deemed to contract with the mortgagee,—

(a) that the interest which the mortgagor professes to transfer to the mortgagee subsists, and that the mortgagor has power to transfer the same;

(b) that the mortgagor will defend, or, if the mortgagee be in possession of the mortgaged property, enable him to defend, the mortgagor’s title thereto;

(c) that the mortgagor will, so long as the mortgagee is not in possession of the mortgaged property, pay all public charges accruing due in respect of the property;

(d) and, where the mortgaged property is a lease ¹[***], that the rent payable under the lease, the conditions contained therein, and the contracts binding on the lessee have been paid, performed and observed down to the commencement of the mortgage; and that the mortgagor will, so long as the security exists and the mortgagee is not in possession of the mortgaged property, pay the rent reserved by the lease, or, if the lease be renewed, the renewed lease, perform the conditions contained therein and observe the contracts binding on the lessee, and indemnify the mortgagee against all the claims sustained by reason of the non-payment of the said rent or the non-performance or non-observance of the said conditions and contracts;

(e) and, where the mortgage is a second or subsequent encumbrance on the property, that the mortgagor will pay the interest from time to time accruing due on each prior encumbrance as and when it becomes due, and will at the proper time discharge the principal money due on such prior incumbrance.

²[***]

The benefit of the contracts mentioned in this section shall be annexed to and shall go with the interest of the mortgagee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

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1. The words “for a term of years” omitted by Act 20 of 1929, sec. 29.

2. Certain words omitted by Act 20 of 1929, sec. 29.

Section 65A. Mortgagor’s power to lease

¹[65A. Mortgagor’s power to lease.—(1) Subject to the provisions of sub-section (2), a mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee.

(2) (a) Every such lease shall be such as would be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or usage,

(b) Every such lease shall reserve the best rent that can reasonably be obtained, and no premium shall be paid or promised and no rent shall be payable in advance,

(d) Every such lease shall take effect from a date not later than six months from the date on which it is made,

(e) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years, and the lease shall contain a covenant for payment of the rent and a condition of re-entry on the rent not being paid with a time therein specified.

(3) The provisions of sub-section (1) apply only if and as far as a contrary intention is not expressed in the mortgage-deed; and the provisions of sub-section (2) may be varied or extended by the mortgage-deed and, as so varied and extended, shall, as far as may be, operate in like manner and with all like incidents, effects and consequences, as if such variations or extensions were contained in that sub-section.]

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1. Ins. by Act 20 of 1929, sec. 30.

Section 66. Waste by mortgagor in possession

A mortgagor in possession of the mortgaged property is not liable to the mortgagee for allowing the property to deteriorate; but he must not commit any act which is destructive or permanently injurious thereto, if the security is insufficient or will be rendered insufficient by such act.

Explanation.—A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one-third, or, if consisting of buildings, exceeds by one-half, the amount for the time being due on the mortgage.

Section 67. Right to fore-closure or sale

In the absence of a contract to the contrary, the mortgagee has, at any time after the mortgage-money has become ¹[due] to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage-money has been paid or deposited as hereinafter provided, a right to obtain from the Court ²[a decree] that the mortgagor shall be absolutely debarred of his right to redeem the property, or ²[a decree] that the property be sold.

A suit to obtain ²[a decree] that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a suit for foreclosure.

Nothing in this section shall be deemed—

³[(a) to authorise any mortgagee other than a mortgagee by conditional sale or a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure, or an usufructuary mortgagee as such or a mortgagee by conditional sale as such to institute a suit for sale; or]

(b) to authorise a mortgagor who holds the mortgagee’s rights as his trustee or legal representative, and who may sue for a sale of the property, to institute a suit for foreclosure; or

(c) to authorise the mortgagee of a railway, canal, or other work in the maintenance of which the public are interested, to institute a suit for foreclosure or sale; or

(d) to authorise a person interested in part only of the mortgage-money to institute a suit relating only to a corresponding part of the mortgaged property, unless the mortgagees have, with the consent of the mortgagor, severed their interests under the mortgage.

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1. Subs. by Act 20 of 1929, sec. 31, for “payable”.

2. Subs. by Act 20 of 1929, sec. 31, for “an order”.

3. Subs. by Act 20 of 1929, sec. 31, for the original clause.

Section 67A. Mortgagee when bound to bring one suit on several mortgages

¹[67A. Mortgagee when bound to bring one suit on several mortgages.—A mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under section 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due.]

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1. Ins. by Act 20 of 1929, sec. 32.

Section 68. Right to sue for mortgage-money

¹[68. Right to sue for mortgage-money.—(1) The mortgagee has a right to sue for the mortgage-money in the following cases and no others, namely:—

(a) where the mortgagor binds himself to repay the same;

(b) where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so;

(c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor;

(d) where, the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor :

Provided that, in the case referred to in clause (a), a transferee from the mortgagor or from his legal representative shall not be liable to be sued for the mortgage-money.

(2) Where a suit is brought under clause (a) or clause (b) of sub-section (1), the Court may, at its discretion, stay the suit and all proceedings therein, notwithstanding any contract to the contrary, until the mortgagee has exhausted all his available remedies against the mortgaged property or what remains of it, unless the mortgagee abandons his security and, if necessary, re-transfers the mortgaged property.]

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1. Subs. by Act 20 of 1929, sec. 33, for the original section.

Section 69. Power of sale when valid

69. Power of sale when valid.—¹[(1)] ²[³[***] A mortgagee, or any person acting on his behalf, shall, subject to the provisions of this section have power to sell or concur in selling the mortgaged property or any part thereof, in default of payment of the mortgage-money, without the intervention of the court, in the following cases and in no others, namely:—]

(a) where the mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is a Hindu, Muhammadan or Buddhist 4[or a member of any other race, sect, tribe or class from time to time specified in this behalf by ⁵[the State Government], in the Official Gazette];

(b) where ⁶[a power of sale without the intervention of the court is expressly conferred on the mortgagee by the mortgage-deed and] the mortgagee is ⁷[the Government];

(c) where ⁶[a power of sale without the intervention of the court is expressly conferred on the mortgagee by the mortgage-deed and] the mortgaged property or any part thereof ⁸[was, on the date of the execution of the mortgage-deed], situate within the towns of Calcutta, Madras, Bombay, ⁹[***] ¹⁰[or in any other town11 or area which the State Government may, by notification in the Official Gazette, specify in this behalf.]

¹²[(2)] ¹³[***] No such power shall be exercised unless and until—

¹⁴[(a)] notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and default has been made in payment of the principal money, or of part thereof, for three months after such service; or

¹⁵[(b)] some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due.

¹⁶[(3)] When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised or improper or irregular exercise or the power shall have his remedy in damages against the person exercising the power.

¹⁷[(4)] The money which is received by the mortgagee, arising from the sale, after discharge of prior encumbrances, if any, to which the sale is not made subject, or after payment into Court under section 57 of a sum to meet any prior encumbrance, shall, in the absence of a contract to the contrary, be held by him in trust to be applied by him, first, in payment of all costs, charges and expenses properly incurred by him as incident to the sale or any attempted sale; and, secondly, in discharge of the mortgage-money and costs and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof.

¹⁸[(5) Nothing in this section or in section 69A applies to powers conferred before the first day of July, 1882.]

¹⁹[***]

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1. Section 69 re-numbered as sub-section (1) of that section, by Act 20 of 1929, sec. 34.

2. Subs. by Act 20 of 1929, sec. 34, for certain words.

3. The words and figures “Notwithstanding anything contained in the Trustees’ and Mortgagees’ Powers Act, 1866″ omitted by Act 48 of 1952, sec. 3 and Sch. II.

4. Ins. by Act 3 of 1885, sec. 5.

5. The words “the L.G., with the previous sanction of the G.G. in C” successively amended by the A.O. 1937 and the A.O. 1950 to read as above.

6. Ins. by Act 20 of 1929, sec. 34.

7. The words “the Secretary of State for India in Council” successively amended by the A.O. 1937 and the A.O. 1950 to read as above.

8. Subs. by Act 20 of 1929, sec. 34, for “is”.

9. The word “Karachi” omitted by the A.O. 1948.

10. The words “or Rangoon” have been successively amended by Acts 6 of 1904, 11 of 1915, 20 of 1929, the A.O. 1937 and the A.O. 1950 to read as above.

11. For notifications relating to the towns of— Ahmedabad, see Gazette of India 1935, Pt. I, p. 936. Bandra, Kurla and Ghatkoper-Kirol, see Gazette of India, 1924, Pt. I, p. 1964. Cawnpore, Allahabad and Lucknow, see Gazette of India, 1933, Pt. I, p. 158. Coimbatore, Mudura, Cocanada and Cochin, see Gazette of India, 1935, Pt. I, p. 526. Delhi (Contonment), see Gazette of India, 1963, Pt. II, Section 3, Sub-section (1), p. 1020.

12. Second paragraph re-numbered as sub-section (2) by Act 20 of 1929, sec. 34.

13. The word “But” omitted by Act 20 of 1929, sec. 34.

14. Clause (1) was lettered (a) by Act 20 of 1929, sec. 34.

15. Clause (2) was lettered (b) by Act 20 of 1929, sec. 34.

16. Third paragraph numbered as sub-section (3) by Act 20 of 1929, sec. 34.

17. Fourth paragraph numbered as sub-section (4) by Act 20 of 1929, sec. 34.

18. Subs. by Act 20 of 1929, sec. 34, for the original fifth paragraph.

19. Original last paragraph omitted by Act 20 of 1929, sec. 34.

Section 69A. Appointment of receiver

¹[69A. Appointment of receiver.—(1) A mortgagee having the right to exercise a power of sale under section 69 shall, subject to the provisions of sub-section (2), be entitled to appoint, by writing signed by him or on his behalf, a receiver of the income of the mortgaged property or any part thereof.

(2) Any person who has been named in the mortgage-deed and is willing and able to act as receiver may be appointed by the mortgagee.

If no person has been so named, or if all persons named are unable or unwilling

to act, or are dead, the mortgagee may appoint any person to whose appointment the mortgagor agrees; failing such agreement, the mortgagee shall be entitled to apply to the Court for the appointment of a receiver, and any person appointed by the Court shall be deemed to have been duly appointed by the mortgagee.

A receiver may at any time be removed by writing signed by or on behalf of the mortgagee and the mortgagor, or by the court on application made by either party and on due cause shown.

A vacancy in the office of receiver may be filled in accordance with the provisions of this sub-section.

(3) A receiver appointed under the powers conferred by this section shall be deemed to be the agent of the mortgagor; and the mortgagor shall be solely responsible for the receiver’s act or defaults, unless the mortgage-deed otherwise provides or unless such acts or defaults are due to the improper intervention of the mortgagee.

(4) The receiver shall have power to demand and recover all the income of which he is appointed receiver, by suit, execution or otherwise, in the name either of the mortgagor or of the mortgagee to the full extent of the interest which the mortgagor could dispose of, and to give valid receipts accordingly for the same, and to exercise any powers which may have been delegated to him by the mortgagee, in accordance with the provisions of this section.

(5) A person paying money to the receiver shall not be concerned to inquire if the appointment of the receiver was valid or not.

(6) The receiver shall be entitled to retain out of any money received by him, for his remuneration, and in satisfaction of all costs, charges and expenses incurred by him as receiver, a commission at such rate not exceeding five per cent, on the gross amount of all money received as is specified in his appointment, and, if no rate is so specified, then at the rate of five per cent. on that gross amount, or at such other rate as the court thinks fit to allow, on application made by him for that purpose.

(7) The receiver shall, if so directed in writing by the mortgagee, insure to the extent, if any, to which the mortgagee might have insured, and keep insured against loss or damage by fire, out of the money received by him, the mortgaged property or any part thereof being of an insurable nature.

(8) Subject to the provisions of this Act as to the application of insurance money, the receiver shall apply all money received by him as follows, namely:—

(i) in discharge of all rents, taxes, land revenue, rates and outgoings whatever affecting the mortgaged property;

(ii) in keeping down all annual sums or other payments, and the interest on all principal sums, having priority to the mortgage in right whereof he is receiver;

(iii) in payment of his commission, and of the premiums on fire, life or other insurances, if any, properly payable under the mortgage-deed or under this Act, and the cost of executing necessary or proper repairs directed in writing by the mortgagee;

(iv) in payment of the interest falling due under the mortgage;

(v) in or towards discharge of the principal money, if so directed in writing by the mortgagee,

and shall pay the residue, of any, of the money received by him to the person who, but for the possession of the receiver, would have been entitled to receive the income of which he is appointed receiver, or who is otherwise entitled to the mortgaged property.

(9) The provisions of sub-section (1) apply only if and as far as a contrary intention is not expressed in the mortgage-deed; and the provisions of sub-sections (3) to (8) inclusive may be varied or extended by the mortgage-deed; and, as so varied or extended, shall, as far as may be, operate in like manner and with all the like incidents, effects and consequences, as if such variations or extensions were contained in the said sub-sections.

(10) Application may be made, without the institution of a suit, to the court for its opinion, advice or direction on any present question respecting the management or administration of the mortgaged property, other than questions of difficulty or importance not proper in the opinion of the court for summary disposal. A copy of such application shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court may think fit.

The costs of every application under this sub-section shall be in the discretion of the Court.

(11) In this section, “the Court” means the Court which would have jurisdiction in a suit to enforce the mortgage.]

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1. Ins. by Act 20 of 1929, sec. 35.

Section 70. Accession to mortgaged property

If, after the date of a mortgage, any accession is made to the mortgaged property, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to such accession.

Illustrations

(a) A mortgages to B a certain field bordering on a river. The field is increased by alluvion. For the purposes of his security, B is entitled to the increase.

(b) A mortgages a certain plot of building land to B and afterwards erects a house on the plot. For the purposes of his security, B is entitled to the house as well as the plot.

Section 71. Renewal of mortgaged lease

When the mortgaged property is a lease ¹[***] and the mortgagor obtains a renewal of the lease, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to the new lease.

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1. The words “for a term of years” omitted by Act 20 of 1929, sec. 36.

Section 72. Right of mortgagee in possession

¹[A mortgagee] may spend such money as is necessary—

²[***]

(b) for ³[the preservation of the mortgaged property] from destruction, forfeiture or sale;

(d) for making his own title thereto good against the mortgagor; and

(e) when the mortgaged property is a renewable lease-hold, for the renewal of the lease, and may, in the absence of a contract to the contrary, add such money to the principal money, at the rate of interest payable on the principal, and, where no such rate is fixed, at the rate of nine per cent. per annum:

⁴[Provided that the expenditure of money by the mortgagee under clause (b) or clause (c) shall not be deemed to be necessary unless the mortgagor has been called upon and has failed to take proper and timely steps to preserve the property or to support the title.]

Where the property is by its nature insurable, the mortgagee may also, in the absence of a contract to the contrary, insure and keep insured against loss or damage by fire the whole or any part of such property, and the premiums paid for any such insurance shall be ⁵[added to the principal money with interest at the same rate as is payable on the principal money or, where no such rate is fixed, at the rate of nine per cent. per annum]. But the amount of such insurance shall not exceed the amount specified in this behalf in the mortgage-deed or (if no such amount is therein specified) two-thirds of the amount that would be required in case of total destruction to reinstate the property insured.

Nothing in this section shall be deemed to authorise the mortgagee to insure when an insurance of the property is kept up by or on behalf of the mortgagor to the amount in which the mortgagee is hereby authorised to insure.

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1. Subs. by Act 20 of 1929, sec. 37, for “When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property, he”.

2. Clause (a) omitted by Act 20 of 1929, sec. 37.

3. Subs. by Act 20 of 1929, sec. 37, for “its preservation”.

4. Ins. by Act 20 of 1929, sec. 37.

5. Subs. by Act 20 of 1929, sec. 37, for certain original words.

Section 73. Right to proceeds of revenue sale or compensation on acquisition

¹[73. Right to proceeds of revenue sale or compensation on acquisition.—(1) Where the mortgaged property or any part thereof or any interest therein is sold owing to failure to pay arrears of revenue or other charges of a public nature or rent due in respect of such property, and such failure did not arise from any default of the mortgagee, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of any surplus of the sale-proceeds remaining after payment of the arrears and of all charges and deductions directed by law.

(2) Where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894 (1 of 1894); or any other enactment for the time being in force providing for the compulsory acquisition of immoveable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation.

(3) Such claims shall prevail against all other claims except those of prior encumbrancers, and may be enforced notwithstanding that the principal money on the mortgage has not become due.]

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1. Subs. by Act 20 of 1929, sec. 38, for the original section.

Section 74. Right of subsequent mortgagee to pay off prior mortgagee

[Rep. by the Transfer of Property (Amendment) Act, 1929 (20 of 1929), sec. 39.]

Section 75. Rights of mesne mortgagee against prior and subsequent mortgagees

[Rep. by the Transfer of Property (Amendment) Act, 1929 (20 of 1929), sec. 39.]

Section 76. Liabilities of mortgagee in possession

When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property,—

(a) he must manage the property as a person of ordinary prudence would manage it if it were his own;

(b) he must use his best endeavours to collect the rents and profits thereof;

(c) he must, in the absence of a contract to the contrary, out of the income of the property, pay the Government revenue, all other charges of a public nature ¹[and all rent] accruing due in respect thereof during such possession, and any arrears of rent in default of payment of which the property may be summarily sold;

(d) he must in the absence of a contract to the contrary, make such necessary repairs of the property as he can pay for out of the rents and profits thereof after deducting from such rents and profits the payments mentioned in clause (c) and the interest on the principal money;

(e) he must not commit any act which is destructive or permanently injurious to the property;

(f) where he has insured the whole or any part of the property against loss or damage by fire, he must, in case of such loss or damage, apply any money which he actually receives under the policy or so much thereof as may be necessary, in reinstating the property, or, if the mortgagor so directs, in reduction or discharge of the mortgage-money;

(g) he must keep clear, full and accurate accounts of all sums received and spent by him as mortgagee, and, at any time during the continuance of the mortgage, give the mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported;

(h) his receipts from the mortgaged property, or, where such property is personally occupied by him, a fair occupation-rent in respect thereof, shall, after deducting the expenses 1[properly incurred for the management of the property and the collection of rents and profits and the other expenses] mentioned in clauses (c) and (d), and interest thereon, be debited against him in reduction of the amount (if any) from time to time due to him on account of interest ²[***] and, so far as such receipts exceed any interest due, in reduction or discharge of the mortgage-money; the surplus, if any, shall be paid to the mortgagor;

(i) when the mortgagor tenders, or deposits in the manner hereinafter provided, the amount for the time being due on the mortgage, the mortgagee must, notwithstanding the provisions in the other clauses of this section, account for his ³[***] receipts from the mortgaged property from the date of the tender or from the earliest time when he could take such amount out of court, as the case may be 1[and shall not be entitled to deduct any amount therefrom on account of any expenses incurred after such date or time in connection with the mortgaged property].

Loss occasioned by his default.—If the mortgagee fails to perform any of the duties imposed upon him by this section, he may, when accounts are taken in pursuance of a decree made under this Chapter, be debited with the loss, if any, occasioned by such failure.

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1. Ins. by Act 20 of 1929, sec. 40.

2. The words “on the mortgage-money” omitted by Act 20 of 1929, sec. 40.

3. The word “gross” omitted by Act 20 of 1929, sec. 40.

Section 77. Receipts in lieu of interest

Nothing in section 76, clauses (b), (d), (g) and (h), applies to cases where there is a contract between the mortgagee and the mortgagor that the receipts from the mortgaged property shall, so long as the mortgagee is in possession of the property, be taken in lieu of interest on the principal money, or in lieu of such interest and defined portions of the principal.

Section 78. Postponement of prior mortgagee

Where, through the fraud, misrepresentation or gross neglect of prior mortgagee, another person has been induced to advance money on the security of the mortgaged property, the prior mortgagee shall be postponed to the subsequent mortgagee.

Section 79. Mortgage to secure uncertain amount when maximum is expressed

If a mortgage made to secure future advances, the performance of an engagement or the balance of a running account, expresses the maximum to be secured thereby, a subsequent mortgage of the same property shall, if made with notice of the prior mortgage, be postponed to the prior mortgage in respect of all advances or debits not exceeding the maximum, though made or allowed with notice of the subsequent mortgage.

Illustration

A mortgages Sultanpur to his bankers, B & Co., to secure the balance of his account with them to the extent of Rs.10,000. A then mortgages Sultanpur to C, to secure Rs.10,000, C having notice of the mortgage to B & Co., and C gives notice to B & Co. of the second mortgage. At the date of the second mortgage, the balance due to B & Co. does not exceed Rs. 5,000. B & Co. subsequently advance to A sums making the balance of the account against him exceed the sum of Rs.10,000. B & Co. are entitled, to the extent of Rs.10,000, to priority over C.

Section 80. Tacking abolished

[Rep. by the Transfer of Property (Amendment) Act, 1929 (20 of 1929), sec. 41.]

Section 81. Marshalling, securities

¹[81. Marshalling, securities.—If the owner of two or more properties mortgages them to one person and then mortgages one or more of the properties to another person, the subsequent mortgagee is, in the absence of a contract to the contrary, entitled to have the prior mortgage-debt satisfied out of the property or properties not mortgaged to him, so far as the same will extend, but not so as to prejudice the rights of the prior mortgagee or of any other person who has for consideration acquired an interest in any of the properties.]

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1. Subs. by Act 20 of 1929, sec. 42, for the original section.

Section 82. Contribution to mortgage-debt

¹[Where property subject to a mortgage belongs to two or more persons having distinct and separate rights of ownership therein, the different shares in or parts of such property owned by such persons are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, and, for the purpose of determining the rate at which each such share or part shall contribute, the value thereof shall be deemed to be its value at the date of the mortgage after deduction of the amount of any other mortgage or charge to which it may have been subject on that date.]

Where, of two properties belonging to the same owner, one is mortgaged to secure one debt and then both are mortgaged to secure another debt, and the former debt is paid out of the former property, each property is, in the absence of a contract to the contrary, liable to contribute rateably to the latter debt after deducting the amount of the former debt from the value of the property out of which it has been paid.

Nothing in this section applies to a property liable under section 81 to the claim of the ²[subsequent] mortgagee.

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1. Subs. by Act 20 of 1929, sec. 43, for the original paragraph.

2. Subs. by Act 20 of 1929, sec. 43, for “second”.

83. Power to deposit in Court money due on mortgage.—

At any time after the principal money ¹[payable in respect of any mortgage has become due] and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage.

Right to money deposited by mortgagor.—The court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may, on presenting a petition (verified in manner prescribed by law² for the verification of plaints) stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, and on depositing in the same Court the mortgage-deed ³[and all documents in his possession or power relating to the mortgaged property], apply for and receive the money, and the mortgage-deed, ⁴[and all such other documents] so deposited shall be delivered to the mortgagor or such other person as aforesaid.

⁵[Where the mortgagee is in possession of the mortgaged property, the court shall, before paying to him the amount so deposited, direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered an acknowledgement in writing that any right in derogation of the mortgagor’s interest transferred to the mortgagee has been extinguished.]

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1. Subs. by Act 20 of 1929, sec. 44, for “has become payable”.

2. See the Code of Civil Procedure, 1908 (5 of 1908), Sch. I, Order VI, rule 15.

3. Subs. by Act 20 of 1929, sec. 44, for “if then in his possession or power”.

4. Ins. by Act 20 of 1929, sec. 44. 5. Ins. by Act 20 of 1929, sec. 44.

Section 84. Cessation of interest

When the mortgagor or such other person as aforesaid has tendered or deposited in Court under section 83 the amount remaining due on the mortgage, interest on the principal money shall cease from the date of the tender or ¹[in the case of a deposit, where no previous tender of such amount has been made] as soon as the mortgagor or such other person as aforesaid has done all that has to be done by him to enable the mortgagee to take such amount out of Court, ²[and the notice required by section 83 has been served on the mortgagee:

Provided that, where the mortgagor has deposited such amount without having made a previous tender thereof and has subsequently withdrawn the same or any part thereof, interest on the principal money shall be payable from the date of such withdrawal.]

Nothing in this section or in section 83 shall be deemed to deprive the mortgagee of his right to interest when there exists a contract that he shall be entitled to reasonable notice before payment or tender of the mortgage-money ³[and such notice has not been given before the making of the tender or deposit, as the case may be].

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1. Ins. by Act 20 of 1929, sec. 45.

2. Subs. by Act 20 of 1929, sec. 45, for “as the case may be”.

3. Added by Act 20 of 1929, sec. 45.

Section 85. Parties to suits for foreclosure, sale and redemption

[Rep. by the Code of Civil Procedure, 1908 (5 of 1908), sec. 156 and Sch. V.]

Section 86.—[Rep. by the Code of Civil Procedure, 1908 (5 of 1908), sec. 156 and Sch. V.]

Section 87.—[Rep. by the Code of Civil Procedure, 1908 (5 of 1908), sec. 156 and Sch. V.]

Section 88.—[Rep. by the Code of Civil Procedure, 1908 (5 of 1908), sec. 156 and Sch. V.]

Section 89.—[Rep. by the Code of Civil Procedure, 1908 (5 of 1908), sec. 156 and Sch. V.]

Section 90.—[Rep. by the Code of Civil Procedure, 1908 (5 of 1908), sec. 156 and Sch. V.]

Section 91. Persons who may sue for redemption.

¹[91. Persons who may sue for redemption.—Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of, the mortgaged property, namely:—

(a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same;

(b) any surety for the payment of the mortgage-debt or any part thereof; or

(c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property.]

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1. Subs. by Act 20 of 1929, sec. 46, for the original section.

Section 92. Subrogation

¹[92. Subrogation.—Any of the persons referred to in section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.

The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems.

A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated.

Nothing in this section shall be deemed to confer a right of subrogation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full.]

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1. Ins. by Act 20 of 1929, sec. 47. Original sections 92 were repealed by Act 5 of 1908, sec. 156 and Sch.V.

Section 93. Prohibition of tacking

¹[93. Prohibition of tacking.—No mortgagee paying off a prior mortgage,whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his original security; and, except in the case provided for by section 79, no mortgagee making a subsequent advance to the mortgagor, whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his security for such subsequent advance.]

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1. Ins. by Act 20 of 1929, sec. 47. Original sections 93 were repealed by Act 5 of 1908, sec. 156 and Sch.V.

Section 94. Rights of mesne mortgagee

¹[94. Rights of mesne mortgagee.—Where a property is mortgaged for successive debts to successive mortgagees, a mesne mortgagee has the same rights against mortgagees posterior to himself as he has against the mortgagor.]

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1. Ins. by Act 20 of 1929, sec. 47. Original sections 94 were repealed by Act 5 of 1908, sec. 156 and Sch.V.

Section 95. Right of redeeming co-mortgagor to expenses

¹[95. Right of redeeming co-mortgagor to expenses.—Where one of several mortgagors redeems the mortgaged property, he shall, in enforcing his right of subrogation under section 92 against his co-mortgagors, be entitled to add to the mortgage money recoverable from them such proportion of the expenses properly incurred in such redemption as is attributable to their share in the property.]

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1. Subs. by Act 20 of 1929, sec. 48, for the original section 95. Original section 96 was repealed by Act 5 of 1908, sec. 156 and Sch.V.

Section 96. Mortgage by deposit of title-deeds

¹[96. Mortgage by deposit of title-deeds.—The provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds.]

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1. Subs. by Act 20 of 1929, sec. 48, for the original section 95. Original section 96 was repealed by Act 5 of 1908, sec. 156 and Sch.V.

Section 97. Application of proceeds

¹[97. Application of proceeds.—[Rep. by the Code of Civil Procedure, 1908 (5 of 1908), sec. 156 and Sch. V.]

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1. For the repealed provisions as re-enacted, see the Code of Civil Procedure, 1908 (5 of 1908), Sch. I, Order XXXIV, rules 12 and 13.

Section 98. Rights and liabilities of parties to anomalous mortgages

98. Rights and liabilities of parties to anomalous mortgages.—In the case of ¹[an anomalous mortgage] the rights and liabilities of the parties shall be determined by their contract as evidenced in the mortgage-deed, and, so far as such contract does not extend, by local usage.

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1. Subs. by Act 20 of 1929, sec. 49, for “a mortgage, not being a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage or an English mortgage or a combination of the first and third, or the second and third, of such forms”.

Section 99. Attachment of mortgaged property

¹[99. Attachment of mortgaged property.—[Rep. by the Code of Civil Procedure, 1908 (5 of 1908), sec.156 and Sch. V.]

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1. For the repealed provisions as re-enacted, see the Code of Civil Procedure, 1908 (5 of 1908), Sch. I, Order XXXIV, rule 14.

Section 100. Charges

Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained ¹[which apply to a simple mortgage shall, so far as may be, apply to such charge].

Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, ²[and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge].

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1. Subs. by Act 20 of 1929, sec. 50, for “as to a mortgagor shall, so far as may be, apply to the owner of such property, and the provisions of sections 81 and 82 shall, so far as may be, apply to the person having such charge”.

2. Added by Act 20 of 1929, sec. 50.

Section 101. No merger in case of subsequent encumbrance

¹[101. No merger in case of subsequent encumbrance.—Any mortgagee of, or person having a charge upon, immoveable property, or any transferee from such mortgagee or charge-holder, may purchase or otherwise acquire the rights in the property of the mortgagor or owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and any subsequent mortgagee of, or person having a subsequent charge upon, the same property; and no such subsequent mortgagee or charge-holder shall be entitled to foreclose or sell such property without redeeming the prior mortgage or charge, or otherwise than subject thereto.]

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1. Subs. by Act 20 of 1929, sec. 51, for the original section.

Section 102. Service or tender on or to agent

Where the person on or to whom any notice or tender is to be served or made under this Chapter does not reside in the district in which the mortgaged property or some part thereof is situate, service or tender on or to an agent holding a general power-of-attorney from such person or otherwise duly authorised to accept such service or tender shall be deemed sufficient.

¹[Where no person or agent on whom such notice should be served can be found or is known] to the person required to serve the notice, the latter person may apply to any court in which a suit might be brought for redemption of the mortgaged property, and such court shall direct in what manner such notice shall be served, and any notice served in compliance with such direction shall be deemed sufficient:

²[Provided that, in the case of a notice required by section 83, in the case of a deposit, the application shall be made to the court in which the deposit has been made.]

³[Where no person or agent to whom such tender should be made can be found or is known] to the person desiring to make the tender, the latter person may deposit ⁴[in any Court in which a suit might be brought for redemption of the mortgaged property] the amount sought to be tendered, and such deposit shall have the effect of a tender of such amount.

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1. Subs. by Act 20 of 1929, sec. 52, for “Where the person or agent on whom such notice should be served cannot be found in the said district, or is unknown”.

2. Ins. by Act 20 of 1929, sec. 52.

3. Subs. by Act 20 of 1929, sec. 52, for “Where the person or agent to whom such tender should be made cannot be found within the said district or is unknown”.

4. Subs. by Act 20 of 1929, sec. 52, for “in such Court as last aforesaid”.

Section 103. Notice, etc., to or by person incompetent to contract

Where, under the provisions of this Chapter, a notice is to be served on or by, or a tender or deposit made or accepted or taken out of court by, any person incompetent to contract, such notice may be served ¹[on or by] or tender or deposit made, accepted or taken, by the legal curator of the property of such person; but where there is no such curator, and it is requisite or desirable in the interest of such person that a notice should be served or a tender or deposit made under the provisions of this Chapter, application may be made to any court in which a suit might be brought for the redemption of the mortgage to appoint a guardian ad litem for the purpose of serving or receiving service of such notice, or making or accepting such tender, or making or taking out of court such deposit, and for the performance of all consequential acts which could or ought to be done by such person if he were competent to contract²; and the provisions of ³[order XXXII in the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908)] shall, so far as may be, apply to such application and to parties thereto and to the guardian appointed thereunder.

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1. Ins. by Act 20 of 1929, sec. 53.

2. As to persons competent to contract, see sections 11 and 12 of the Indian Contract Act, 1872 (9 of 1872).

3. Subs. by Act 20 of 1929, sec. 53, for “Chapter XXXI of the Code of Civil Procedure”.

Section 104. Power to make rules

The High Court may, from time to time, make rules consistent with this Act for carrying out, in itself and in the Courts of Civil Judicature subject to its superintendence, the provisions contained in this Chapter.

Section 105. Lease defined

A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

Lessor, lessee, premium and rent defined.—The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.

Section 106. Duration of certain leases in absence of written contract or local usage

¹[106. Duration of certain leases in absence of written contract or local usage.—(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice.

(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.

(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.

(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.]

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1. Subs. by Act 3 of 2003, sec. 2, for section 106 (w.e.f. 31-12-2002).

Section 106, before substitution, stood as under: “106. Duration of certain leases in absence of written contract or local usage.—

In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice expiring with the end of a year of the tenancy; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice expiring with the end of a month of the tenancy.

Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property”.

Section 107. Leases how made

¹107. Leases how made.—A lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.

²[All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

³[Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:]

Provided that the State Government may⁴[***] from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.]

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1. As to limitation to the territorial operation of section 107, see section 1, supra, section 107 extends to every cantonment—see section 287 of the Cantonments Act, 1924 (2 of 1924).

2. Subs. by Act 6 of 1904, sec. 5, for the original paragraph.

3. Ins. by Act 20 of 1929, sec. 55.

4. The words “with the previous sanction of the Governor General in Council” omitted by the A.O. 1937.

Section 108. Rights and liabilities of lessor and lessee

In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:—

(A) Rights and Liabilities of the Lessor

(a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover;

(b) the lessor is bound on the lessee’s request to put him in possession of the property;

(c) the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption.

The benefit of such contract shall be annexed to and go with the lessee’s interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

(B) Rights and Liabilities of the Lessee

(d) If during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease;

(e) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void:

Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision;

(f) if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor;

(g) if the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor;

(h) the lessee may ¹[even after the determination of the lease] remove, at any time ²[whilst he is in possession of the property leased but not afterwards] all things which he has attached to the earth; provided he leaves the property in the state in which he received it;

(i) when a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free ingress and egress to gather and carry them;

(j) the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease;

Nothing in this clause shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee;

(k) the lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take, of which the lessee is, and the lessor is not, aware, and which materially increases the value of such interest;

(l) the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf;

(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left;

(n) if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor’s rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor;

(o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell ³[or sell] timber, pull down or damage buildings ³[belonging to the lessor, or] work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto;

(p) he must not, without the lessor’s consent, erect on the property any permanent structure, except for agricultural purposes;

(q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property.

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1. Ins. by Act 20 of 1929, sec. 56.

2. Subs. by Act 20 of 1929, sec. 56, for “during the continuance of the lease”.

3. Ins. by Act 20 of 1929, sec. 56.

Section 109. Rights of lessor’s transferee

If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:

Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.

The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.

Section 110. Exclusion of day on which term commences

Where the time limited by a lease of immoveable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease.

Duration of lease for a year.—Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences.

Option to determine lease.—Where the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee, and not the lessor, shall have such option.

Section 111. Determination of lease

A lease of immoveable property determines—

(a) by efflux of the time limited thereby;

(b) where such time is limited conditionally on the happening of some

event—by the happening of such event;

(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event—by the happening of such event;

(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;

(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;

(f) by implied surrender;

(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter ¹[* * *]; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; ²[or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in³[any of these cases] the lessor or his transferee⁴[gives notice in writing to the lessee of] his intention to determine the lease;

(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.

Illustration to clause (f)

A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon.

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1. The words “or the lease shall become void” omitted by Act 20 of 1929, sec. 57.

2. Ins. by Act 20 of 1929, sec. 57.

3. Subs. by Act 20 of 1929, sec. 57, for “either case”.

4. Subs. by Act 20 of 1929, sec. 57, for “does some act showing”.

Section 112. Waiver of forfeiture

A forfeiture under section 111, clause (g) is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting:

Provided that the lessor is aware that the forfeiture has been incurred:

Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.

Section 113. Waiver of notice to quit

A notice given under section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.

Illustrations

(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.

(b) A, the lessor, gives B, the lessee; notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.

Section 114. Relief against forfeiture for non-payment of rent

Where a lease of immoveable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.

Section 114A. Relief against forfeiture in certain other cases

¹[114A. Relief against forfeiture in certain other cases.—Where a lease of immoveable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing—

(a) specifying the particular breach complained of; and

(b) if the breach is capable of remedy, requiring the lessee to remedy the breach, and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy.

Nothing in this section shall apply to an express condition against the assigning, under-letting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of non-payment of rent.]

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1. Ins. by Act 20 of 1929, sec. 58.

Section 115. Effect of surrender and forfeiture on under-leases

The surrender, express or implied, of a lease of immoveable property does not prejudice an under-lease of the property or any part thereof previously granted by the lessee, on terms and conditions substantially the same (except as regards the amount of rent) as those of the original lease; but, unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on, the under-lessee shall be respectively payable to and enforceable by the lessor.

The forfeiture of such a lease annuls all such under-leases, except where such forfeiture has been procured by the lessor in fraud of the under-lessees, or relief against the forfeiture is granted under section 114.

Section 116. Effect of holding over

If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.

Illustrations

(a) A lets a house to B for five years. B underlets the house to C at a monthly rent of Rs. 100. The five years expire, but C continues in possession of the house and pays the rent to A. C’s lease is renewed from month to month.

(b) A lets a farm to B for the life of C. C dies, but B continues in possession with A’s assent. B’s lease is renewed from year to year

Section 117. Exemption of leases for agricultural purposes

None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government ¹[***] may by notification published in the Official Gazette declare all or any of such provisions to be so applicable ²[in the case of all or any of such leases], together with, or subject to, those of the local law, if any, for the time being in force.

Such notification shall not take effect until the expiry of six months from the date of its publication.

———————-

1. The words “with the previous sanction of the Governor General in Council” omitted by Act 38 of 1920, sec. 2 and Sch. I. 2. Ins. by Act 6 of 1904, sec. 6.

Section 118. “Exchange” defined

When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “exchange”.

A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

Section 119. Right of party deprived of thing received in exchange

¹[119. Right of party deprived of thing received in exchange.—If any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, then, unless a contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration.]

———————-

1. Subs. by Act 20 of 1929, sec. 59, for the original section.

Section 120. Rights and liabilities of parties

Save as otherwise provided in this Chapter, each party has the rights and is subject to the liabilities of a seller as to that which he gives, and has the rights and is subject to the liabilities of a buyer as to that which he takes.

Section 121. Exchange of money

On an exchange of money, each party thereby warrants the genuineness of the money given by him.

Section 122. “Gift” defined

“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.

If the donee dies before acceptance, the gift is void.

Section 123. Transfer how effected

¹123. Transfer how effected.—For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered.

———————-

1. As to limitation to the territorial operation of section 123, see section 1, supra, section 123 extends to every cantonment—see section 287 of the Cantonments Act, 1924 (2 of 1924).

Section 124. Gift of existing and future property

A gift comprising both existing and future property is void as to the latter.

Section 125. Gift to several of whom one does not accept

A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted

Section 126. When gift may be suspended or revoked

The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.

A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.

Save as aforesaid, a gift cannot be revoked.

Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.

Illustrations

(a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A’s lifetime. A may take back the field.

(b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to Rs. 10,000, which continue to belong to A.

Section 127. Onerous gifts

Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not burdened by an obligation, the donee can take nothing by the gift unless he accepts it fully.

Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the doneee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous.

Onerous gift to disqualified person.—A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.

Illustrations

(a) A shares in X, prosperous joint stock company, and also shares in Y, a joint stock company in difficulties. Heavy calls are expected in respect of the shares in Y. A gives B all his shares in joint stock companies. B refuses to accept the shares in Y. He cannot take the shares in X.

(b) A, having a lease for a term of years of a house at a rent which he and his representatives are bound to pay during the term, and which is more than the house can be let for, gives to B the lease, and also, as a separate and independent transaction, a sum of money. B refuses to accept the lease. He does not by this refusal forfeit the money.

Section 128. Universal donee

Subject to the provisions of section 127, where a gift consists of the donor’s whole property, the donee is personally liable for all the debts due by ¹[and liabilities of] the donor at the time of the gift to the extent of the property comprised therein.

———————-

1. Ins. by Act 20 of 1929, sec. 60.

Section 129. Saving of donations mortis causa and Muhammadan Law

129. Saving of donations mortis causa and Muhammadan Law.—Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law ¹[***].

———————-

1. The words and figures “or, save as provided by section 123, any rule of Hindu or Buddhist law” omitted by Act 20 of 1929, sec. 61.

Section 130. Transfer of actionable claim

(1) The transfer of an actionable claim ¹[whether with or without consideration] shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent, ²[***] shall be complete and effectual upon the execution of such instruments, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not:

Provided that every dealing with the debt or other actionable claim by the debtor or other person from or against whom the transferor would, but for such instrument of transfer as aforesaid, have been entitled to recover or enforce such debt or other actionable claim, shall (save where the debtor or other person is a party to the transfer or has received express notice thereof as hereinafter provided) be valid as against such transfer.

(2) The transferee of an actionable claim may, upon the execution of such instrument of transfer as aforesaid, sue or institute proceedings for the same in his own name without obtaining the transferor’s consent to such suit or proceeding and without making him a party thereto.

Exception.—Nothing in this section applies to the transfer of a marine or fire policy of insurance ³[or affects the provisions of section 38 of the Insurance Act, 1938 (4 of 1938)].

Illustrations

(i) A owes money to B, who transfers the debt to C. B then demands the debt from A, who, not having received notice of the transfer, as prescribed in section 131, pays B. The payment is valid, and C cannot sue A for the debt.

(ii) A effects a policy on his own life with an Insurance Company and assigns it to a Bank for securing the payment of an existing or future debt. If A dies, the Bank is entitled to receive the amount of the policy and to sue on it without the concurrence of A’s executor, subject to the proviso in sub-section (1) of section 130 and to provisions of section 132.

———————-

1. Ins. by Act 20 of 1929, sec. 62.

2. The words and figures “and notwithstanding anything contained in section 123” ins. by Act 38 of 1925, sec. 2 and omitted by Act 20 of 1929, sec. 62.

3. Added by Act 4 of 1938, sec. 121 (w.e.f. 1-7-1939).

Section 130A. Transfer of policy of marine insurance

¹[130A. Transfer of policy of marine insurance.—[Rep. by the Marine Insurance Act, 1963 (11 of 1963), sec. 92 (w.e.f. 1-8-1963)].]

———————-

1. Ins. by Act 6 of 1944, sec. 2.

Section 131. Notice to be in writing, signed

Every notice of transfer of an actionable claim shall be in writing, signed by the transferor or his agent duly authorised in this behalf, or, in case the transferor refuses to sign, by the transferee or his agent, and shall state the name and address of the transferee.

Section 132. Liability of transferee of actionable claim

The transferee of an actionable claim shall take it subject to all the liabilities and equities and to which the transferor was subject in respect thereof at the date of the transfer.

Illustrations

(i) A transfers to C a debt due to him by B, A being then indebted to B. C sues B for the debt due by B to A. In such suit B is entitled to set off the debt due by A to him; although C was unaware of it at the date of such transfer.

(ii) A executed a bond in favour of B under circumstances entitling the former to have it delivered up and cancelled. B assigns the bond to C for value and without notice of such circumstances. C cannot enforce the bond against A.

Section 133. Warranty of solvency of debtor.

Where the transferor of a debt warrants the solvency of the debtor, the warranty, in the absence of a contract to the contrary, applies only to his solvency at the time of the transfer, and is limited, where the transfer is made for consideration, to the amount or value of such consideration.

Section 134. Mortgaged debt

Where a debt is transferred for the purpose of securing an existing or future debt, the debt so transferred, if received by the transferor or recovered by the transferee, is applicable, first, in payment of the costs of such recovery; secondly, in or towards satisfaction of the amount for the time being secured by the transfer; and the residue, if any, belongs to the transferor or other person entitled to receive the same.

Section 135. Assignment of rights under policy of insurance against fire

¹[135. Assignment of rights under policy of insurance against fire.—Every assignee by endorsement or other writing, of a policy of insurance against fire, in whom the property in the subject insured shall be absolutely vested at the date of the assignment, shall have transferred and vested in him all rights of suit as if the contract contained in the policy has been made with himself.]

———————-

1. Subs. by Act 6 of 1944, sec. 3, for the original section.

135A. Assignment of rights under policy of marine insurance.—

¹[135A. Assignment of rights under policy of marine insurance.—[Rep. by the Marine Insurance Act, 1963 (11 of 1963), sec.92, (w.e.f. 1-8-1963)].]

———————-

1. Section 135A ins. by Act 6 of 1944, sec. 4.

Section 136. Incapacity of officers connected with Courts of Justice

No judge, legal practitioner or officer connected with any Court of Justice shall buy or traffic in, or stipulate for, or agree to receive any share of, or interest in, any actionable claim, and no Court of Justice shall enforce, at his instance, or at the instance of any person claiming by or through him, any actionable claim so dealt with by him as aforesaid.

Section 137. Saving of negotiable instruments, etc.

Nothing in the foregoing sections of this Chapter applies to stocks, shares or debentures, or to instruments which are for the time being, by law or custom, negotiable, or to any mercantile document of title to goods.

Explanation.—The expression “mercantile document of title to goods” includes a bill of lading, dock-warrant, warehouse-keeper’s certificate, railway receipt, warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented.

THE SCHEDULE

(A) STATUTES


Year and Chapter	Subject	Extent of repeal

27 Hen. VIII c. 10	Uses	The Whole.
13 Eliz., c. 5	Fraudulent conveyances	The Whole.
27 Eliz., c. 4	Fraudulent conveyances	The Whole.
4 Wm and marry, c. 16	Clandestine mortgages	The Whole.

(B) ACT OF THE GOVERNOR GENERAL IN COUNCIL


Number and Year	Subject	Extent of repeal

X of 1842	Lease and re-lease	The Whole
XXXI of 1854	Modes of conveying land	Section117
XI of 1855	Mesne profit and improvement	Section 1; in the title, the word “to mesne profits and”, and in the preamble “to limit the liability for mesne profits and”
XXVII of 1866	Indian Trustee Act	Section 31.
V of 1872	Punjab Laws Act	So fas as it related to Bengal Regulations 1 of 1798 and XVII of 1806
XX of 1875	Central Provinvces Laws Act	So fas as it related to Bengal Regulations 1 of 1798 and XVII of 1806
XVIII of 1876	Oudh Laws Act	So fas as it related to Bengal Regulations XVII of 1806
1 of 1877	Specific Relief	In section 35 and 36, the word “in writing”.

(C) REGULATIONS


Number and years	Subject	Extent of repeal

Bengal Regulation 1 of 1798	Conditional Sale	The Whole Regulation

Bengal Regulation XVII of 1806	Redemption	The Whole Regulation
Bombay Regulation V of 1827	Acknowledgement of debts; interest;
	Mortgagees in possession	Section 15

Foreign Exchange Management Act

November 30, 2014

Section1. Short title, extent, application, and commencement

ACT NO. 42 OF 1999

[29th December, 1999.]

An Act to consolidate and amend the law relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange market in India. BE it enacted by Parliament in the Fiftieth Year of the Republic of India as follows:-

1. This Act may be called the Foreign Exchange Management Act, 1999.

2. It extends to the whole of India.

3. It shall also apply to all branches, offices and agencies outside India owned or controlled by a person resident in India and also to any contravention there under committed outside India by any person to whom this Act applies.

4. It shall come into force on such date¹as the Central Government may, by notification in the Official Gazette, appoint:

Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

————————–

1. Came into force on 1-6-2000, vide G.S.R. 371(E), dated 1st May, 2000.

Section2. Definitions

In this Act, unless the context otherwise requires,-

(a) “Adjudicating Authority” means an officer authorised under subsection

(1) of section 16;

(b) “Appellate Tribunal” means the Appellate Tribunal for Foreign

Exchange established under section 18;

(c) “Authorised person” means an authorised dealer, money changer, off-shore banking unit or any other person for the time being authorised under sub-section (1) of section 10 to deal in foreign exchange or foreign securities;

(d) “Bench” means a Bench of the Appellate Tribunal;

(e) “Capital account transaction” means a transaction which alters the assets or liabilities, including contingent liabilities, outside India of persons resident in India or assets or liabilities in India of persons resident outside India, and includes transactions referred to in subsection (3) of section 6;

(f) “Chairperson” means the Chairperson of the Appellate Tribunal;

(g) “Chartered accountant” shall have the meaning assigned to it in clause

(b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949);

(h) “Currency” includes all currency notes, postal notes, postal orders, money orders, cheques, drafts, travelers cheques, letters of credit, bills of exchange and promissory notes, credit cards or such other similar instruments, as may be notified by the Reserve Bank;

(i) “Currency notes” means and includes cash in the form of coins and bank notes;

(j) “Current account transaction” means a transaction other than a capital account transaction and without prejudice to the generality of the foregoing such transaction includes,-

(i) Payments due in connection with foreign trade, other current business, services, and short-term banking and credit facilities in the ordinary course of business,

(ii) Payments due as interest on loans and as net income from investments,

(iii) Remittances for living expenses of parents, spouse and children residing abroad, and

(iv) Expenses in connection with foreign travel, education and medical care of parents, spouse and children;

(k) “Director of Enforcement” means the Director of Enforcement appointed under sub-section (1) of section 36;

(l) “Export”, with its grammatical variations and cognate expressions, means,-

(i) The taking out of India to a place outside India any goods, (ii) Provision of services from India to any person outside India;

(m) “Foreign currency” means any currency other than Indian currency;

(n) “Foreign exchange” means foreign currency and includes,-

(i) Deposits, credits and balances payable in any foreign currency,

(ii) Drafts, travelers cheques, letters of credit or bills of exchange, expressed or drawn in Indian currency but payable in any foreign currency,

(iii) Drafts, travelers cheques, letters of credit or bills of exchange drawn by banks, institutions or persons outside India, but payable in Indian currency;

(o) “Foreign security” means any security, in the form of shares, stocks, bonds, debentures or any other instrument denominated or expressed in foreign currency and includes securities expressed in foreign currency, but where redemption or any form of return such as interest or dividends is payable in Indian currency;

(p) “Import”, with its grammatical variations and cognate expressions, means bringing into India any goods or services;

(q) “Indian currency” means currency which is expressed or drawn in Indian rupees but does not include special bank notes and special one rupee notes issued under section 28A of the Reserve Bank of India Act, 1934 (2 of 1934);

(r) “Legal practitioner” shall have the meaning assigned to it in clause (i) of sub-section (1) of section 2 of the Advocates Act, 1961 (25 of 1961);

(s) “Member” means a Member of the Appellate Tribunal and includes the Chairperson thereof;

(t) “Notify” means to notify in the Official Gazette and the expression notification” shall be construed accordingly;

(u) “Person” includes-

An individual, A Hindu undivided family,

(i) A company,

(ii) A firm,

(iii) An association of persons or a body of individuals, whether incorporated or not,

(iv) Every artificial juridical person, not falling within any of the preceding sub-clauses, and

(v) Any agency, office or branch owned or controlled by such person;

(v) “Person resident in India” means-

(v) A person residing in India for more than one hundred and eighty-two days during the course of the preceding financial year but does not include;-

(A) A person who has gone out of India or who stays outside India, in either case-

(a) For or on taking up employment outside India, or

(b) For carrying on outside India a business or vocation outside India, or

(c) For any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period;

(B) A person who has come to or stays in India, in either case, otherwise than-

(a) For or on taking up employment in India, or

(b) For carrying on in India a business or vocation India, or

(c) For any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period;

(i) Any person or body corporate registered or incorporated in India,

(ii) An office, branch or agency in India owned or controlled by a person resident outside India,

(iii) An office, branch or agency outside India owned or controlled by a person resident in India;

(w) “Person resident outside India” means a person who is not resident in India;

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

(y) “Repatriate to India” means bringing into India the realised foreign exchange and-

(i) The selling of such foreign exchange to an authorised person in India in exchange for rupees; or (ii) The holding of realised amount in an account with anauthorised person in India to the extent notified by the Reserve Bank, and includes use of the realised amount for discharge of a debt or liability denominated in foreign exchange and the expression “repatriation” shall be construed accordingly;

(z) “Reserve Bank” means the Reserve Bank of India constituted under sub-section (1) of section 3 of the Reserve Bank of India Act, 1934 (2 of 1934);

(za) “Security” means shares, stocks, bonds and debentures, Government securities as defined in the Public Debt Act, 1944 (18 of 1944), savings certificates to which the Government Savings Certificates Act, 1959 (46 of 1959) applies, deposit receipts in respect of deposits of securities and units of the Unit Trust of India established under sub-section (1) of section 3 of the Unit Trust of India Act, 1963 (52 of 1963) or of any mutual fund and includes certificates of title to securities, but does not include bills of exchange or promissory notes other than Government promissory notes or any other instruments which may be notified by the Reserve Bank as security for the purposes of this Act;

(zb) “Service” means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, medical assistance, legal assistance, chit fund, real estate, transport, processing, supply of electrical or other energy, boarding or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

(zc) “Special Director (Appeals)” means an officer appointed under section 1 8;

(zd) “Specify” means to specify by regulations made under this Act and the expression “specified” shall be construed accordingly;

(ze) “Transfer” includes sale, purchase, exchange, mortgage, pledge, gift, loan or any other form of transfer of right, title, possession or lien.

Section3. Dealing in foreign exchange, etc.

Save as otherwise provided in this Act, rules or regulations made thereunder, or with the general or special permission of the Reserve Bank, no person shall-

(a) Deal in or transfer any foreign exchange or foreign security to any person not being an authorised person; (b) Make any payment to or for the credit of any person resident outside India in any manner;

(c) Receive otherwise through an authorised person, any payment by order or on behalf of any person resident outside India in any manner;

Explanation.- For the purpose of this clause, where any person in, or resident in, India receives any payment by order or on behalf of any person resident outside India through any other person (including an authorised person) without a corresponding inward remittance from any place outside India, then, such person shall be deemed to have received such payment otherwise than through an authorised person;

(d) Enter into any financial transaction in India as consideration for. or in association with acquisition or creation or transfer of a right to acquire, any asset outside India by any person.

Explanation. – For the purpose of this clause, “financial transaction” means making any payment to, or for the credit of any person, or receiving any payment for, by order or on behalf of any person, or drawing, issuing or negotiating any bill of exchange or promissory note, or transferring any security or acknowledging any debt.

Section4. Holding of foreign exchange, etc.

Save as otherwise provided in this Act, no person resident in India shall acquire, hold, own, possess or transfer any foreign exchange, foreign security or any immovable property situated outside India

Section5. Current account transactions

Any person may sell or draw foreign exchange to or from an authorised person if such sale or drawal is a current account transaction:

Provided that the Central Government may, in public interest and in consultation with the Reserve Bank, impose such reasonable restrictions for current account transactions as may be prescribed

Section 6. Capital account transactions

(1) Subject to the provisions of sub-section (2), any person may sell or draw foreign exchange to or from an authorised person for a capital account transaction.

(2) The Reserve Bank may, in consultation with the Central Government, specify-

(a) Any class or classes of capital account transactions which are permissible;

(b) The limit up to which foreign exchange shall be admissible for such transactions:

Provided that the Reserve Bank shall not impose any restriction on the drawal of foreign exchange for payments due on account of amortization of loans or for depreciation of direct investments in the ordinary course of business.

(3) Without prejudice to the generality of the provisions of sub-section (2), the Reserve Bank may, by regulations prohibit, restrict or regulate the following,-

(a) Transfer or issue of any foreign security by a person resident in India;

(b) Transfer or issue of any security by a person resident outside India;

(c) Transfer or issue of any security or foreign security by any branch, office or agency in India of a person resident outside India;

(d) Any borrowing or lending in foreign exchange in whatever form or by whatever name called;

(e) Any borrowing or lending in rupees in whatever form or by whatever name called between a person resident in India and a person resident outside India;

(f) Deposits between persons resident in India and persons resident outside India;

(g) Export, import or holding of currency or currency notes;

(h) Transfer of immovable property outside India, other than a lease not exceeding five years, by a person resident in India;

(i) Acquisition or transfer of immovable property in India, other than a lease not exceeding five years, by a person resident outside India;

(j) Giving of a guarantee or surety in respect of any debt, obligation or other liability incurred,-

(i) By a person resident in India and owed to a person resident outside India; or

(ii) By a person resident outside India.

(4) A person resident in India may hold, own, transfer or invest in foreign currency, foreign security or any immovable property situated outside India if such currency, security or property was acquired, held or owned by such person when he was resident outside India or inherited from a person who was resident outside India.

(5) A person resident outside India may hold, own, transfer or invest in Indian currency, security or any immovable property situated in India if such currency, security or property was acquired, held or owned by such person when he was resident in India or inherited from a person who was resident in India.

(6) Without prejudice to the provisions of this section, the Reserve Bank may by regulation prohibit, restrict, or regulate establishment in India of a branch, office or other place of business by a person resident outside India, for carrying on any activity relating to such branch, office or other place of business.

Section7. Export of goods and services

(1) Every exporter of goods shall; -

(a) Furnish to the Reserve Bank or to such other authority a declaration in such form and in such manner as may be specified, containing true and correct material particulars, including the amount representing the full export value or, if the full export value of the goods is not ascertainable at the time of export, the value which the exporter, having regard to the prevailing market conditions, expects to receive on the sale of the goods in a market outside India;

(b) Furnish to the Reserve Bank such other information as may be required by the Reserve Bank for the purpose of ensuring the realisation of the export proceeds by such exporter.

(2) The Reserve Bank may, for the purpose of ensuring that the full export value of the goods or such reduced value of the goods as the Reserve Bank determines, having regard to the prevailing market conditions, is received without any delay, direct any exporter to comply with such requirements as it deems fit.

(3) Every exporter of services shall furnish to the Reserve Bank or to such other authorities a declaration in such form and in such manner as may be specified, containing the true and correct material particulars in relation to payment for such services.

Section 8. Realisation and repatriation of foreign exchange

Save as otherwise provided in this Act, where any amount of foreign exchange is due or has accrued to any person resident in India such person shall take all reasonable steps to realise and repatriate to India such foreign exchange within such period and in such manner as may be specified by the Reserve Bank.

Section 9. Exemption from realisation and repatriation in certain cases

The provisions of sections 4 and 8 shall not apply to the following, namely:-

(a) Possession of foreign currency or foreign coins by any person up to such limit as the Reserve Bank may specify;

(b) Foreign currency account held or operated by such person or class of persons and the limit up to which the Reserve Bank may specify;

(c) Foreign exchange acquired or received before the 8th day of July, 1947 or any income arising or accruing thereon which is held outside India by any person in pursuance of a general or special permission granted by the Reserve Bank;

(d) Foreign exchange held by a person resident in India up to such limit as the Reserve Bank may specify, if such foreign exchange was acquired by way of gift or inheritance from a person referred to in clause (c), including any income arising there from;

(e) Foreign exchange acquired from employment, business, trade, vocation, services, honorarium, gifts, inheritance or any other legitimate means up to such limit as the Reserve Bank may specify; and

(f) Such other receipts in foreign exchange as the Reserve Bank may specify.

Section 10. Authorised person

(1) The Reserve Bank may, on an application made to it in this behalf, authorise any person to be known as authorised person to deal in foreign exchange or in foreign securities, as an authorised dealer, money changer or off-shore banking unit or in any other manner as it deems fit.

(2) An authorisation under this section shall be in writing and shall be subject to the conditions laid down therein.

(3) An authorisation granted under sub-section (1) may be revoked by the Reserve Bank at any time if the Reserve Bank is satisfied that-

(a) It is in public interest so to do; or (b) The authorised person has failed to comply with the condition subject to which the authorisation was granted or has contravened any of the provisions of the Act or any rule, regulation, notification, direction or order made there under:

Provided that no such authorisation shall be revoked on any ground referred to in clause (b) unless the authorised person has been given a reasonable opportunity of making a representation in the matter.

(4) An authorised person shall, in all his dealings in foreign exchange or foreign security comply with such general or special directions or orders as the Reserve Bank may, from time to time, think fit to give, and, except with the previous permission of the Reserve Bank, an authorised person shall not engage in any transaction involving any foreign exchange or foreign security which is not in conformity with the terms of his authorisation under this section.

(5) An authorised person shall, before under-taking any transaction in foreign exchange on behalf of any person, require that person to make such declaration and to give such information as will reasonably satisfy him that the transaction will not involve, and is not designed for the purpose of any contravention or evasion of the provisions of this Act or of any rule, regulation, notification, direction or order made thereunder, and where the said person refuses to comply with any such requirement or makes only unsatisfactory compliance therewith, the authorised person shall refuse in writing to undertake the transaction and shall, if he has reason to believe that any such contravention or evasion as aforesaid is contemplated by the person, report the matter to the Reserve Bank.

(6) Any person, other than an authorised person, who has acquired or purchased foreign exchange for any purpose mentioned in the declaration made by him to authorised person under sub-section (5) does not use it for such purpose or does not surrender it to authorised person within the specified period or uses the foreign exchange so acquired or purchased for any other purpose for which purchase or acquisition of foreign exchange is not permissible under the provisions of the Act or the rules or regulations or direction or order made there under shall be deemed to have committed contravention of the provisions of the Act for the purpose of this section.

Section 11. Reserve Bank’s powers to issue directions to authorised person

(1) The Reserve Bank may, for the purpose of securing compliance with the provisions of this Act and of any rules, regulations, notifications or directions made there under, give to the authorised persons any direction in regard to making of payment or the doing or desist from doing any act relating to foreign exchange or foreign security.

(2) The Reserve Bank may, for the purpose of ensuring the compliance with the provisions of this Act or of any rule, regulation, notification, direction, or order made there under, direct any authorised person to furnish such information, in such manner, as it deems fit.

(3) Where any authorised person contravenes any direction given by the Reserve Bank under this Act or fails to file any return as directed by the Reserve Bank, the Reserve Bank may, after giving reasonable opportunity of being heard, impose on the authorised person a penalty which may extend to ten thousand rupees and in the case of continuing contravention with an additional penalty which may extend to two thousand rupees for every day during which such contravention continues.

Section 12. Power of Reserve Bank to inspect authorised person

(1) The Reserve Bank may, at any time, cause an inspection to be made, by any officer of the Reserve Bank specially authorised in writing by the Reserve Bank in this behalf, of the business of any authorised person as may appear to it to be necessary or expedient for the purpose of-

(a) Verifying the correctness of any statement, information or particulars furnished to the Reserve Bank;

(b) Obtaining any information or particulars which such authorised person has failed to furnish on being called upon to do so;

(c) Securing compliance with the provisions of this Act or of any rules, regulations, directions or orders made thereunder.

(2) It shall be the duty of every authorised person, and where such person is a company or a firm, every director, partner or other officer of such company or firm, as the case may be, to produce to any officer making an inspection under sub-section (1), such books, accounts and other documents in his custody or power and to furnish any statement or information relating to the affairs of such person, company or firm as the said officer may require within such time and in such manner as the said officer may direct.

Section 13. Penalties

(1) If any person contravenes any provision of this Act, or contravenes any rule, regulation, notification, direction or order issued in exercise of the powers under this Act, or contravenes any condition subject to which an authorisation is issued by the Reserve Bank, he shall, upon adjudication, be liable to a penalty up to thrice the sum involved in such contravention where such amount is quantifiable, or up to two lakh rupees where the amount is not quantifiable, and where such contravention is a continuing one, further penalty which may extend to five thousand rupees for every day after the first day during which the contravention continues.

(2) Any Adjudicating Authority adjudging any contravention under sub-section (1), may, if he thinks fit in addition to any penalty which he may impose for such contravention direct that any currency, security or any other money or property in respect of which the contravention has taken place shall be confiscated to the Central Government and further direct that the foreign exchange holdings, if any of the persons committing the contraventions or any part thereof, shall be brought back into India or shall be retained outside India in accordance with the directions made in this behalf.

Explanation.- For the purposes of this sub-section, “property” in respect of which contravention has taken place, shall include ;-

(a) Deposits in a bank, where the said property is converted into such deposits;

(b) Indian currency, where the said property is converted into that currency; and (c) Any other property which has resulted out of the conversion of that property

Section 14. Enforcement of the orders of adjudicating authority

(1) Subject to the provisions of sub-section (2) of section 19, if any person fails to make full payment of the penalty imposed on him under section 13 within a period of ninety days from the date on which the notice for payment of such penalty is served on him, he shall be liable to civil imprisonment under this section.

(2) No order for the arrest and detention in civil prison of a defaulter shall be made unless the Adjudicating Authority has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause why he should not be committed to the civil prison, and unless the Adjudicating Authority, for reasons in writing, is satisfied

(a) That the defaulter, with the object or effect of obstructing the recovery of penalty, has after the issue of notice by the Adjudicating Authority, dishonestly transferred, concealed, or removed any part of his property, or

(b) That the defaulter has, or has had since the issuing of notice by the Adjudicating Authority, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.

(3) Notwithstanding anything contained in sub-section (1), a warrant for the arrest of the defaulter may be issued by the Adjudicating Authority if the Adjudicating Authority is satisfied, by affidavit or otherwise, that with the object or effect of delaying the execution of the certificate the defaulter is likely to abscond or leave the local limits of the jurisdiction of the Adjudicating Authority.

(4) Where appearance is not made pursuant to a notice issued and served under sub-section (1), the Adjudicating Authority may issue a warrant for the arrest of the defaulter.

(5) A warrant of arrest issued by the Adjudicating Authority under sub-section (3) or sub-section (4) may also be executed by any other Adjudicating Authority within whose jurisdiction the defaulter may for the time being be found.

(6) Every person arrested in pursuance of a warrant of arrest under this section shall be brought before the Adjudicating Authority issuing the warrant as soon as practicable and in any event within twenty-four hours of his arrest (exclusive of the time required for the journey):

Provided that, if the defaulter pays the amount entered in the warrant of arrest as due and the costs of the arrest to the officer arresting him such officer shall at once release him.

Explanation. – For the purpose of this sub-section, where the defaulter is a Hindu undivided family, the karta thereof shall be deemed to be the defaulter.

(7) When a defaulter appears before the Adjudicating Authority pursuant to a notice to show cause or is brought before the Adjudicating Authority under this section, the Adjudicating Authority shall give the defaulter an opportunity showing cause why he should not be committed to the civil prison.

(8) Pending the conclusion of the inquiry, the Adjudicating Authority may, in his discretion, order the defaulter to be detained in the custody of such officer as the Adjudicating Authority may think fit or release him on his furnishing the security to the satisfaction of the Adjudicating Authority for his appearance as and when required.

(9) Upon the conclusion of the inquiry, the Adjudicating Authority may make an order for the detention of the defaulter in the civil prison band shall in that event cause him to be arrested if he is not already under arrest:

Provided that in order to give a defaulter an opportunity of satisfying the arrears, the Adjudicating Authority may, before making the order of detention, leave the defaulter in the custody of the officer arresting him or of any other officer for a specified period not exceeding fifteen days, or release him on his furnishing security to the satisfaction of the Adjudicating Authority for his appearance at the expiration of the specified period if the arrears are not satisfied.

(10) When the Adjudicating Authority does not make an order of detention under sub-section (9), he shall, if the defaulter is under arrest, direct his release.

(11) Every person detained in the civil prison in execution of the certificate may be so detained ;-

(a) Where the certificate is for a demand of an amount exceeding rupees one crore – up to three years, and

(b) In any other case – up to six months:

Provided that he shall be released from such detention on the amount mentioned in the warrant for his detention being paid to the officer-in-charge of the civil prison.

(12) A defaulter released from detention under this section shall not, merely by reason of his release, be discharged from his liability for the arrears but he shall not be liable to be arrested under the certificate in execution of which he was detained in the civil prison.

(13) A detention order may be executed at any place in India in the manner provided for the execution of warrant of arrest under the Code of Criminal Procedure. 1973 (2 of 1974).

Section 15. Power to compound contravention

(1) Any contravention under section 13 may, on an application made by the person committing such contravention, be compounded within one hundred and eighty days from the date of receipt of application by the Director of Enforcement or such other officers of the Directorate of Enforcement and officers of the Reserve Bank as may be authorised in this behalf by the Central Government in such manner as may be prescribed.

(2) Where a contravention has been compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be initiated or continued, as the case may be, against the person committing such contravention under that section, in respect of the contravention so compounded.

Section 16. Appointment of Adjudicating Authority

(1) For the purpose of adjudication under section 13, the Central Government may, by an order published in the Official Gazette, appoint as many officers of the Central Government as it may think fit, as the Adjudicating Authorities for holding an inquiry in the manner prescribed after giving the person alleged to have committed contravention under section 13, against whom a complaint has been made under sub-section

(2) (hereinafter in this section referred to as the said person) a reasonable opportunity of being heard for the purpose of imposing any penalty:

Provided that where the Adjudicating Authority is of opinion that the said person is likely to abscond or is likely to evade in any manner, the payment of penalty, if levied, it may direct the said person to furnish a bond or guarantee for such amount and subject to such conditions as it may deem fit.

(2) The Central Government shall, while appointing the Adjudicating Authorities under sub-section (1), also specify in the order published in the Official Gazette their respective jurisdiction.

(3) No Adjudicating Authority shall hold an enquiry under sub-section (1) except upon a complaint in writing made by any officer authorised by a general or special order by the Central Government.

(4) The said person may appear either in person or take the assistance of a legal practitioner or a chartered accountant of his choice for presenting his case before the Adjudicating Authority

(5) Every Adjudicating Authority shall have the same powers of a civil court which are conferred on the Appellate Tribunal under sub-section (2) of section 28 and;-

(a) All proceedings before it shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, 1860 (45 of 1860); (b) Shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) Every Adjudicating Authority shall deal with the compliant under sub-section (2) as expeditiously as possible and endeavor shall be made to dispose off the complaint finally within one year from the date of receipt of the complaint:

Provided that where the complaint cannot be disposed off within the said period, the Adjudicating Authority shall record periodically the reasons in writing for not disposing off the complaint within the said period.

Section 17. Appeal to Special Director (Appeals)

(1) The Central Government shall, by notification, appoint one or more Special Directors (Appeals) to hear appeals against the orders of the Adjudicating Authorities under this section and shall also specify in the said notification the matter and places in relation to which the Special Director (Appeals) may exercise jurisdiction.

(2) Any person aggrieved by an order made by the Adjudicating Authority, being an Assistant Director of Enforcement or a Deputy Director of Enforcement, may prefer an appeal to the Special Director (Appeals)

(3) Every appeal under sub-section (1) shall be filed within forty-five days from the date on which the copy of the order made by the Adjudicating Authority is received by the aggrieved person and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed:

Provided that the Special Director (Appeals) may entertain an appeal after the expiry of the said period of forty-five days, if he is satisfied that there was sufficient cause for not filing it within that period.

(4) On receipt of an appeal under sub-section (1), the Special Director (Appeals) may after giving the parties to the appeal an opportunity of being heard, pass such order thereon as he thinks fit confirming, modifying or setting aside the order appealed against.

(5) The Special Director (Appeals) shall send a copy of every order made by him to the parties to appeal and to the concerned Adjudicating Authority.

(6) The Special Director (Appeals) shall have the same powers of a civil court which are conferred on the Appellate Tribu

Section 18. Establishment of Appellate Tribunal

The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Appellate Tribunal for Foreign Exchange to hear appeals against the orders of the Adjudicating Authorities and the Special Director (Appeals) under this Act.

Section 19. Appeal to Appellate Tribunal

(1) Save as provided in sub-section (2), the Central Government or any person aggrieved by an order made by an Adjudicating Authority other than those referred to sub-section (1) of section 17, or the Special Director (Appeals), may prefer an appeal to the Appellate Tribunal:

Provided that any person appealing against the order of the Adjudicating Authority or the Special Director (Appeals) levying any penalty, shall while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government:

Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty.

(2) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Adjudicating Authority or the Special Director (Appeals) is received by the aggrieved person or by the Central Government and it shall be in such form verified in such manner and be accompanied by such fee as may be prescribed:

Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.

(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.

(4) The Appellate Tribunal shall send a copy of every order made by it to the par-ties to the appeal and to the concerned Adjudicating Authority (or the Special Director (Appeals) as the case may be.

(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within one hundred and eighty days from the date of receipt of the appeal:

Provided that where any appeal could not be disposed off within the said period of one hundred and eighty days, the Appellate Tribunal shall record its reasons in writing for not disposing off the appeal within the said period.

(6) The Appellate Tribunal may, for the purpose of examining the legality, propriety or correctness of any order made by the Adjudicating Authority under section 16 in relation to any proceeding, on its own motion or other-wise, call for the records of such proceedings and make such order in the case as it think fit.

Section 20. Composition of Appellate Tribunal

(1) The Appellate Tribunal shall consist of a Chairperson and such number of Members as the Central Government may deem fit.

(2) Subject to the provisions of this Act,-

(a) The jurisdiction of the Appellate Tribunal may be exercised by Benches thereof;

(b) A Bench may be constituted by the Chairperson with one or more Members as the Chairperson may deem fit;

(c) The Benches of the Appellate Tribunal shall ordinarily sit at New Delhi and at such other places as the Central Government may, in consultation with the Chairperson, notify;

(d) The Central Government shall notify the areas in relation to which each Bench of the Appellate Tribunal may exercise jurisdiction.

(3) Notwithstanding anything contained in sub-section (2), the Chairperson may transfer a member from one Bench to another Bench.

(4) If at any stage of the hearing of any case or matter it appears to the Chairperson or a Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairperson or, as the case may be, referred to him for transfer, to such Bench as the Chairperson may deem fit.

Section 21. Qualifications for appointment of Chairperson, member and Special Director (Appeals)

(1) A person shall not be qualified for appointment as the Chairperson or a Member unless he;-

(a) In the case of Chairperson, is or has been, or is qualified to be, a Judge of a High Court; and

(b) In the case of a Member, is or has been, or is qualified to be, a District Judge.

(2) A person shall not be qualified for appointment as a Special Director (Appeals) unless he;-

(a) Has been a member of the Indian Legal Service and has held a post in Grade 1 of that Service; or

(b) Has been a member of the Indian Revenue Service and has held a post equivalent to a Joint Secretary to the Government of India

Section 22. Term of office

The Chairperson and every other Member shall hold office as such for a term of five years from the date on which he enters upon his office:

Provided that no Chairperson or other Member shall hold office as such after he has attained,-

(a) In the case of the Chairperson, the age of sixty-five years;

(b) In the case of any other Member, the age of sixty-two years.

Section 23. Terms and Conditions of service

The salary and allowances payable to and the other terms and conditions of service of the Chairperson, other Members and the Special Director (Appeals) shall be such as may be prescribed:

Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson or a Member shall be varied to his disadvantage after appointment.

Section 24. Vacancies

If, for reason other than temporary absence, any vacancy occurs in the office of the Chairperson or a Member, the Central Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Appellate Tribunal from the stage at which the vacancy is filled.

Section 25. Resignation and removal

(1) The Chairperson or a Member may, by notice in writing under his hand addressed to the Central Government, resign his office:

Provided that the Chairperson or a Member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of term of office, whichever is the earliest.

(2) The Chairperson or a Member shall not be removed from his office except by an order by the Central Government on the ground of proved misbehavior or incapacity after an inquiry made by such person as the President may appoint for this purpose in which the Chairperson or a Member concerned has been informed of the charges against him and given a reasonable opportunity of being heard in respect of such charges.

Section 26. Member to act as Chairperson in certain circumstances

(1) In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the senior-most member, shall act as the Chairperson until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.

(2) When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, the senior-most member, shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties.

Section 27. Staff of Appellate Tribunal & Special Director ( Appeals )

(1) The Central Government shall provide the Appellate Tribunal and the Special Director (Appeals) with such officers and employees as it may deem fit.

(2) The officers and employees of the Appellate Tribunal and office of the Special Director (Appeals) shall discharge their functions under the general superintendence of the Chairperson and the Special Director (Appeals), as the case may be.

(3) The salaries and allowances and other conditions of service of the officers and employees of the Appellate Tribunal and Office of the Special Director (Appeals) shall be such as may be prescribed.

Section 28. Procedure and powers of Appellate Tribunal & Special Director (Appeals)

(1) The Appellate Tribunal and the Special Director (Appeals) shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Appellate Tribunal and the Special Director (Appeals) shall have powers to regulate its own procedure.

(2) The Appellate Tribunal and the Special Director (Appeals) shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely:-

(a) Summoning and enforcing the attendance of any person and examining him on oath;

(b) Requiring the discovery and production of documents; (c) Receiving evidence on affidavits;

(d) Subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or documents or copy of such record or document from any office;

(e) Issuing commissions for the examination of witnesses or documents;

(f) Reviewing its decisions;

(g) Dismissing a representation of default or deciding it ex-parte;

(h) Setting aside any order of dismissal of any representation for default or any order passed by it ex-parte; and

(i) Any other matter which may be prescribed by the Central Government.

(3) An order made by the Appellate Tribunal or the Special Director (Appeals) under this Act shall be executable by the Appellate Tribunal or the Special Director (Appeals) as a decree of civil court and, for this purpose, the Appellate Tribunal and the Special Director (Appeals) shall have all the powers of a civil court.

(4) Notwithstanding anything contained in sub-section (3), the Appellate Tribunal or the Special Director (Appeals) may transmit any order made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by that court.

(5) All proceedings before the Appellate Tribunal and the Special Director (Appeals) shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, 1860 (45 of e 1860) and the Appellate Tribunal shall be deemed to be a civil court the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974).

Section 29. Distribution of business amongst Benches

Where Benches are constituted, the Chairperson may, from time to time, by notification, make provisions as to the distribution of the business of the Appellate Tribunal amongst the Benches and also provide for the matters which may be dealt with by each Bench.

Section 30. Power of Chairperson to transfer cases

On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairperson may transfer any case pending before one Bench, for disposal, to any other Bench.

Section 31. Decision to be by majority

If the Members of a Bench consisting of two Members differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of the Members of the Appellate Tribunal who have heard the case, including those who first heard it.

Section 32. Right of appellant to take assistance of legal practitioner or Chartered Accountant and of Government, to appoint presenting officers

(1) A person preferring an appeal to the Appellate Tribunal under this Act may either appear in person or take the assistance of a legal practitioner or a Chartered Accountant of his choice to present his case before the Appellate Tribunal or the Special Director (Appeals), as the case may be.

(2) The Central Government may authorise one or more legal practitioners or a Chartered Accountants or any of its officers to act as presenting officers and every person so authorised may present the case with respect to any appeal before the Appellate Tribunal or the Special Director (Appeals), as may be.

Section 33. Members, etc., to be public servants

The Chairperson, Members and other officers and employees of the Appellate Tribunal the Special Director (Appeals) and the Adjudicating Authority shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).

Section 34. Civil court not to have jurisdiction

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an Adjudicating Authority or the Appellate Tribunal or the Special Director (Appeals) is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

Section 35. Appeal to High Court

Any person aggrieved by any decision or order of the Appellate Tribunal or the Special Director (Appeals) may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal or the Special Director (Appeals) to him on any question of law arising out of such order:

Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.

Explanation.-In this section High Court means;-

(a) The High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and

(b) Where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or carries on business or personally works for gain.

Section 36. Directorate of Enforcement

(1) The Central Government shall establish a Directorate of Enforcement with a Director and such other officers or class of officers as it thinks fit, who shall be called officers of Enforcement, for the purposes of this Act.

(2) Without prejudice to provisions of sub-section (1), the Central Government may authorise the Director of Enforcement or an Additional Director of Enforcement or a Special Director of Enforcement or a Deputy Director of Enforcement to appoint officers of Enforcement below the rank of an Assistant Director of Enforcement.

(3) Subject to such conditions and limitations as the Central Government may impose, an officer of Enforcement may exercise the powers and discharge the duties conferred or imposed on him under this Act.

Section 37. Power of search, seizure, etc.

(1) The Director of Enforcement and other officers of Enforcement not below the rank of an Assistant Director shall take up for investigation the contravention referred to in section 13.

(2) Without prejudice to the provisions of sub-section (1), the Central Government may also, by notification, authorise any officer or class of officers in the Central Government, State Government or the Reserve Bank, not below the rank of an Under Secretary to the Government of India to investigate any contravention referred to in section 13.

(3) The officers referred to in sub-section (1) shall exercise the like powers which are confer-red on income-tax authorities under the Income-tax Act, 1961 (43 of 1961) and shall exercise such powers, subject to such limitations laid down under that Act.

Section 38. Empowering other officers

(1) The Central Government may, by order and subject to such conditions and limitations as it thinks fit to impose, authorise any officer of customs or any central excise officer or any police officer or any other officer of the Central Government or a State Government to exercise such of, the powers and discharge such of the duties of the Director of Enforcement or any other officer of Enforcement under this Act as may be stated in the order.

(2) The officers referred to in sub-section (1) shall exercise the like powers which are conferred on the income-tax authorities under the Income-tax Act, 1961 (43 of 1961), subject to such conditions and limitations as the Central Government may impose

Section 39. Presumption as to documents in certain cases

Where any document-

(i) Is produced or furnished by any person or has been seized from the custody or control. of any person, in either case, under this Act or under any other law; or

(ii) Has been received from any place outside India (duly authenticated by such authority or person and in such manner as may be prescribed) in the course of investigation of any contravention under this Act alleged to have been committed by any person, and such document is tendered in any proceeding under this Act in evidence against him, or against him and any other person who is proceeded against jointly with him. the court or the adjudicating authority, as the case may be, shall-

(a) Presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person’s handwriting and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;

(b) Admit the document in evidence notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence;

(c) In a case falling under clause (i), also presume, unless the contrary is proved, the truth of the contents of such document

Section 40. Suspension of operation of this Act

(1) If the Central Government is satisfied that circumstances have arisen rendering it necessary that any permission granted or restriction imposed by this Act should cease to be granted or imposed, or if it considers necessary or expedient so to do in public interest, the Central Government may, by notification, suspend or relax to such extent either indefinitely or for such period as may be notified, the operation of all or any of the provisions of this Act.

(2) Where the operation of any provision of this Act has under sub-section (1) been suspended or relaxed indefinitely, such suspension or relaxation may, at any time while this Act remains in force, be removed by the Central Government by notification.

(3) Every notification issued under this section shall be laid, as soon as may be after it is issued, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or both Houses agree that the notification should not be issued, the 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 notification.

Section 41. Power of Central Government to give directions

For the purposes of this Act, the Central Government may, from time to time, give to the Reserve Bank such general or special directions as it thinks fit and the Reserve Bank shall, in the discharge of its functions under this Act, comply with any such directions.

Section 42. Contravention by companies

(1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made there under is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised due diligence to prevent such contravention.

(2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, direction or order made there under has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.

Explanation.- For the purposes of this section-

(i) “Company” means any body corporate and includes a firm or other association of individuals; and (ii) “Director”, in relation to a firm, means a partner in the firm.

Section 43. Death or insolvency in certain cases

Any right, obligation, liability, proceedings or appeal arising in relation to the provisions of section 13 shall not abate by reason of death or insolvency of the person liable under that section and upon such death or insolvency such rights and obligations shall devolve on the legal representative of such person or the official receiver or the official assignee, as the case may be:

Provided that a legal representative of the deceased shall be liable only to the extent of the inheritance or estate of the deceased.

Section 44. Bar of legal proceedings

No suit, prosecution or other legal proceedings shall lie against the Central Government or the Reserve Bank or any officer of that Government or of the Reserve Bank or any other person exercising any power or discharging any functions or performing any duties under this Act, for anything in good faith done or intended to be done under this Act or any rule, regulation, notification, direction or order made there under.

Section 45. Removal of difficulties

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, do anything not inconsistent with the provisions of this Act for the purpose of removing the difficulty:

Provided that no such order shall be made under this section after the expiry of two years from the commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

Section 46. Power to make rules

(1) The Central Government may, by notification, make rules to carry out the provisions of this Act.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for,-

(a) The imposition of reasonable restrictions on current account transactions under section 5;

(b) The manner in which the contravention may be compounded under sub-section (1) of section 15;

(d) The form of appeal and fee for filing such appeal under sections 17 and 19;

(e) The salary and allowances payable to and the other terms and conditions of service of the Chairperson and other Members of the Appellate Tribunal and the Special Director (Appeals) under section 23;

(f) The salaries and allowances and other conditions of service of the officers and employees of the Appellate Tribunal and the Office of the Special Director (Appeals) under sub-section (3) of section 27;

(g) The additional matters in respect of which the Appellate Tribunal and the Special Director (Appeals) may exercise the powers of a civil court under clause (i) of sub-section (2) of section 28;

(h) The authority or person and the manner in which any documents may be authenticated under clause (ii) of section 39; and

(i) Any other matter which is required to be, or may be prescribed

Section 47. Power to make regulations

(1) Reserve Bank may, by notification, make regulations, to carry out the provisions of this Act and the rules made there under :

(2) Without prejudice to the generality of the foregoing power, such regulations may provide for,-

(a) The permissible classes of capital account transactions, the limits of admissibility of foreign exchange for such transactions, and the prohibition, restriction or regulation of certain capital account transactions under section 6;

(b) The manner and the form in which the declaration is to be furnished under clause (a) of sub-section (1) of section 7;

(d) The limit up to which any person may possess foreign currency or foreign coins under clause (a) of section 9;

(e) The class of persons and the limit up to which foreign currency account may be held or operated under clause (b) of section 9;

(f) The limit up to which foreign exchange acquired may be exempted under clause (d) of section 9;

(g) The limit up to which foreign exchange acquired may be retained under clause (e) of section 9;

(h) Any other matter which is required to be, or may be, specified.

Section 48. Rules and regulations to be laid before Parliament

Every rule and regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

Section 49. Repeal and saving

(1) The Foreign Exchange Regulation Act, 1973 (46 of 1973) is hereby repealed and the Appellate Board constituted under sub-section (1) of section 52 of the said Act (hereinafter referred to as the repealed Act) shall stand dissolved.

(2) On the dissolution of the said Appellate Board, the person appointed as Chairman of the Appellate Board and every other person appointed as Member and holding office as such immediately before such date shall vacate their respective offices and no such Chairman or other person shall be entitled to claim any compensation for the premature termination of the term of his office or of any contract of service.

(3) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under section 5 1 of the repealed Act after the expiry of a period of two years from the date of the commencement of this Act.

(4) Subject to the provisions of sub-section (3) all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed.

(5) Notwithstanding such repeal,-

(a) Anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorization or exemption granted or any document or instrument executed or any direction given under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act;

(b) Any appeal preferred to the Appellate Board under sub-section (2) of section 52 of the repealed Act but not disposed of before the commencement of this Act shall stand transferred to and shall be disposed of by the Appellate Tribunal constituted under this Act;

(c) Every appeal from any decision or order of the Appellate Board under sub-section (3) or sub-section (4) of section 52 of the repealed Act shall, if not filed before the commencement of this Act, be filed before the High Court within a period of sixty days of such commencement:

Provided that the High Court may entertain such appeal after the expiry of the said period of sixty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period.

(6) Save as otherwise provided in sub-section (3), the mention of particular matters in sub-sections (2), (4) and (5) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal.

Societies Registration Act

November 30, 2014

Introduction

There are many ventures in the world which a person or group of persons would like to undertake but which usually according to their families or friends are not worth pursuing. Sometimes these ventures benefit the society too but due to lack of funds, external pressures etc. the groups break up and the dream of doing something is lost in the mist. It is with this view to promote such social welfare activities the Societies Registration Act was brought into effect in 1860 so that people could form a society, have a well defined purpose, have enough resources, funds etc. and are also immune from external pressures, tensions etc. so that their purposes are fulfilled.

Act 21 of 1860

The societies Registration Act, 1860 (21 of 1860) came into force on 21st May, 1860.

Preamble:-

(21 of 1860)

[21st May, 1860]

An Act for the Registration of Literary, Scientific and Charitable Societies

Whereas it is expedient the provision should be made for improving the legal condition of societies established for the promotion of literature, science, or the fine arts, or for the diffusion of useful knowledge, the diffusion of political education or for charitable purposes; it is enacted as follows:

Section 1. Societies formed by memorandum of association and registration.

any seven or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in section 20 of this Act, may, by subscribing their names to a memorandum of association, and filing the same with Registrar of Joint-stock Companies from themselves into a society under this Act.

Section 2. Memorandum of association.

The memorandum of association shall contain the following things, that is to say,- the name of society; the object of the society; the names, addresses, and occupations of the governors, council, directors, committee, or other governing body to whom, by the rules of the society, the management of its affairs is entrusted.

A copy of the rules and regulations of the society, certified to be a correct copy by not less than three of the members of the governing body, shall be filed with the memorandum of association.

Section 3. Registration and fees.

Upon such memorandum and certified copy being filed, the Registrar shall certify under his hand that the society is registered under this Act. There shall be paid to the Registrar for every such registration a fee of fifty rupees, or such smaller fees as the state Government may, from time to time, direct; and all fees so paid shall be accounted for to the state Government.

Section 4. Annual list of managing body to be filed.

Once in every year, on or before the fourteenth day succeeding the day on which, according to the rules of the society, the annual general meeting of the society is held, or, if the rules do not provide for an annual general meeting, in the month of January, a list shall be filed with the Registrar of Joint-stock Companies, of the names, addresses and occupations of the governors, council, directors, committee, or other governing body then entrusted with the management of the affairs of the society.

Section 5. Property of society how vested.

The property, movable and immovable, belonging to a society registered under this Act, if no vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings, civil and criminal, may be described as the property of the governing body of such society for their proper title.

Section 6. Suits by and against societies.

Every society registered under this Act may sue or be sued in the name of President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion:

Provided that it shall be competent for any person having a claim, or demand against the society, to sue the President, Chairman, or Principal Secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant.

Section 7. Suits not to abate.

No suit or proceeding in any Civil Court shall abate or discontinue by reason of the person, by or against whom such suit or proceedings shall have been brought or continued, dying or ceasing to fill the character in the name whereof he shall have sued or been sued, but the same suit proceeding shall be continued in the name of or against the successor or such person.

Section 8. Enforcement of judgment against society.

If a judgment shall be recovered against the person or officer named on behalf of the society, such judgment shall not be put in force against the property, movable or immovable, or against the body of such person or officer, but against the property of the society.

The application for execution shall set forth the judgment, the fact of the party against whom it shall have been recovered having sued or having been sued, as the case may be, on behalf of the society only, and shall require to have the judgment enforced against the property of the society.

Section 9. Recovery or penalty accruing under bye-law.

Whenever by any bye-law duly made in accordance with the rules and regulations of the society, or, if the rules do not provide for the making of bye-laws, by any bye0law made at a general meeting of the members of the society convened for the purpose for the making of which the concurrent votes of three-fifths of the members present at such meeting shall be necessary any pecuniary penalty is imposed for the breach of any rule or bye-law of the society, such penalty, when accrued, may be recoverable in any court having jurisdiction where the defendant shall reside, or the society shall be situate, as the governing body thereof shall deem expedient.

Section 10. Members liable to be sued as strangers.

Any member who may be in arrear of a subscription which according to the rules of the society he is bound to pay, or who shall possess himself of or detain any property of the society in a manner or for a time contrary to such rules, or shall injure or destroy any property of the society, may be sued for such arrear or for the damage accruing from such detention, injury, or destruction of the property in the manner hereinbefore provided.

Recovery by successful defendant of costs adjudged.- But if the defendant shall be successful in any suit or other proceedings brought against him at the instance of the society, and shall be adjudged to recover his costs, he may elect to proceed to recover the same from the officer in whose name the suit shall be brought, or from the society, and in the latter case shall have process against the property of the said society in the manner above described.

Section 11. Members guilty of offences punishable as strangers.

Any member of the society who shall steal, purloin, or embezzle any money or other property, or willfully and maliciously destroy or injure any property of such society, or shall forge and deed, bond, security for money, receipt, or other instrument, whereby the funds of the society may be exposed to loss, shall be subject to the same prosecution, and, if convicted, shall be liable to be punished in like manner, as any person not a member would be subject and liable to in respect of the like offence.

Section 12. Societies enabled to alter, extend or abridge their purposes.

Whenever it shall appear to the governing body of any society registered under this Act, which has been established for any particular purpose or purposes, that it is advisable to alter, extend, or abridge such purpose to or for other purposes within in the meaning of this Act, or to amalgamate such society either wholly or partially with any other society, such governing body may submit the proposition to the members of the society in a written or printed report, any may convene a special meeting for the consideration thereof according to the regulations of the society; but no such proposition shall be carried into effect unless such report shall have been delivered or sent by post to every member of the society ten days previous to the special meeting converted by the governing body for the consideration thereof, no unless such proposition shall have been agreed to by the votes of three-fifths of the members delivered in person or by proxy, and confirmed by the votes of three-fifths of the members present at a second special meeting convened by the governing body at an interval of one month after the former meeting.

Section 13. Provision for dissolution of societies and adjustment of their affairs.

Any number not less than three-fifths of the members of any society may determine that it shall be dissolved, and thereupon it shall be dissolved forthwith, or at the time then agreed upon, and all necessary steps shall be taken for the disposal and settlement of the property of the society, its claims and liabilities, according to the rules of the said society applicable thereto, if any, and if not, then as the governing body shall find expedient provided that, in the event of any dispute arising among the said governing body or the members of the society, the adjustment of its affairs shall be referred to the principal Court of original civil jurisdiction of the district in which the chief building of the society is situated; and the Court shall make such order in the matter as it shall deem requisite.

Assent required.- Provided that no society shall be dissolved unless three-fifths of the members shall have expressed a wish for dissolution by their votes delivered in person by their votes delivered in person, or by proxy, at a general meeting convened for the purpose:

Government consent.- Provided that whenever any government is a member of, or a contributor to, or otherwise interested in any society registered under this Act, such society shall not be dissolved without the consent of the Government of the State or registration.

Section 14. Upon a dissolution no member to receive profit.

If upon the dissolution of any society registered under this Act there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of not less than three-fifths of the members present personally or by proxy at the time of the dissolution, or, in default thereof, by such court as aforesaid:

Clause not to apply to Joint-stock companies.- Provided, however, that this clause shall not apply to any society which has been founded or established by the contributions of share-holders in the nature of a Joint-stock Company.

Section 15. Member defined.

For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations;

Disqualified members.- but in all proceedings under this Act no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months.

Section 16. Governing body defined.

The governing body of the society shall be the governors, council, directors, committee, trustees or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

Section 17. Registration of societies formed before Act.

Any company or society established for a literary, scientific or charitable purpose, and registered under Act 43 of 1850, or any such society established and constituted previously to the passing of this Act but not registered under this said Act 43 of 1850, may at any time hereafter be registered as a society under this Act;

Assent required.- subject to the proviso that no such company or society shall be registered under this Act unless an assent to its being so registered has been given by three-fifths of the members present personally, or by proxy, at some general meeting convened for that purpose by the governing body. In the case of a company or society registered under this Act 43 of 1850, the directors shall be deemed to be such governing body. In the case of a society not so registered, if so such body shall have been constituted on the establishment of the society, it shall be competent for the members thereof, upon due notice, to create for itself a governing body to act for the society thenceforth.

Section 18. Such societies to file memorandum, etc., with Registrar of Joint-stock companies.

In order to any such society as is mentioned in the last preceding section obtaining registry under this Act, it shall be sufficient that the governing body file with the Registrar of Joint-stock Companies a memorandum showing the name of the society, the objects of the society, and the names, address and occupations of the governing body, together with a copy of the rules and regulations of the society certified as provided in section 2, and a copy of the report of the proceedings of the general meeting at which the registration was resolved on.

Section 19. Inspection of documents.

Any person may inspect all documents filed with the Registrar under this Act on payment of a fee of one rupee for each inspection; and any person may require a copy or extract of any document or any part of any document, to be certified by the registrar, on payment of two annas for every hundred words of such copy or extract; and such certified copy shall be prima facie evidence of the matter therein contained in all legal proceedings whatever.

Section 20. To what societies Act applies.

The following societies may be registered under this Act:-

Charitable societies, the military orphans funds or societies established at the several presidencies of India, societies established for the promotion of science, literature, or the fine arts for instruction, the diffusion of useful knowledge, the diffusion of political education the foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public or public museums and galleries or paintings and other works of art, collections of natural history, mechanical and philosophical inventions, instruments, or designs.

Press and Registration of Books Act

November 30, 2014

Section 1. Interpretation-clause.

¹[(1)] In this Act, unless there shall be something repugnant in the subject or context, -

“Book” includes every volume, part or division of a volume, and pamphlet, in any language, and every sheet of music, map, chart or plan separately printed ²[* * *]

³[* * *]

⁴[“Editor” means the person who controls the selection of the matter that is published in a newspaper;]

⁵[* * *]

“Magistrate” means any person exercising the full powers of a ⁶Magistrate, and includes a ⁷Magistrate of police ⁸[* * *];

⁹[“Newspaper” means any printed periodical work containing public news or comments on public news;]

¹⁰[* * *]

¹¹[“Paper” means any document, including a newspaper, other than a book;

“Prescribed” means prescribed by rules made by the Central Government under section 20A;

“Press Registrar” means the Registrar of newspapers for India appointed by the Central Government under section 19A and includes any other person appointed by the Central Government to perform all or any of the functions of the Press Registrar;

“Printing” includes cyclostyling and printing by lithography;

“Register” means the Register of newspapers maintained under section 19B.]

¹²[(2) Any reference in this Act to any law which is not in force in the State of Jammu and Kashmir shall, in relation to that State, be construed as a reference to the corresponding law in force in that State.]

——————–

1. Section 1 re-numbered as sub-section (1) thereof by Act 16 of 1965, sec. 2 (w.e.f 1-1 1-1965).

2. The words “or lithographed” omitted by Act 55 of 1955, sec. 4 (w.e.f 1-7-1956).

3. Definition of “British India” rep. by the A.0. 1937 see now the definition in sec. 3 (5) of the General Clauses Act, 1897 (10 of 1897).

4. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.

5. Definition of ‘India” omitted by Act 16 of 1965, sec. 2 (w.e.f. 1-1 1-1965).

6. Now Magistrate of the first class, see the Code of Criminal Procedure, 1973 (2 of 1974).

7. Now Presidency Magistrate, see Code of Criminal Procedure, 1973 (2 of 1974).

8. The words “and a Justice of the Peace” rep. by Act IO of 1890, sec.2.

9. Ins. by Act 14 of 1922, sec.3 and Sch, 1.

10. Paragraphs relating to the definitions of “Number” and “Gender” rep. by Act 10 of 1914, sec.3 and Sch. 11; definition of “Local Government” rep. by the A.0. 1937 and the definition of “States” ins. by the A.0. 1950 was rep. by Act 3 of 195 1, sec.3 and Sch.

11. Ins. by Act 55 of 1955, sec. 4 (w.e.f. 1-7-1956).

12. Ins. by Act 16 1965, sec.2 (w.e.f 1-1 1-1965).

Section 2. Repeal of Act 11 of 1835.

[Rep. by the Repealing Act, 1870 (14 of 1870), sec. 1 and Sch., Pt. II.]

Section 3. Particulars to be printed on books and papers.

Every book or paper printed within ¹[India] shall have printed legibly on it the name of the printer and the place of printing, and (if the book or paper be published) ²[the name] of the publisher, and the place of publication.

——————–

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

2. Ins. by Act 12 of 1891, sec.2 and Sch. 11, Pt. I.

Section 4. Keeper of printing press to make declaration.

¹[(1)] No person shall within ²[India], keep in his possession any press for the printing of books or papers, who shall not have made and subscribed the following declaration before ³[the District, Presidency or Sub divisional Magistrate] within whose local jurisdiction such press may be:

“I, A.B., declare that I have a press for printing at. -

And this last blank shall be filled up with a true and precise description of the place where such press may be situate.

⁴[(2)] As often as the place where a press is kept is changed, a new declaration shall be necessary:

Provided that where the change is for a period not exceeding sixty days and the place where the press is kept after the change is within the local jurisdiction of the Magistrate referred to in sub-section (1), no new declaration shall be necessary if-

(a) A statement relating to the change is furnished to the said Magistrate within twenty four hours thereof, and

(b) The keeper of the press continues to be the same.]

——————–

1. Section 4 re-numbered as sub-section (1) of that section by Act 55 of 1955, sec.5 (w.e.f. 1-7-1956).

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

3. Subs. by Act 56 of 195 1, sec.36, for “the Magistrate” (w.e.f. 1-2-1952).

4. Ins. by Act 55 of 1955, sec.5 (w.e.f. 1-7-1956).

Section 5. Rules as to publication of newspapers.

No ¹[newspaper] shall be published in ²[India], except in conformity with the rules hereinafter laid down:

³[(1) Without prejudice to the provisions of section 3, every copy of every such newspaper shall contain the names of the owner and editor thereof printed clearly on such copy and also the date of its publication.]

⁴[(2)] The printer and the publisher of every such ⁵[newspaper] shall appear ⁶[in person or by agent authorised in this behalf in accordance with rules made under section 20, before a District, Presidency or Sub-divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published and shall make and subscribe, in duplicate, the following declaration:

“I A.B., declare that I am the printer (or publisher, or printer and publisher) of the ⁵[newspaper] entitled – ⁷[and to be printed or published, or to be printed and published], as the case may be at-”.

And the last blank in this form of declaration shall be filled up with a true and precise account of the premises where the printing or publication is conducted.

⁸[(2A) Every declaration under rule (2) shall specify the title of the newspaper, the language in which it is to be published and the periodicity of its publication and shall contain such other particulars as may be prescribed.]

⁹[(2B) Where the printer or publisher of a newspaper making a declaration under rule (2) is not the owner thereof, the declaration shall specify the name of the owner and shall also be accompained by an authority in writing from the owner authorising such person to make and subscribe such declaration.

(2C) A declaration in respect of a newspaper made under rule (2) and authenticated under section 6 shall be necessary before the newspaper can be published.

(2D) Where the title of any newspaper or its language or the periodicity of its publication is changed, the declaration shall cease to have effect and a new declaration shall be necessary before the publication of the newspaper can be continued.

(2E) As often as the ownership of a newspaper is changed, a new declaration shall be necessary.]

¹⁰[(3)] As often as the place of printing or publication is changed; a new declaration shall be necessary:

¹¹[Provided that where the change is for a period not exceeding thirty days and the place of printing or publication after the change is within the local jurisdiction of the Magistrate referred to in rule (2), no new declaration shall be necessary if-

(a) A statement relating to the change is furnished to the said Magistrate within twenty four hours thereof, and

(b) The printer or publisher or the printer and publisher of the newspaper continues to be the same.]

¹²[(4)] As often as the printer or the publisher who shall have made such declaration as is aforesaid shall leave India for a period exceeding ninety days or where such printer or publisher is by infinity or otherwise rendered incapable of carrying out his duties for a period exceeding ninety days in circumstances not involving the vacation of his appointment, a new declaration shall be necessary.]

¹¹[(5) Every declaration made in respect of a newspaper shall be void, where the newspaper does not commence publication-

(a) Within six weeks ¹³[of the authentication of the declaration under section 6], in the case of a newspaper to be published once a week or oftener; and

(b) Within three months ¹³[of the authentication of the declaration under section 6], in the case of any other newspaper,

And in every such case, a new declaration shall be necessary before the newspaper can be published.

(6) Where, in any period of three months, any daily, tri-weekly, bi-weekly, weekly or fortnightly newspaper publishes issues the number of which is less than half of what should have been published in accordance with the declaration made in respect thereof, the declaration shall cease to have effect and a new declaration shall be necessary before the publication of the newspaper can be continued.

(7) Where any other newspaper has ceased publication for a period, exceeding twelve months, every declaration made in respect thereof shall cease to have effect, and a new declaration shall be necessary before the newspaper can be re-published.

(8) Every existing declaration in respect of a newspaper shall be cancelled by the Magistrate before whom a new declaration is made and subscribed in respect of the same:]

¹⁴[Provided that no person ¹⁵[who does not ordinarily reside in India, or] who has not attained majority in accordance with the provisions of the Indian Majority Act, 1875 (9 of 1875), or of the law to which he is subject in respect of the attainment of majority, shall be permitted to make the declaration prescribed by this section, nor shall any such person edit a newspaper.]

——————–

1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for certain words.

2. Subs. by Act 3 of 195 1, sec. 3 and Sch., for “the States”.

3. Subs. by Act 26 of 1960, sec. 2, for rule (1) (w.e.f 1-10-1960) which was ins. by Act 14 of 1922, sec. 3 and Sch. 1.

4. Rule (1) re-numbered as rule (2) by Act 14 of 1922, sec. 3 and Sch. 1.

5. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “periodical work”.

6. The words “, or such printer or publisher resides,” omitted by Act 26 of 1960, sec. 2 (w.e.f. 1-10-1960).

7. Subs. by Act 55 of 1955, sec. 6, for certain words (w.e.f. 1-7-1956).

8. Ins. by Act 55 of 1955, sec. 6 (w.e.f. 1-7-1956).

9. Ins. by Act 26 of 1960, sec. 2 (w.e.f. 1-10-1960).

10. Rule (2) re-numbered as rule (3) by Act 14 of 1922, sec. 3 and Sch, 1.

11. Ins. by Act 55 of 1955, sec. 6 (w.e.f 1-7-1956).

12. Subs. by Act 26 of l960, sec.2 for rule (4) (w.e.f 1-10-1960), which had been re-numbered for the original rule (3) by Act 14 of 1922, see. 3 and Sch. 1.

13. Subs. by Act 26 of 1960, sec. 2, for “of the declaration” (w.e.f. 1-10- 1960).

14. Ins. by Act 14 of 1922, sec. 3 and Sch. 1

15. Ins. by Act 26 of 1960, sec. 2 (w.e.f I- I 0- 1 960).

Section 5 A. Keepers of printing presses and printers and publishers of newspapers in Jammu and Kashmir to make and subscribe fresh declarations within specified period.

¹[Keepers of printing presses and printers and publishers of newspapers in Jammu and Kashmir to make and subscribe fresh declarations within specified period. (1) No person who has made and subscribed a declaration in respect of any press under section 4 of the Jammu and Kashmir State Press and Publications Act, S. 1989 (Jammu and Kashmir Act, No. I of S. 1989) shall keep the press in his possession for the printing of books or papers ²[after the 31st day of December 1968, unless before the expiry of that date] he makes and subscribes a fresh declaration in respect of that press under section 4 of this Act.

(2) Every person who has subscribed to any declaration in respect of a newspaper under section 5 of the Jammu and Kashmir State Press Publications Act, S. 1989 (Jammu and Kashmir Act, No. I of S. 1989) shall cease to be the editor, printer or publisher of the newspaper mentioned in such declaration ²[after the 31st day of December, 1968 unless before the expiry of that date] he makes and subscribes a fresh declaration in respect of that newspaper under rule (2) of the rules laid down in section 5 of this Act.]

——————–

1. Ins. by Act 16 of 1965, sec. 3 (w.e.f. 1-1 1-1965).

2. Subs. by Act 30 of 1968, sec. 2, for certain words (retrospectively).

Section 6. Authentication of declaration.

Each of the two originals of every declaration so made and subscribed as is aforesaid, shall be authenticated by the signature and official sea of the Magistrate before whom the said declaration shall have been made:

¹[Provided that where any declaration is made and subscribed under section 5 in respect of a newspaper, the declaration shall not, save in the case of newspapers owned by the same person, be so authenticated unless the Magistrate ²[is, on inquiry from the Press Registrar, satisfied] that the newspaper proposed to be published does not bear a title which is the same as, or similar to, that of any other newspaper published either in the same language or in the same State.]

Deposit. -One of the said originals shall be deposited among the records of the office of the Magistrate, and the other shall be deposited among the records of the High Court of Judicature, or ³[other principal Civil Court of original jurisdiction for the place where] the said declaration shall have been made.

Inspection and supply of copies. -The Officer-in -charge of each original shall allow any person to inspect that original on payment of a fee of one rupee, and shall give to any person applying a copy of the said declaration, attested by the seal of the Court which has the custody of the original, on payment of a fee of two rupees.

⁴[A copy of the declaration attested by the official seal of the Magistrate, or a copy of the order refusing to authenticate the declaration, shall be forwarded as soon as possible to the person making and subscribing the declaration and also to the Press Registrar.]

——————–

1. Ins. by Act 55 of 1955, sec. 7 (w.e.f. 1-7-1956).

2. Subs. by Act 26 of 1960, sec. 3, for certain words (w.e.f. 1-10-1960).

3. Subs. by Act 10 of 1890, sec. 3, for certain words.

4. Subs. by Act 26 of 1960, see. 3, for the fourth paragraph (w.e.f 1-1 0-1960), which was ins. by Act 55 of 1955, sec. 7 (w.e.f. 1-7-1956).

Section 7. Office copy of declaration to be prima-facie evidence.

In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declarations, ¹[or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor] shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, ¹[or printed on such newspaper, as the case may be] that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every ²[newspaper] whereof the title shall correspond with the title of the ²[newspaper] mentioned in the declaration, ¹[for the editor of every portion of that issue of the newspaper of which a copy is produced].

——————–

1. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.

2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “periodical work”.

Section 8. New declaration by persons who have signed a declaration and subsequently ceased to be printers or publishers.

³[If any person has subscribed to any, declaration in respect of a newspaper under section 5 and the declaration has been authenticated by a Magistrate under section 6 and subsequently that person ceases to bertha printer or publisher of the newspaper mentioned in such declaration, he shall appear before any District, Presidency or Sub-divisional Magistrate, and make and subscribe in duplicate the following declaration: -

“I, A.B., declare that I have ceased to be the printer or publisher or printer and publisher of the newspaper entitled.–]

Authentication and filing. -Each original of the latter declaration shall be authenticated by the signature and seal of the Magistrate before whom the said latter declaration shall have been made, and one original of the said latter declaration shall be filed along with each original of the former declaration.

Inspection and supply of copies. -The Officer-in-charge of each original of the latter declaration shall allow any person applying to inspect that original on payment of a fee of one rupee, and shall give to any person applying a copy of the said latter declaration, attested by the seal of the Court having custody of the original, on payment of a fee of two rupees.

Putting copy in evidence. -In all trials in which a copy, attested as is aforesaid, of the former declaration shall have been put in evidence, it shall be lawful to put in evidence a copy, attested as is aforesaid, of the latter declaration, and the former declaration shall not be taken to be evidence that the declarant was, at any period subsequent to the date of the latter declaration, printer or publisher of the ¹[newspaper] therein mentioned.

²[A copy of the] after declaration attested by the official seal of the Magistrate shall be forwarded to the Press Registrar.]

——————

1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “periodical work”.

2. Ins. by Act 55 of 1955, sec. 8 (w.e.f. 1-7-1956).

3. Subs. by Act 55 of 1955, sec. 8, for the first paragraph (w.e.f. 1-7-1956).

Section 8 A. Person whose name has been incorrectly published as editor may make a declaration before a Magistrate.

¹[Person whose name has been incorrectly published as editor may make a declaration before a Magistrate. If any person, whose name has appeared as editor on a copy of a newspaper, claims that he was not the editor of the issue on which his name has so appeared, he may, within two weeks of his becoming aware that his name has been so published, appear before a District, Presidency or Sub-Divisional Magistrate and make a declaration that his name was incorrectly published in that issue as that of the editor thereof, and if the Magistrate after making such inquiry or causing such inquiry to be made as he may consider necessary is satisfied that such declaration is true, he shall certify accordingly, and on that certificate being given the provisions of section 7 shall not apply to that person in respect of that issue of the newspaper.

The Magistrate may extend the period allowed by this section in any case where he is satisfied that such person was prevented by sufficient cause from appearing and making the declaration within that period.]

——————–

1. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.

Section 8 B. Cancellation of declaration.

¹[Cancellation of declaration. If, on an application made to him by the Press Registrar or any other person or otherwise, the Magistrate empowered to authenticate a declaration under this Act, is of opinion that any declaration made in respect of a newspaper should be cancelled, he may, after giving the person concerned an opportunity of showing cause against the action proposed to be taken, hold an inquiry into the matter and if, after considering the cause, if any, shown by such person and after giving him an opportunity of being heard, he is satisfied that-

(i) The newspaper, in respect of which the declaration has been made is being published in contravention of the provisions of this Act or rules made thereunder; or

(ii) The newspaper mentioned in the declaration bears a title which is the same as, or similar to, that of any other newspaper published either in the same language or in the same State; or

(iii) The printer or publisher has ceased to be the printer or publisher of the newspaper mentioned in such declaration; or

(iv) The declaration was made on false representation or on the concealment of any material fact or in respect of a periodical work, which is not a newspaper;

The Magistrate may, by order, cancel the declaration and shall forward as soon as possible a copy of the order to the person making or subscribing the declaration and a] so to the Press Registrar.

——————–

1. Ins. by Act 26 of 1960, sec. 4 (w.e.f. 1-10-1960).

Section 8 C. Appeal.

(1) Any person aggrieved by an order of a Magistrate refusing to authenticate a declaration under section 6 or cancelling a declaration under section 8B may, within sixty days from the date on which such order is communicated to him, prefer an appeal to the Appellate Board to be called the Press and Registration Appellate Board ¹[consisting of a Chairman and another member to be nominated by the Press Council of India, established under section 4 of the Press Council Act, 1978 (37 of 1978), from among its members]:

Provided that the Appellate Board may entertain an appeal after the expiry of the said period, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) On receipt of an appeal under this section, the Appellate Board may, after calling for the records from the Magistrate and after making such further inquiries as it thinks fit, confirm, modify or set aside the order appealed against.

(3) Subject to the provisions contained in sub-section (2), the Appellate Board may, by order, regulate its practice and procedure.

(4) The decision of the Appellate Board shall be final.]

——————–

1. Subs. by Act 37 of 1978, scc. 27, for certain words.

Section 9. Copies of books printed after commencement of Act to be delivered gratis to Government.

¹[PART III

DELIVERY OF BOOKS

——————–

1. Subs. by Act 10 of 1890, sec. 4, for the original Part III.

Printed ¹[* * *] copies of the whole of every book which shall be printed ¹[* * *] in ²[India] after this Act shall come into force, together with all maps, prints or other engravings belonging thereto, finished and coloured in the same manner as the best copies of the same, shall, notwithstanding any agreement (if the book be published) between the printer and publisher thereof, be delivered by the printer at such place and to such officer as the State Government shall, by notification in the Official Gazette, from time to time direct, and free of expense to the Government, as follows, that is to say:-

(a) In any case, within one calendar month after the day on which any such book shall first be delivered out of the press, one such copy, and,

(b) If within one calendar year from such day the State Government shall require the printer to deliver other such copies not exceeding two in number, then within one calendar month after the day on which any such requisition shall be made by the State Government on the printer, another such copy, or two other such copies, as the State Government may direct.

The copies so delivered being bound, sewed or stitched together and upon the best paper on which any copies of the book shall be printed ³[* * *].

The publisher or other person employing the printer shall, at a reasonable time before the expiration of the said month, supply him with all maps, prints and engravings finished and coloured as aforesaid, which may be necessary to enable him to comply with the requirements aforesaid.

Nothing in the former part of this section shall apply to-

(i) Any second or subsequent edition of a book in which edition no additions or alterations either in the letter-press or in the maps, prints or other engravings belonging to the book have been made, and a copy of the first or some preceding edition of which book has been delivered under this Act, or

(ii) Any ⁴[newspaper] published in conformity with the rules laid down in section 5 of this Act.

——————–

1. The words “or lithographed” omitted by Act 55 of 1955, sec. 9 (w.e.f. 1-7-1956).

2. Subs. by Act 3 of 195 1, sec. 3 and Sch., for “the States”.

3. The words “or lithographed” omitted by Act 55 of 1955, sec. 9 (w.e.f 1-7-1956).

4. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “periodical work”.

Section 10. Receipt for copies delivered under section 9.

The officer to whom a copy of a book is delivered under the last foregoing section shall give to the printer a receipt in writing there for.

Section 11. Disposal of copies delivered under section 9.

The copy delivered pursuant to clause (a) of the first paragraph of section 9 of this Act shall be disposed of as the State Government shall from time to time determine.

Any copy or copies delivered pursuant to clause (b) of the said paragraph shall be ¹[transmitted to the Central Government].

——————–

1. Subs. by the A.0. 1948, for certain words.

Section 11 A. Copies of newspapers printed in India to be delivered gratis to Government.

¹[Copies of newspapers printed in India to be delivered gratis to Government. The printer of every newspaper in ²[India] shall deliver at such place and to such officer as the State Government may, by notification in the Official Gazette, direct, and free of expense to the Government, two copies of each issue of such newspaper as soon as it is published.]

——————–

1. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.

2. Subs. by Act 3 of 195 1, sec. 3 and Sch., for “the States”.

Section 11 B. Copies of newspapers to be delivered to Press Registrar.

¹[Copies of newspapers to be delivered to Press Registrar. Subject to any rules that may be made under this Act, the publisher of every newspaper in India shall deliver free of expense to the Press Registrar one copy of each issue of such newspaper as soon as it is published.]

——————–

1. Ins. by Act 55 of 1955, sec. 10 (w.e.f. 1-7-1956).

Section 12. Penalty for printing contrary to rule in section 3.

Whoever shall print or publish any book or paper otherwise than in conformity with the rule contained in section 3 of this Act, shall, on conviction before a Magistrate, be punished by fine not exceeding ¹[two thousand] rupees, or by simple imprisonment for a term not exceeding ²[six months], or by both.

——————–

1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “five thousand”.

2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “two years”.

Section 13. Penalty for keeping press without making declaration required by section 4.

Whoever shall keep in his possession any such press as aforesaid, ³[In contravention of any of the provisions contained in section 4 of this Act], shall, on conviction before a Magistrate, be punished by fine not exceeding ¹[two thousand] rupees, or by simple imprisonment for a term not exceeding ²[six months] or by both.

——————–

1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “five thousand”.

2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “two years”.

3. Subs. by act 55 of 1955, sec. 11, for “without making such a declaration as is required by section 4 of this Act” (w.e.f. 1-7-1956).

Section 14. Punishment for making false statement.

Any person who shall, in making ³[any declaration or other statement) under the authority of this Act, make a statement which is false, and which he either knows or believes to be false, or does not believe to be true, shall, on conviction before a Magistrate, be punished by fine not exceeding ¹[two thousand] rupees, and imprisonment for a term not exceeding ²[six months].

——————–

1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “five thousand”.

2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “two years”.

3. Subs. by Act 55 of 1955, sec. 12, for “any declaration” (w.e.f 1-7-1956).

Section 15. Penalty for printing or publishing newspaper without conforming to rules.

³[(1)] Whoever shall ²[edit], print or publish any ⁴[newspaper], without conforming to the rules hereinbefore laid down, or whoever shall ²[edit], print or publish, or shall cause to be ²[edited], printed or published, any ⁵[newspaper], knowing that the said rules have not been observed with respect to ⁶[that newspaper], shall, on conviction before a Magistrate, be punished with fine not exceeding ¹[two thousand] rupees, or imprisonment for a term not exceeding ²[Six months] or both.

⁷[(2) Where an offence is committed in relation to a newspaper under sub-section (1), the Magistrate may, in addition to the punishment imposed under the said sub-section, also cancel the declaration in respect of the newspaper.]

——————–

1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “five thousand”.

2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “two years”.

3. Section 15 re-numbered as sub-section (1) of that section by Act 26 of 1960, sec. 5 (w.e.f. 1-10-1960).

4. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “such periodical work as is hereinbefore described”.

5. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “such periodical work”.

6. Subs. by Act I 4 of 1922, sec. 3 and Sch. 1, for “that work”.

7. Ins. by Act 26 of 1960, sec. 5 (w.e.f. 1-10-1960).

Section 15 A. Penalty for failure to make a declaration under section 8.

¹[Penalty for failure to make a declaration under section 8. If any person who has ceased to be a printer or publisher of any newspaper fails or neglects to make a declaration in compliance with section 8, he shall, on conviction before a Magistrate, be punishable by fine not exceeding two hundred rupees.]

——————–

1. Ins. by Act 55 of 1955, sec. 13 (w.e.f. 1-7-1956).

Section 16. Penalty for not delivering books or not supplying printer with maps.

¹[Penalty for not delivering books or not supplying printer with maps. If any printer of any such book as is referred to in section 9 of this Act shall neglect to deliver copies of the same pursuant to that section, he shall for every such default forfeit to the Government such sum not exceeding fifty rupees as a Magistrate having jurisdiction in the place where the book was printed may, on the application of the officer to whom the copies should have been delivered or of any person authorised by that officer in this behalf, determine to be in the circumstances a reasonable penalty for the default, and, in addition to such sum, such further sum as the Magistrate may determine to be the value of the copies which the printer ought to have delivered.

If any publisher or other person employing any such printer shall neglect to supply him, in the matter prescribed in the second paragraph of section 9 of this Act with the maps, prints or engravings which may be necessary to enable him to comply with the provisions of that section, such publisher or other person shall for every such default forfeit to the Government such sum not exceeding fifty rupees as such a Magistrate as aforesaid may, on such an application as aforesaid, determine to be in the circumstances a reasonable penalty for the default, and, in addition to such sum, such further sum as the Magistrate may determine to be the value of the maps, prints or engravings which such publisher or other person ought to have supplied.]

——————–

1. Subs. by Act IO of 1890, sec. 5, for the former secs. 16 and 17.

Section 16 A. Penalty for failure to supply copies of newspapers gratis to Government.

¹[Penalty for failure to supply copies of newspapers gratis to Government. If any printer of any newspaper published in ²[India] neglects to deliver copies of the same in compliance with section 11A, he shall, on the complaint of the officer to whom copies should have been delivered or of any person authorised by that officer in this behalf, be punishable, on conviction by a Magistrate having jurisdiction in the place where the newspaper was printed, with fine which may extend to fifty rupees for every default.]

——————–

1. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.

2. Subs. by Act 3 of 195 1, sec. 3 and Sch., for “the States”.

Section 16 B. Penalty for failure to supply copies of newspapers to Press Registrar.

¹[Penalty for failure to supply copies of newspapers to Press Registrar. If any publisher of any newspaper published in India neglects to deliver copies of the same in compliance with section 11B, he shall, on the complaint of the Press Registrar, be punishable, on conviction by a Magistrate having jurisdiction in the place where the newspaper was printed, by fine which may extend to fifty rupees for every default.]

——————–

1. Ins. by Act 55 of 1955, sec. 14 (w.e.f 1-7-1956).

Section 17. Recovery of forfeitures and disposal thereof and of fines.

Any sum forfeited to the Government under ¹[section 16] maybe recovered, under the warrant of the Magistrate determining the sum, or of his successor in office, in the manner authorised by the ²[Code of Criminal Procedure (10 of 1882) for the time being in force, and within the period prescribed by the Indian Penal Code (45 of 1860), for the levy of a fine.

³[* * *]

——————–

1. Subs. by Act 11 of 1923, sec. 2 and Sch. 1, for “the last foregoing section”.

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

3. The second paragraph rep. by the A.0. 1937.

Section 18. Registration of memoranda of books.

There shall be kept at such office, and by such officer as the State Government shall appoint in this behalf, a book to be called a Catalogue of Books printed in ¹[India], wherein shall be registered a memorandum of every book which shall have been delivered ²[pursuant to clause (a) of the first paragraph of section 9] of this Act. Such memorandum shall (so far as may be practicable) contain the following particulars (that is to say): -

(1) The title of the book and the contents of the title page, with a translation into English of such title and contents, when the same are not in the English language;

(2) The language in which the book in written;

(3) The name of the author, translator, or editor of the book or any part thereof,

(4) The subject;

(5) The place of printing and the place of publication;

(6) The name or firm of the printer and the name or firm of the publisher;

(7) The date of issue from the press or of the publication;

(8) The number of sheet leaves or pages;

(9) The size;

(10) The first, second or other number of the edition;

(11) The number of copies of which the edition consists;

(12) Whether the book is printed, ³[cyclostyled or lithographed];

(13) The price at which the book is sold to the public; and

(14) The name and residence of the proprietor of the copyright or of any portion of such copyright.

Such memorandum shall be made and registered in the case of each book as soon as practicable after the delivery of the ⁴[copy there of pursuant to clause (a) of the first paragraph of section 91 ⁵[* * *]

——————–

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

2. Subs. by Act IO of 1890, sec. 6, for “pursuant to section 9”.

3. Subs. by Act 55 of 1955, sec. 15, for “or lithographed” (w.e.f. 1-7-1956).

4. Subs. by Act IO of 1890, sec. 6, for “copies thereof in manner aforesaid”.

5. Last sentence of sec. 18 rep. by Act 3 of 1914, sec. 15 and Sch. 11.

Section 19. Publication of memoranda registered.

The memoranda registered during each quarter in the said Catalogue shall be published in the Official Gazette, as soon as may be after the end of such quarter, and a copy of the memoranda so published shall be sent ¹[* * *] to the Central Government ²[* * *].

——————–

1. The words “to the said Secretary of State, and” rep. by the A.0. 1948.

2. The word “respectively” omitted by the A.0. 1948.

Section 19 A. Appointment of Press Registrar and other officers.

¹[PART VA

REGISTRATION OF NEWSPAPERS

——————–

1. Part VA containing sections 19A to 19L ins, by Act 55 of 1955, sec. 16 (w.e.f. 1-7-1956).

The Central Government may appoint a Registrar of newspapers for India and such other officers under the general superintendence and control of the Press Registrar as may be necessary for the purpose of performing the functions assigned to them by or under this Act, and may, by general or special order, provide for the distribution or allocation of functions to be performed by them under this Act.

Section 19 B. Register of newspapers.

(1) The Press Registrar shall maintain in the prescribed manner a Register of newspapers.

(2) The Register shall, as far as may be practicable, contain the following particulars about every newspaper published in India, namely: -

(a) The title of the newspaper;

(b) The language in which the newspaper is published;

(d) The name of the editor, printer and publisher of the newspaper;

(e) The place of printing and publication;

(f) The average number of pages per week;

(g) The number of days of publication in the year;

(h) The average number of copies printed, the average number of copies sold to the public and the average number of copies distributed free to the public, the average being calculated with reference to such period as may be prescribed;

(i) Retail selling price per copy;

(j) The names and addresses of the owners of the newspaper and such other particulars relating to ownership as may be prescribed;

(k) Any other particulars, which may be prescribed.

(3) On receiving information from time to time about the aforesaid particulars, the Press Registrar shall cause relevant entries to be made in the Register and may make such necessary alterations or corrections therein as may be required for keeping the Register up-to-date.

Section 19 C. Certificates of registration.

On receiving from the Magistrate under section 6 a copy of the declaration in respect of a newspaper ¹[and on the publication of such newspaper, the Press Registrar shall], as soon as practicable thereafter, issue a certificate of registration in respect of that newspaper to the publisher thereof.

——————-

1. Subs. by Act 26 of 1960, sec. 6, for certain words (w.e.f. 1-10-1960).

Section 19 D. Annual statement, etc., to be furnished by newspapers.

It shall be the duty of the publisher of every newspaper-

(a) To furnish to the Press Registrar an annual statement in respect of the newspaper at such time and containing such of the particulars referred to in sub-section (2) of section 19B as may be prescribed;

(b) To publish in the newspaper at such times and such of the particulars relating to the newspaper referred to in sub section 19 B as may be specified in this behalf by the Press Registrar.

Section 19 E. Returns and reports to be furnished by newspapers.

The publisher of every newspaper shall furnish to the Press Registrar such returns, statistics and other information with respect to any of the particulars referred to in sub-section (2) of section 19B as the Press Registrar may from time to time require.

Section 19 F. Right of access to records and documents.

The press Registrar or any gazetted officer authorised by him in writing in this behalf shall, for the purpose of the collection of any information relating to a newspaper under this Act, have access to any relevant record or document relating to the newspaper in the possession of the publisher thereof, and may enter at any reasonable time any premises where he believes such records or document to be and may inspect or take copies of the relevant records or documents or ask any question necessary for obtaining any information required to be furnished under this Act.

Section 19 G. Annual report.

The press registrar shall prepare, in such form and at such time each year as may be prescribed, an annual report containing a summary of the information obtained by him during the previous year in respect of the newspapers in India and giving an account of the working of such newspapers, and copies thereof shall be forwarded to the Central Government.

Section 19 H. Furnishing of copies of extracts from Register.

On the application of nay each year as may be prescribed, an annual report containing a summary of the information obtained by him during the previous year in respect of the newspapers in India and giving an account of the working of such newspapers, and copies thereof shall be forwarded to the Central Government.

Section 19 I. Delegation of powers.

Subject to the provisions of this Act and regulations made thereunder, the Press Registrar may delegate all or any of his powers under this Act to any officer subordinate to him.

Section 19 J. Press Registrar and other officers to be public servants.

The Press Registrar and all officers appointed under this Act shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

Section 19 K. Penalty for contravention of section 19D or section 19E, etc.

If the publisher of any newspaper –

(a) Refuses or neglects to comply with the provisions of section 19D or section 19E; or ¹[* * *]

(b) Publishers in the newspaper in pursuance of clause (b) of section 19D any particulars relating to the newspaper which he has reason to believe to be false, he shall be punishable with fine may extend to five hundred rupees.

——————–

1. Clause (b) omitted by Act 26 of 1960, sec 7 (w.e.f. 1-10-1960).

Section 19 L. Penalty for improper disclosure of information.

If any person engaged in connection with the collection of information under this Act wilfully discloses any information or the contents of any return given or furnished under this Act otherwise than in the execution of his duties under this Act of for the purposes of the prosecution of an offence under this Act or under the Indian Penal Code (45 of 1860), he shall be punishable 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 20. Power of State Government to make rules.

¹[Power of State Government to make rules. (1) The State Government may, be notification in the Official Gazette, make such rules (not inconsistent with the rules made by the Central Government under section 20A) as may be necessary or desirable for carrying out the objects of this Act.

(2) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before the State Legislature.]

——————–

1. Subs by act 20 of 1983, sec 2 and Sch., for section 20 (w.e.f. 15-3-1984).

Section 20 A. Power of Central Government to make rules.

¹[Power of Central Government to make rules. (1) The Central Government may, by notification in the Official Gazette, make rules. -

(a) Prescribing the particulars which a declaration made and subscribed under section 5 may contain; ²[and the form and manner in which the names of the printer, publisher, owner and editor of a newspaper and the place of its printing and publication may be printed on every copy of such newspaper];

³[(b) Prescribing the manner in which copies of any declaration attested by the official seal of a Magistrate or copies of any order refusing to authenticate any declaration and to the Press Registrar;]

(d) Prescribing the manner in which a Register may be maintained under section 19B and the particulars, which it may contain;

(e) Prescribing the particulars in which an annual statement to be furnished by the publisher of a newspaper to the Press Registrar may contain;

(f) Prescribing the form and manner in which an annual statement under clause (a) of section 19D, or any returns, statistics or other information under section 19E, may be furnished to the Press Registrar;

(g) Prescribing the fees for furnishing copies of extracts from the Registrar and the manner in which such copies may be furnished;

(h) Prescribing the manner in which a certificate of registration may be issued in respect of a newspaper;

(i) Prescribing the form in which, and the time within which, annual reports may be prepared by the Press Registrar and forwarded to the Central Government.

⁴[(2) Every rule made under this section shall be laid as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or ⁵in 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.]

——————–

1. Ins. by Act 55 of 1955, sec 18 (w.e.f. 1-7-1956).

2. Ins. by Act 26 of 1960, sec 08 (w.e.f. 1-10-1960).

3. Subs. by Act 26 of 1960, sec 08, for clause (b) (w.e.f. 1-10-1960).

4. Subs. by Act 26 of 1960, sec. 8, for sub-section (2) (w.e.f 1-10-1960).

5. Subs. by Act 20 of 1983, sec. 2 and Sch., for certain words (w.e.f 15-3-1984).

Section 20 B. Rules made under this Act may provide that contravention thereof shall be punishable.

¹[Rules made under this Act may provide that contravention thereof shall be punishable. Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with fine, which may extend to one hundred rupees.]

——————–

1. Ins. by Act 26 of 1960, sec. 9 (w.e.f 1-10-1960).

Section 21. Power to exclude any class of books from operation of Act.

¹[The State Government may, by notification in the Official Gazette], exclude any class of books ²[or papers] from the operation of the whole or any part or parts of this Act:

³[Provided that no such notification in respect of any class of newspapers shall be issued without consulting the Central Government.]

——————–

1. Subs. by the A.0. 1937, for certain words.

2. Ins. by Act 11 of 1915, see.2 and Sch. 1.

3. Ins. by Act 26 of 1960, sec. 10 (w.e.f. 1-10-1960).

Section 22. Extent.

¹[Extent. This Act extends to the whole of India ²[* * *]. ]

——————–

1. Ins. by Act 55 of 1955, sec. 19, original section 22 was rep. by Act 10 of 1890, sec. 7 (w.e.f 1-7-1956).

2. The words “except the State of Jammu and Kashmir” omitted by Act 16 of 1965, sec. 4 (w.e.f 1-1 1-1965).

Section 23. Commencement of Act.

[Rep. by the Repealing Act, 1870 (14 ofl870), sec. Sch., Pt and I. II.]

Advocates Act

November 30, 2014

Section 1. Short title, extent and commencement

²(1) This Act may be called the Advocates Act, 1961.

²[(2) It extends to the whole of India]

(3) It ³[shall, in relation to the territories other than those referred to in sub-section (4) come into force] on such date ⁴ as the Central Government may, by notification in the Official Gazette, appoint, and different dates3 may be appointed for different provisions of this Act.

⁵[(4) This Act shall, in relation to the State of Jammu and Kashmir6 and the Union territory of Goa, Daman and Diu, come into force on such date7 as the Central Government may, by notification in the Official Gazette, appoint in this behalf, and different dates may be appointed for different provisions of this Act.

1. Subs, by Act 60 of 1973, sec. 2, for sub-section (2) (w.e.f. 31-1-1974).
2. The Act has been extended to The Union territory of Dadra & Nagar Haveli by Regulation 8 of 1963. The Union territory of Pondicherry by Act 26 of 1968, sec. 3 and Sch.

3. Subs, by Act 60 of 1973, sec. 2 (w.e.f. 31-1-1974).
4. The following are the Notifications by which different dates have been appointed for different provisions of this Act:-

Notification	Date	Provisions
S.O. 1870, dated 7^th August, 1961	16-08-61	Chapters I, II and VII.
S.O. 2790, dated 24^th November, 1961	01-12-61	Chapter III and sub-section (2) of section 50.
S.O. 2919, dated 13^th December, 1961	15-12-61	Sub-section (1) of section 50.
S.O. 297, dated 24^th January, 1962	24-01-62	Section 51 and 52.
S.O. 958, dated 29^th March, 1962	29-03-62	Section 46,
S.O. 50, dated 4^th January, 1963	04-01-63	Section 32 and Chapter VI [except section 46, sub-section (1) and (2) of section 50, section 51 and 52.]
S.O. 2509, dated 31^st August, 1963	01-09-63	Chapter V
S.O. 63, dated 7^th June 1968 in the Union territory of Pondicherry	10-06-68	Chapters I, II and III, section 32, Chapters IV, V, VI, VII and VIII.
S.O. 1500, dated 5^th April, 1969	01-06-69	Sections 29, 31, 33 and 34 of Chapter IV .
G.S.R. 84(E), dated 21^st February, 1979	01-06-69	in the Union territory of Goa, Daman and Diu Except section 30.

5. Sub-section (4) ins. By Act 60 of 1973, sec, 2.
6. 1-8-1986 vide G.S.R. 1946(E), dated 15-7-1986 (except section 30) the Act is enforced in the State of Jammu and Kashmir.
7. 1-6-1979, vide G.S.R. 84(E)/1979, (except section 30) the Act is enforced in Goa, Daman and Diu.

Section 2. Definitions.

¹[(1)] In this Act, unless the context otherwise requires,

(a) “advocate” means an advocate entered in any roll under the provisions of this Act;

(b) “appointed day”, in relation to any provision of this Act, means the day on which that provision comes into force;

(d) “Bar Council” means a Bar Council constituted under this Act;

(e) “Bar Council of India” means the Bar Council constituted under section 4 for the territories to which this Act extends;

(f) ³[***]

(g) “High Court”, except in sub-section (1) ⁴[and sub-section (1A)] of section 34 and in sections 42 and 43, does not include a court of the Judicial Commissioner, and, in relation to a State Bar Council, means,

(i) in the case of a Bar Council constituted for a State or for a State and one or more Union Territories, the High Court for the State;

(ii) in the case of the Bar Council constituted for Delhi, ⁵[the High Court of Delhi];

(h) “law graduate” means a person who has obtained a bachelor’s degree in law from any university established by law in India;

(i) “legal practitioner” means an advocate ⁶[or vakil] of any High Court, a pleader mukhtar or revenue agent;

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

(k) “roll” means a roll of advocates prepared and maintained under this Act;

(l) “State” does not include a Union Territory;

(m) “State Bar Council” means a Bar Council constituted under section 3;

(n) “State roll” means a roll of advocates prepared and maintained by a State Bar Council under section 17.

⁷[(2) Any reference in this Act to a law which is not in force in the State of Jammu and Kashmir or in the Union Territory of Goa, Daman and Diu, shall, in relation to that State or that territory, be construed as a reference to the corresponding law, if any, in force in that State or that Territory, as the case may be.]

1. Section 2 renumbered as sub-section (1) thereof by Act 60 of 1973, sec. 2 (w.e.f. 31-1-1974).

2. Clause (c) omitted by Act 107 of 1976, sec. 2 (w.e.f. 15-10-1976).

3. Clause (f) omitted by Act 60 of 1973 sec 3 (w.e.f. 31-01-1974.)

4. Ins. by Act 60 of 1973 sec. 3 (w.e.f. 31-1-1974.)

5. Subs. by Act 60 of 1973 sec. 3 for the High Court of Punjab (w.e.f. 31-1-1974.)

6. Subs. by Act 107 of 1976 sec. 2 for vakil or attorney (w.e.f. 15-10-1976).

7. Ins. by Act 60 of 1973 sec. 3 for vakil or attorney (w.e.f.15-10-1976.)

* Goa is now a state, see Goa, Daman and Diu Reorganisation Act, 1987 (18 of 1987),
sec. 3 (w.e.f. 30-5-1987).

Chapter II

Bar Councils

Section 3. States Bar Councils.

(1) There shall be a Bar Council—

(a) for each of States of Andhra Pradesh, Bihar, Gujarat, ¹[Jammu and Kashmir], ²[Jharkhand] ³[Madhya Pradesh, Chhattisgarh], ⁴[***], ⁵[***], ⁶[Karnataka], Orissa, Rajasthan ⁷[Uttar Pradesh and Uttaranchal], to be known as the Bar Council of that State;

⁸[(b) for the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura to be known as the Bar Council of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh;]

¹⁰[(cc) for the ¹¹[State of Tamil Nadu] and the Union territory of Pondicherry to be known as the Bar Council of Madras*;]

¹²[(ccc) for the States of Maharashtra and Goa, and the Union territories of Dadra and Nagar Haveli and Daman and Diu, to be known as the Bar Council of Maharashtra and Goa;]

¹³[(d) for the States of Punjab and Haryana, and the Union territory of Chandigarh, to be known as the Bar Council of Punjab and Haryana;

(dd) for the State of Himachal Pradesh, to be known as the Bar Council of Himachal Pradesh;]

(e) for the State of West Bengal and the ¹⁴[Union territory of Andaman and Nicobar Islands], to be known as the Bar Council of West Bengal; and

(f) for the Union territory of Delhi, to be known as the Bar Council of Delhi.

(2) A State Bar Council shall consist of the following members, namely:—

(a) in the case of the State Bar Council of Delhi, the Additional Solicitor General of India ex officio ¹⁵[in the case of the State Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura, the Advocate General of each of the State of Assam, Manipur, Meghalaya, Nagaland and Tripura, ex officio; in the case of the State Bar Council of Punjab and Haryana, the Advocate-General of each of the State of Punjab and Haryana, ex officio;] and in the case of any other State Bar Council, the Advocate-General of the State, ex officio;

¹⁶[(b) in the case of a State Bar Council with an electorate not exceeding five thousand, fifteen members, in the case of a State Bar Council with an electorate exceeding five thousand but not exceeding ten thousand, twenty members, and in the case of the State Bar Council with an electorate exceeding ten thousand, twenty-five members, elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council:]

¹⁷[Provided that as nearly as possible one-half of such elected members shall subject to any rules that may be made in this behalf by the Bar Council of India, be persons who have for at least ten years been advocates on a State roll, and in computing the said period of ten years in relation to any such person, there shall be included any period during which the person has been an advocate enrolled under the Indian Bar Councils Act, 1926 (38 of 1926).]

¹⁸[(3) There shall be a Chairman and a Vice-Chairman of each State Bar Council elected by the Council in such manner as may be prescribed.

(3A) Every person holding office as Chairman or as Vice-Chairman of any State Bar Council immediately before the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977) shall, on such commencement, cease to hold office as Chairman or Vice-Chairman, as the case may be:

Provided that every such person shall continue to carry on the duties of his office until the Chairman or the Vice-Chairman, as the case may be, of each State Bar Council, elected after the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), assumes charge of the office.]

¹⁹[(4) An Advocate shall be disqualified from voting at an election under sub-section (2) or for being chosen as, and for being, a member of State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State Bar Council.

(5) Nothing in the proviso to sub-section (2) shall affect the term of office of any member elected before the commencement of the Advocates (Amendment) Act, 1964 (21 of 1964), but every election after such commencement shall be held in accordance with the provisions of the rules made by the Bar Council of India to give effect to the said proviso.]

²⁰[(6) Nothing in clause (b) of sub-section (2) shall affect the representation of elected members in any State Bar Council as constituted immediately before the commencement of the Advocates (Amendment) Act, 1973 (60 of 1973), until that State Bar Council is reconstituted in accordance with the provision of this Act.]

—————

1. Ins. by Act 60 of 1973, sec. 4 (w.e.f. 31-1-1974).

2. Ins. by Act 30 of 2000, sec. 28 (w.e.f. 15-11-2000).

3. Subs. by Act 28 of 2000, sec. 24, for “and Madhya Pradesh” (w.e.f. 1-11-2000).

4. The word “Madras” omitted by Act 26 of 1968, sec. 3 and Sch.—Part I (w.e.f. 24-5-1968).

5. The word “Maharashtra” omitted by the Dadra and Nagar Haveli (Civil Courts and Miscellaneous Provisions) Regulations, 1963 (8 of 1963), sec. 12 (w.e.f. 1-7-1965).

6. Subs. by the Mysore State (Alteration of Name) (Adaptation of Laws on Union Subjects) Order, 1974, for “Mysore” (w.e.f. 1-11-1973).

7. Subs. by Act 29 of 2000, sec. 29, for “and Uttar Pradesh” (w.e.f. 9-11-2000).

8. Subs. by Act 69 of 1986, sec. 19, for clause (b) (w.e.f. 24-12-1986). Earlier clause (b) was substituted by Act 81 of 1971, sec. 34(3) and by Act 34 of 1986, sec. 16.

9. Subs. by Act 34 of 1973, sec. 5, for “the Union territory of the Laccadive, Minicoy and Amindivi Islands” (w.e.f. 1-11-1973).

10. Ins. by Act 26 of 1968, sec. 3 and Sch.—Part I (w.e.f. 26-5-1968).

11. Subs. by the Madras State (Alteration of Name) (Adaptation of Laws on Union Subjects) Order, 1970, for “State of Madras” (w.e.f. 14-1-1969). * Now Tamil Nadu.

12. Subs. by Act 18 of 1987, sec. 21, for clause (ccc) (w.e.f. 30-5-1987). Earlier clause (cc) was inserted by the Dadra and Nagar Haveli (Civil Courts and Miscellaneous Provisions) Regulations, 1963 (8 of 1963), regulation 12 and was re-lettered as clause (ccc) by Act 26 of 1968, sec. 3 and Sch.—Part I (w.e.f. 26-5-1968) and it was amended by Act 60 of 1973, sec. 4 (w.e.f. 31-1-1974).

13. Subs. by Act 53 of 1970, sec. 24, for clause (d) (w.e.f. 25-1-1971).

14. Subs. by Act 81 of 1971, sec. 34, for “Union Territories of Tripura and the Andaman and Nicobar Islands” (w.e.f. 21-1-1972).

15. Ins. by Act 60 of 1973, sec. 4 (w.e.f. 31-1-1974).

16. Subs. by Act 60 of 1973, sec. 4, for clause (b) (w.e.f. 31-1-1974).

17. Ins. by Act 21 of 1964, sec. 2 (w.e.f. 16-5-1964).

18. Subs. by Act 38 of 1977, sec. 2, for sub-section (3). Earlier sub-section (3) was substituted by Act 107 of 1976, sec. 3 (w.e.f. 13-9-1976).

19. Ins. by Act 21 of 1964, sec. 2 (w.e.f. 16-5-1964).

20. Ins. by Act 60 of 1973, sec. 4 (w.e.f. 31-1-1974).

Section 4. Bar Council of India.

(1) There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely:

(a) the Attorney-General of India, ex officio;

(b) the Solicitor-General of India, ex officio;

¹[***]

²[(1 A) No person shall be eligible for being elected as a member of the Bar Council of India unless he possesses the qualifications specified in the proviso to sub-section (2) of section 3.]

³[(2) There shall be a Chairman and a Vice-Chairman of the Bar Council of India elected by the Council in such manner as may be prescribed.

(2A) A person holding office as Chairman or as Vice-Chairman of the Bar Council of India immediately before the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), shall, on such commencement, cease to hold office as Chairman or Vice-Chairman, as the case may be :

PROVIDED that such person shall continue to carry on the duties of his office until the Chairman or the Vice-Chairman, as the case may be, of the Council, elected after the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), assumes charge of the office.]

⁴[(3) The term of office of a member of the Bar Council of India elected by the State Bar Council shall

(i) in the case of a member of a State Bar Council who holds office ex officio, be two years from the date of his election[or till he ceases to be a member of the State Bar Council, whichever is earlier;] and

(ii) in any other case, be for the period for which he holds office as a member of the State Bar Council:

PROVIDED that every such member shall continue to hold as a member of the Bar Council of India until his successor is elected.]

1. Clause (bb) omitted by Act 38 of 1977 sec. 3 (w.e.f. 31-10-1977).

2. Inserted by Act 60 of 1973 sec 5 (w.e.f. 31-1-1974)..

3. Substituted by Act 38 of 1977 sec 3 for sub-section (2) (w.e.f. 31-10-1979).

4. Inserted by Act 21 of 1964 sec.3

Section 5. Bar Council to be body corporate.

Every Bar Council shall be a body corporate having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and to contract, and may by the name by which it is known sue and be sued.

Section 6. Functions of State Bar Councils.

(1) The functions of a State Bar Council shall be

(a) to admit persons as advocates on its roll;

(b) to prepare and maintain such roll;

(d) to safeguard the rights, privileges and interests of advocates on its roll;

¹[(dd) to promote the growth of Bar Associations for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub-section (2) of this section and clause (a) of sub-section (2) of section 7;]

(e) to promote and support law reform;

²[(ee) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest;

(eee) to organise legal aid to the poor in the prescribed manner;]

(f) to manage and invest the funds of the Bar Council;

(g) to provide for the election of its members;

³[(gg) to visit and inspect universities in accordance with the directions given under clause (i) of sub-section (1) of section 7;]

(h) to perform all other functions conferred on it by or under this Act; (i) to do all other things necessary for discharging the aforesaid functions.

⁴[(2) A State Bar Council may constitute one or more funds in the prescribed manner for the purpose of

(a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates;

(b) giving legal aid or advice in accordance with the rules made in this behalf;

⁵[(c) establishing law libraries.]

⁶(3) A State Bar Council may receive any grants, donations, gifts or benefactions for all or any of the purposes specified in sub-section (2) which shall be credited to the appropriate fund or funds constituted under that sub-section.]

1 Inserted by Act 70 of 1993, sec. 2(i)(a).

2. Inserted by Act 60 of 1973 sec. 6 (w.e.f. 31-1-1974).

3. Substituted by Act 70 of 1993 sec. 2(i) (b).

4. Sub-section (2) and (3) subs. by Act 60 of 1973 sec.6 for sub -section (2).

5. Ins by Act 70 of 1993 sec. 2(ii)
6. Sub-sections (2) and (3) subs. by Act 60 of 1973, sec. 6, for sub-section (2) (w.e.f. 31-1-1974).

Section 7. Functions of Bar Council of India.

¹[(1)] The functions of the Bar Council of India shall be

²[***]

(b) to lay down standards of professional conduct and etiquette for advocates;

(c) to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council;

(d) to safeguard the rights, privileges and interests of advocates;

(e) to promote and support law reform;

(f) to deal with and dispose of any matter arising under this Act, which may be referred to it by a State Bar Council;

(g) to exercise general supervision and control over State Bar Councils;

(h) to promote legal education and to lay down standards of such education in consultation with the universities in India imparting such education and the State Bar Councils;

(i) to recognise universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect universities; ³[or cause the State Bar Councils to visit and inspect universities in accordance with such directions as it may give in this behalf;]

⁴[(ia) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest;

(ib) To organise legal aid to the poor in the prescribed manner;

(ic) To recognise on a reciprocal basis foreign qualifications in law obtained outside Indian for the purpose of admission as advocate under this Act;]

(j) To manage and invest the funds of the Bar Council;

(k) To provide for the election of its members;

(l) To perform all other functions conferred on it by or under this Act;

(m) To do all other things necessary for discharging the aforesaid functions;

⁵[(2) The Bar Council of India may constitute one or more funds in the prescribed manner for the purpose of

(a) Giving financial assistance to organise welfare schemes for indigent, disabled or other advocates;

(b) Giving legal aid or advice in accordance with the rules made in this behalf;]

⁶[( c) Establishing law libraries.]

⁵(3) The Bar Council of India may receive any grants, donations, gifts or benefactions for all or any of the purposes specified in sub-section (2) which shall be credited to the appropriate fund or funds constituted under that sub-section].

1. Renumbered as sub-s. (1) by Act 60 of 1973

2. Inserted by Act 70 of 1993.

3. Inserted by Act 60 of 1973.

Section 7A. Membership in international bodies.

¹[7A.- Membership in international bodies

The Bar Council of India may become a member of international legal bodies such as the International Bar Association or the International Legal Aid Association, contribute such sums as it thinks fit to such bodies by way of subscription or otherwise and authorise expenditure on the participation of its representatives in any international legal conference or seminar.]

1. Ins. by Act 60 of 1973 sec. 8 (w.e.f. 31-1-1974).

Section 8. The term of office of an elected member of a State Bar Council.

¹[8. The term of office of an elected member of a State Bar Council.

The than an elected member thereof referred to in Section 54) shall be five years from the date of publication of the result of his election:

Provided that where a State Bar Council fails to provide for the election of its members before the expiry of the said term, the Bar Council of India may, by order for reasons to be recorded in writing, extend the said term, the Bar Council of India may, by order, for reasons to be recorded in writing, extend the said term for a period not exceeding six months.

—————

1. Section 8 subs. by Act 70 of 1993, sec. 4, for section 8 (w.e.f. 26-12-1993).

Section 8A. Constitution of Special Committee in the absence of election.

¹ Constitution of Special Committee in the absence of election.

(1) Where a State Bar Council fails to provide for the election of its members before the expiry of the term of five years or the extended term, as the case may be, referred to in section 8, the Bar Council of India shall, on and from the date immediately following the day of such expiry, constitute a Special Committee consisting of

(i) the ex officio member of the State Bar Council referred to in clause (a) of sub-section (2) of section 3 to be the Chairman :

PROVIDED that where there are more than one ex officio members, the senior most amongst them shall be the Chairman; and

(ii) two members to be nominated by the Bar Council of India from amongst advocates on the electoral roll of the State Bar Council, to discharge the functions of the State Bar Council until the Bar Council is constituted under this Act.

(2) On the constitution of the Special Committee and until the State Bar Council is constituted

(a) all properties and assets vesting in the State Bar Council shall vest in the Special Committee;

(b) all rights, liabilities and obligations of the State Bar Council, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations of the Special Committee;

(c) all proceedings pending before the State Bar Council in respect of any disciplinary matter or otherwise shall stand transferred to the Special Committee.

(3) The Special Committee constituted under sub-section (1) shall, in accordance with such directions as the Bar Council of India may give to it in this behalf, hold elections to the State Bar Council within a period of six months from the date of its constitution under sub-section (1), and where, for any reason the Special Committee is not in a position to conduct election within the said period of six months, the Bar Council of India may, for reasons to be recorded by it in writing, extend the said period.

—————

1. Section 8A subs. by Act 70 of 1993, sec. 4, for section 8 (w.e.f. 26-12-1993).

Section 9. Disciplinary Committees.

(1) A Bar Council shall constitute one or more disciplinary committees, each of which shall consist of three persons of whom two shall be persons elected by the Council from amongst its members and the other shall be a person co-opted by the Council from amongst advocates who possess the qualifications specified in the proviso to sub-section (2) of section 3 and who are not members of the Council, and the senior-most advocate amongst the members of a disciplinary committee shall be the Chairman thereof.

(2) Notwithstanding anything contained in sub-section (1), any disciplinary committee constituted prior to the commencement of the Advocates (Amendment) Act, 1964, (21 of 1964) may dispose of the proceedings pending before it as if this section had not been amended by the said Act.

Section 9A. Constitution of legal aid committees

¹[9A. Constitution of legal aid committees

(1) A Bar Council may constitute one or more legal aid committees each of which shall consist of such number of members, not exceeding nine but not less than five, as may be prescribed.

(2) The qualifications, the method of selection and the term of office of the member of a legal aid committee shall be such as may be prescribed.]

1. Ins by Act 60 of 1973 sec. 9 (w.e.f. 31-1-1974.)

Section 10. Constitution of committee other than disciplinary committees.

(1) A State Bar Council shall constitute the following standing committees, namely,

(a) an executive committee consisting of five members elected by the Council from amongst its members;

(b) an enrolment committee consisting of three members elected by the Council from amongst its members.

(2) The Bar Council of India shall constitute the following standing committees, namely,

(a) an executive committee consisting of nine members elected by the Council from amongst its members;

(b) a legal education committee consisting of ten members, of whom five shall be persons elected by the Council from amongst its members and five shall be persons co-opted by the Council who are not members thereof.

(3) A State Bar Council and the Bar Council of India may constitute from amongst its members such other committees as it may deem necessary for the purposes of carrying out the provisions of this Act.

Section 10A. Transaction of business by Bar Councils and committees thereof.

¹[10A. Transaction of business by Bar Councils and committees thereof

²[(1) The Bar Council of India shall meet at New Delhi or at such other place as it may, for reasons to be recorded in writing, determine.

(2) A State Bar Council shall meet at its headquarters or at such other place as it may, for reasons to be recorded in writing, determine.]

(3) The committees other than disciplinary committees constituted by the Bar Councils shall meet at the headquarters of the respective Bar Councils.

(4) Every Bar Council and every committee thereof except the disciplinary committees shall observe such rules of procedure in regard to the transaction of business at their meetings as may be prescribed.

(5) The disciplinary committees constituted under section 9 shall meet at such times and places and shall observe such rules of procedure in regard to the transaction of business at their meetings as may be prescribed.]

1 Inserted by Act 60 of 1973 Sec. 10 (w.e.f. 31-1-1974).

2 Substituted by Act 70 of 1993. sec. 5,

Section 10B. Disqualification of members of Bar Council.

¹[10B.] Disqualification of members of Bar Council

An elected member of a Bar Council shall be deemed to have vacated his office if he is declared by the Bar Council of which he is a member to have been absent without sufficient excuse from three consecutive meetings of such Council, or if his name is, for any cause, removed from the roll of advocates or if he is otherwise disqualified under any rule made by the Bar Council of India.

—————

1. Section 10A renumbered as section 10B by Act 60 of 1973, sec. 10 (w.e.f. 31-1-1974).

Section 11. Staff of Bar Council.

(1) Every Bar Council shall appoint a secretary and may appoint an accountant and such number of other persons on its staff as it may deem necessary.

(2) The secretary and the accountant, if any, shall possess such qualifications as may be prescribed.

Section 12. Accounts and audit.

(1) Every Bar Council shall cause to be maintained such books of accounts and other books in such form and in such manner as may be prescribed.

(2) The accounts of a Bar Council shall be audited by auditors duly qualified to act as auditors of companies under the Companies Act, 1956 (1 of 1956), at such times and in such manner as may be prescribed.

¹[(3) As soon as may be practicable at the end of each financial year, but not later than the 31st day of December of the year next following, a State Bar Council shall send a copy of its accounts together with a copy of the report of the auditors thereon to the Bar Council of India and shall cause the same to be published in the Official Gazette.

(4) As soon as may be practicable at the end of each financial year, but not later than the 31st day of December of the year next following the Bar Council of India shall send a copy of its accounts together with a copy of the report of the auditors thereon to the Central Government and shall cause the same to be published in the Gazette of India.]

———

1. Sub-sections (3) and (4) subs. by Act 63 of 1973, sec. 11, for sub-section (3) (w.e.f.31-1-1974).

Section 13. Vacancies in Bar Councils and Committees thereof not to invalidate action taken.

No act done by a Bar Council or any committee thereof shall be called in question on the ground merely of the existence of any vacancy in, or any defect in the constitution of the Council or committee, as the case may be.

Section 14. Election to Bar Councils not to be questioned on certain grounds.

No election of a member to a Bar Council shall be called in question on the ground merely that due notice thereof has not been given to any person entitled to vote thereat, if notice of the date has, not less than thirty days before that date, been published in the Official Gazette.

Section 15. Power to make rules.

(1) A Bar Council may make rules to carry out the purposes of this Chapter.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for

¹(a) the election of members of the Bar Council by secret ballot including the conditions subject to which persons can exercise the right to vote by postal ballot, the preparation and revision of electoral rolls and the manner in which the results of election shall be published;

²[***]

³[(c) the manner of election of the Chairman and the Vice-Chairman of the Bar Council];

(d) the manner in which and the authority by which doubts and disputes as to the validity of an election to the Bar Council ⁴[or to the office of the Chairman or Vice-Chairman] shall be finally decided.

⁵[***]

(f) the filling of casual vacancies in the Bar Council;

(g) the powers and duties of the Chairman and the Vice-Chairman of the Bar Council;

⁶[(ga) the constitution of one or more funds by a Bar Council for the purpose of giving financial assistance or giving legal aid or advice referred to in sub-section (2) of section 6 and sub-section (2) of section 7;

⁶[***](gb) organisation of legal aid and advice to the poor, constitution and functions of committees and sub-committees for that purpose and description of proceedings in connection with which legal aid or advice may be given];

(h) the summoning and holding of meetings of the Bar Council, ⁷[* * *]the conduct of business thereat, and the number of members necessary to constitute a quorum;

(i) the constitution and functions of any committee of the Bar Council and the term of office of members of any such committee;

(j) the summoning and holding of meetings, the conduct of business of any such committee, and the number of members necessary to constitute a quorum;

(k) the qualifications and the conditions of service of the secretary, the accountant and other employees of the Bar Council;

(l) the maintenance of books of accounts and other books by the Bar Council;

(m) the appointment of auditors and the audit of the accounts of the Bar Council;

(n) the management and investment of the funds of the Bar Council.

(3) No rules made under this section by a State Bar Council shall have effect unless they have been approved by the Bar Council of India.

—————

1. Subs. by Act 60 of 1973, sec. 12, for clause (a) (w.e.f. 31-1-1974).

2. Clause (b) omitted by Act 60 of 1973, sec. 12 (w.e.f. 31-1-1974).

3. Clause (c) ins. by Act 38 of 1977, sec. 5 (w.r.e.f. 31-10-1977).

4. Ins. by Act 38 of 1977, sec. 5 (w.r.e.f. 31-10-1977).

5. Clause (e) omitted by Act 23 of 1966, sec. 3 (w.r.e.f. 16-8-1961).

6. Ins. by Act 60 of 1973, sec. 12 (w.e.f. 31-1-1974).

7. The words “the times and places where such meetings are to be held” omitted by Act 60 of 1973, sec. 12 (w.e.f. 31-1-1974).

Chapter III

Admission And Enrolment Of Advocates

Section 16. Senior and other advocates.

(1) There shall be two classes of advocates, namely, senior advocates and other advocates.

(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, ¹[standing at the Bar or special knowledge of experience in law] he is deserving of such distinction.

(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.

(4) An advocate of the Supreme Court who was a senior advocate of that court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate :

²[PROVIDED that where any such senior advocate makes an application before the 31st December, 1965 to the Bar Council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly].

1 Substituted by Act 60 of 1993 for words “experience and standing at the Bar”.

2 Added by Act 21 of 1964.

Section 17. State Bar Councils to maintain roll of advocates.

(1) Every State Bar Council, shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of

(a) all persons who were entered as advocates on the roll of any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), immediately before the appointed day ¹[including persons, being citizens of India, who before the 15th day of August, 1947, were enrolled as advocates under the said Act in any area which before the said date was comprised within India as defined in the Government of India Act, 1935, and who at any time] express an intention in the prescribed manner to practise within the jurisdiction of the Bar Council;

(b) all other persons who are admitted to be advocates on the roll of the State Bar Council under this Act on or after the appointed day.

(2) Each such roll of advocates shall consist of two parts, the first part containing the names of senior advocates and the second part, the names of other advocates.

(3) Entries in each part of the roll of advocates prepared and maintained by a State Bar Council under this section shall be in the order of seniority, ²[and, subject to any rule that may be made by the Bar Council of India in this behalf, such seniority shall be determined] as follows:

(a) the seniority of an advocate referred to in clause (a) of sub-section (1) shall be determined in accordance with his date of enrolment under the Indian Bar Council Act, 1926 (38 of 1926);

(b) the seniority of any person who was a senior advocate of the Supreme Court immediately before the appointed day shall, for the purposes of the first part of the State roll, be determined in accordance with such principles as the Bar Council of India may specify;

³[***]

(d) the seniority of any other person who, on or after the appointed day, is enrolled as a senior advocate or is admitted as an advocate shall be determined by the date of such enrolment or admission, as the case may be;

⁴[(e) notwithstanding anything contained in clause (a), the seniority of an attorney enrolled whether before or after the commencement of the Advocates (Amendment) Act, 1980 as an advocate shall be determined in accordance with the date of his enrolment as an attorney.]

(4) No person shall be enrolled as an advocate on the roll of more than one State Bar Council.

1. Substituted by Act 60 of 1973 for words “and who within the prescribed time”.

2. Substituted by Act 21 of 1964 for words “and, such seniority shall be determined”.
3. Clause (c) omitted by Act 60 of 1973, sec. 14 (w.e.f. 31-1-1974).
4. Inserted by Act 47 of 1980.

Section 18. Transfer of name from one State roll to another.

(1) Notwithstanding anything contained in section 17, any person whose name is entered as an advocate on the roll of any State Bar Council may make an application in the prescribed form to the Bar Council of India for the transfer of his name from the roll of that State Bar Council to the roll of any other State Bar Council and, on receipt of any such application the Bar Council of India shall direct that the name of such person shall, without the payment of any fee, be removed from the roll of the first mentioned State Bar Council and entered in the roll of the other State Bar Council and the State Bar Councils concerned shall comply with such direction

¹[PROVIDEO that where any such application for transfer is made by a person against whom any disciplinary proceeding is pending or where for any other reason it appears to the Bar Council of India that the application for transfer has not been made bona fide and that the transfer should not be made, the Bar Council of India may, after giving the person making the application an opportunity of making a representation in this behalf, reject the application].

(2) For the removal of doubts it is hereby declared that where on an application made by an advocate under sub-section (1), his name is transferred from the roll of one State Bar Council to that of another, he shall retain the same seniority in the latter roll to which he was entitled in the former roll.

1. Added by Act 21 of 1964.

Section 19. State Bar Councils to send copies of rolls of advocates to the Bar Council of India.

Every State Bar Council shall send to the Bar Council of India an authenticated copy of the roll of advocates prepared by it for the first time under this Act and shall thereafter communicate to the Bar Council of India all alterations in, the addition to, any such roll, as soon as the same have been made.

Section 20. Special provision for enrolment of certain Supreme Court advocates

¹[20. Special provision for enrolment of certain Supreme Court advocates

(1) Notwithstanding anything contained in this chapter, every advocate who is entitled as of right to practise in the Supreme Court immediately before the appointed day and whose name is not entered in any State roll may, within the prescribed time, express his intention in the prescribed form to the Bar Council of India for the entry of his name in the roll of a State Bar Council and on receipt thereof the Bar Council of India shall direct that the name of such advocate shall, without payment of any fee, be entered in the roll of that State Bar Council, and the State Bar Council concerned shall comply with such direction.

(2) Any entry in the State roll made in compliance with the direction of the Bar Council of India under sub-section (1) shall be made in the order of seniority determined in accordance with the provisions of sub-section (3) of section 17.

(3) Where an advocate referred to in sub-section (1) omits or fails to express his intention within the prescribed time, his name shall be entered in the roll of the State Bar Council of Delhi].

1. Subs. by Act 60 of 1973 sec. 15 for section 20 (w.e.f. 31-1-1974).

Section 21. Disputes regarding seniority.

(1) Where the date of seniority of two or more persons is the same, the one senior in age shall be reckoned as senior to the other.

¹[(2) Subject as aforesaid, if any dispute arises with respect to the seniority of any person, it shall be referred to the State Bar Council concerned for decision.]

—————

1. Subs. by Act 60 of 1973, sec. 16, for sub-section (2) (w.e.f. 31-1-1974).

Section 22. Certificate of enrolment

¹[22. Certificate of enrolment,

(1) There shall be issued a certificate of enrolment in the prescribed form by the State Bar Council of every person whose name is entered in the roll of advocates maintained by it under this Act.

(2) Every person whose name is so entered in the State roll shall notify any change in the place of his permanent residence to the State Bar Council concerned within ninety days of such change.]

1. Section 17 subs. By Act No. 60 of 1973 sec. 22 (w.e.f. 31-1-1974).

Section 23. Right of pre-audience.

(1) The Attorney General of India shall have pre-audience over all other advocates.

(2) Subject to the provisions of sub-section (1), the Solicitor-General of India shall have pre-audience over all other advocates.

(3) Subject to the provisions of sub-sections (1) and (2), the Additional Solicitor-General of India shall have pre-audience over all other advocates.

¹[(3A) Subject to the provisions of sub-sections (1), (2) and (3), the second Additional Solicitor-General of India shall have pre-audience over all other advocates.]

(4) Subject to the provisions of sub-section (1), ²[(2), (3) and (3A)] the Advocate General of any State shall have pre-audience over all other advocates, and, the right of pre-audience among Advocates-General inter se shall be determined by their respective seniority.

(5) Subject as aforesaid

(i) Senior advocates shall have pre-audience over other advocates; and

(ii) The right of pre-audience over senior advocates inter se and other advocates inter se shall be determined by their respective seniority.

1. Ins. By Act No. 47 of 1980 sec. 3 (w.e.f. 29-11-1980).

2. Subs. by Act 47 of 1980 for the brackets, figures and words “(2) and (3)”.

Section 24. Persons who may be adopted as advocates on a State roll.

(1) Subject to the provisions of this Act, and the rules made there under, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfills the following conditions, namely:

(a) He is a citizen of India:

Provided that subject to the other provisions contained in this Act, a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practise law in that other country;

(b) He has completed the age of twenty-one years;

(i) Before the ¹[12th day of March, 19671 from any University, in the territory of India; or

(ii) Before the 15th of August, 1947, from any University in any area which was comprised before that date within India as defined by the Government of India Act, 1935; or

²[(iii) After the 12th day of March, 1967, save as provided in sub-clause (iii) After undergoing a three years course of study in law from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or

(iiia) After undergoing a course of study in law, the duration of which is not less than two academic years commencing from the academic year 1967-68 or any earlier academic year from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or]

³(iv) In any other case, from any University outside the territory of India, if the degree is recognised ‘for the purpose of this Act by the Bar Council of India] or;

⁴[He is a barrister and is called to the Bar on or before the 31st day of December, 1976 ⁵[or has passed the articled clerks’ examination or any other examination specified by the High Court at Bombay or Calcutta for enrolment as an attorney of that High Court;] or has obtained such other foreign qualification in law as is recognised by the Bar Council of India for the purpose of admission as an advocate under this Act]:

⁶[(d) * * *]

(e) He fulfills such other conditions as may be specified in the rules made the State bar Council under this Chapter;

⁷[(f) He has paid, in respect of the enrolment, stamp duty, if any, chargeable under the Indian Stamp Act 1899, and an enrolment fee payable to the State Bar Council of ⁸[six hundred rupees and to the Bar Council of India, one hundred and fifty rupees by way of a bank draft drawn in favour of that Council]:

Provided that where such person is a member of the Scheduled Castes or the Scheduled Tribes and produces a certificate to the effect from such authority as may be -scribed, the enrolment fee payable by him to the State Bar Council shall be⁹[one hundred rupees and to the Bar Council of India, twenty-five rupees].

¹⁰[Explanation -For the purposes of this sub-section, a person shall be deemed to have obtained a degree in law from a University in India on the date on which the results of the examination for that degree are published by the University on its notice-board or otherwise declaring him to have passed that examination].

(2) Notwithstanding anything contained in subsection (1) ¹¹[a vakil or a pleader who is a law graduate] may be admitted as an advocate on a State roll, if he

(a) Makes an application for such enrolment in accordance with the revisions of this Act, not later than two years from the appointed, day, and

(b) Fulfills the conditions specified in clauses (a), (b) and (f) of subsection (1)

¹²[(3) Notwithstanding anything contained in subsection (1) a person who

(a) ¹³[* * *] has, for at least three years, been a vakil or a pleader or a mukhtar or was entitled at any time to be enrolled under any law ¹³[* * *] as an advocate of a High Court (including a High Court of a former Part B State) or of a Court of Judicial Commissioner in any Union territory; or

¹⁴[(aa) Before the 1st day of December, 1961, was entitled otherwise than as an advocate to practise the profession of law (whether by way of pleading or acting or both) by virtue of the provisions of any law, or who would have been so entitled had he not been in public service on the said date; or]

¹⁵[(b) * * *]

(c) Before the 1st day of April, 1937, has been an advocate of any High Court in any area which was comprised within Burma as defined in the Government of India Act, 1935-, or

(d) Is entitled to be enrolled as an advocate under any rule made by the Bar Council of India in this behalf, may be admitted as an advocate on a State roll if he

(i) Makes an application for such enrolment in accordance with the provisions of this Act; and

(ii) Fulfills the conditions specified in clauses (a), (b), (e) and (f) of sub-section

¹⁶[(4) * * *]

1. Subs. by Act 60 of 1973 sec. 18 for 28th day of February 1963 (w.e.f. 31-1-1974).

2. Subs. By Act No. 60 of 1973 sec 18 for clause (iii) (w.e.f. 31-1-1974).

3. Ins by act 21 of 1964 sec. 13.

4. Subs. by Act 60 of 1973 sec. 18 for he is a barrister (w.e.f. 31-1-1974).

5. Ins. By Act No. 107 of 1976 sec. 6 (w.e.f. 15-10-1976).

6. Clause (d) omitted by Act 60 of 1973 sec. 18 (w.e.f. 31-1-1974).

7. Clause (f) subs. by Act 60 of 1973 sec. 18 (w.e.f. 31-1-1974).

8. Subs. By Act No. 70 of 1993 sec 6.

9. Subs. By Act No. 70 of 1993 sec 6.

10. Ins. By Act No. 14 of 1962 sec. 2

11. Subs by Act 21 of 1964 sec. 13 for certain words.

12. Sub-section (3) and (4) ins. by Act 21 of 1964 sec. 13.

13. The words before the 31st day of March 1964 and then in force omitted by act 33 of 1968 sec. 2 (w.e.f. 5-6-1968).

14. Sub-clause (aa) ins by act 60 of 1973 sec. 18 (w.e.f. 31-1-1974).

15. Sub clause (b) omitted by Act 60 of 1973 sec. 18 (w.e.f. 31-1-1974).

16. Sub-section (4) omitted by Act 107 of 1976 sec. 6.

Section 24A. Disqualification for enrolment

¹24A. Disqualification for enrolment

(1) No person shall be admitted as an advocate on a State roll

(a) If he is convicted of an offence involving moral turpitude.

(b) If he is convicted of an offence under the provision s of the Untouchables (Offences) Act, 1955.

²(c) (Note:- Ins. by Act 70 of 1993, sec.7) If he is dismissed or removed from employment or office under the State or any charge involving moral turpitude.

Explanation- In this clause, the expression “State” shall have the meaning assigned to it under article 12 of the Constitution.

Provided that the disqualification for enrolment as aforesaid shall cease to have effect after a period of two years has elapsed since his ³release or dismissal or, as the case may be, removal.

(2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty is dealt with under the provision of the Probation of Offenders Act, 1958 (20 of 1958).

—————

1. Ins. by Act 60 of 1973, sec. 19 (w.e.f. 31-1-1974).

2. Ins. by Act 70 of 1993, sec. 7(i) (w.e.f. 26-12-1993).

3. Subs. by Act 70 of 1993, sec. 7(ii), for “release” (w.e.f. 26-12-1993).

Section 25. Authority to whom applications for enrolment may be made.

An application for admission as an advocate shall be made in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposes to practise.

Section 26. Disposal of an application for admission as an Advocate.

(1) State Bar Council shall refer every application for admission as an advocate to its enrolment committee, and subject to the provisions of sub-section (2) and (3),¹[and to any direction that may be given in writing by the State Bar Council in this behalf] such committee shall dispose of the application in the prescribed manner:

²[Provided that the Bar Council of India may, if satisfied, either on a reference made to it in this behalf or otherwise, that any person has got his name entered on the roll of advocates by misrepresentation as to an essential fact or by fraud or undue influence, remove the name of such person from the roll of advocates after giving him an opportunity of being heard.]

(2) Where the enrolment committee of State Bar Council proposes to refuse any such application, it shall refer the application for opinion to the Bar Council of India and every such reference shall be accompanied by a statement of the grounds in support of the refusal of the application.

(3) The enrolment committee of State Bar Council shall dispose of any application referred to the Bar Council of India under sub-section (2) in conformity with the opinion of the Bar Council of India.

¹[(4) Where the enrolment committee of a State Bar Council has refused any application for admission as an advocate on its roll, the State Bar Council shall as soon as may be, send intimation to all other State Bar Councils about such refusal stating the name, address and qualifications of the person whose application was refused and the grounds for the refusal.]

1. Ins. By Act 21 No. of 1964 sec. 14

2. Added by Act No.21 of l964. sec. 14

Section 26A. Power to remove names from roll.

¹[26A. Power to remove names from roll.

-A State Bar Council may remove from the State roll the name of any advocate who is dead or from whom a request has been received to that effect.]

1. Subs. by Act No. 60 of 1973 sec 20 for section 26A (w.e.f. 31-1-1974

Section 27. Application once refused not to be entertained by another Bar Council except in certain circumstances.

Where a State Bar Council has refused the application of any person for admission as an advocate on its roll, no other State Bar Council shall entertain an application for admission of such person as an advocate on its roll, except with the previous consent in writing of the State Bar Council which refused the application and of the Bar Council of India.

Section 28. Power to make rules.

(1) A State Bar Council may make rules to carry out the purposes of this Chapter.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for

¹[(a) The time within which and form in which an advocate shall express his intention for the entry of his name in the roll of a State bar Council under Section 20;]

²[(b) * * *]

(c) The form in which an application shall be made to the Bar Council for admission as an advocate on its roll and the manner in which such application shall be disposed of by the enrolment committee of the Bar Council;

(d) The conditions subject to which a person may be admitted as an advocate on any such roll:

(e) The instilments in which the enrolment fee may be paid.

(3) No rules made under this Chapter shall have effect unless the Bar Council of India has approved them.

1. Clause (a) subs. by Act No. 60 of 1973 sec 21.

2. Clause (b) Omitted by Act No. 60 of 1973 sec. 21 (w.e.f. 31-1-1974)

Chapter IV

Right to practice

Section 29. Advocates to be the only recognised class of persons entitled to practice law.

Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.

Section 30. Right of advocates to practise.

Subject to provisions of this Act, every advocate whose name is entered in the ¹[State roll] shall be entitled as of right to practise throughout the territories to which this Act extends,

(i) In all Courts including the Supreme Court;

(ii) Before any tribunal or person legally authorised to take evidence; and

(iii) Before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.

—————

1. Subs. by Act 60 of 1973, sec. 22, for “common roll” (w.e.f. 31-1-1974).

Section 31. Special provision for attorneys

Omitted by the advocates (amendment) act 1976 (107 of 1976) sec. 7.

Section 32. Power of Court to permit appearances in particular cases.

Notwithstanding anything contained in this chapter, any court, authority or perse may permit any person, not enrolled as an advocate under this Act, to appear before or him in any particular case

Section 33. Advocates alone entitle to practise.

Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act

Section 34. Power of High Courts to make rules.

(1) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto.

¹[(1A) The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary’s advocate upon all proceedings in the High Court or in any Court subordinate thereto.

²[(2) Without prejudice to the provisions contained in sub-section (1), the High Court at Calcutta may make rules providing for the holding of the Intermediate and the Final examinations for articled clerks to be passed by the persons referred to in Section 58 AG for the purpose of being admitted as advocates on the State roll and any other matter connected therewith.]

³[(3) * * *]

1. Ins. By Act No. 60 of 1973 sec 23 (w.e.f. 31-1-1974).

2. Omitted by act 107 of 1976 sec. 8 (w.e.f. 1-1-1977 and again ins. by Act No. 38 of 1977 sec 6 (w.e.f. 31-10-1977.

3. Omitted by Act No. 107 of 1976 sec 8 (w.e.f. 1-1-1977.

Chapter V

Conduct of advocates

Section 35. Punishment of advocates for misconduct.

(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

¹[(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee mid direct the inquiry to be made by any other disciplinary committee of that State Bar Council;]

(2) The disciplinary committee of a State Council ²[***] shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate General of the State.

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely: –

(a) Dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;

(b) Reprimand the advocate;

(c). Suspend the advocate from practice for such period as it may deemed fit;

(d) Remove the name of the advocate from the State roll of advocates.

(4) Where an advocate is suspended from practice under clause(c) of subsection (3) he shall, during the period of suspension, be debarred from practicing in any court or before any authority or person in India.

(5) Where any notice is issued to the Advocate-General under subsection (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

³[Explanation. -In this section ⁴[Section 37 and Section 38] the expression Advocate General’ and ‘Advocate-General of the State’ shall, in relation to the Union territory of Delhi, mean the Additional Solicitor General of India].

1. Ins. by Act 60 of 1973, sec. 24 (w.e.f. 31-1-1974).

2. The words “, if it does not summarily reject the complaint,” omitted by Act 60 of 1973, sec. 24 (w.e.f. 31-1-1974)

3. Ins. by Act 21 of 1964, sec. 17 (w.e.f. 16-5-1964).

4. Ins. by Act 60 of 1973, sec. 24 (w.e.f. 31-1-1974).

Section 36. Disciplinary powers of Bar Council of India.

(1) Where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that any advocate¹[***] whose name is not entered on any State roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

(2) Notwithstanding anything contained in this Chapter the disciplinary committee of the Bar Council of India may,

²[either of its own motion or on a report by any State Bar Council or an application made to it by any person interested], withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same.

(3) The disciplinary committee of the Bar Council of India disposing of any case under this section, shall observe, so far as may be, the procedure laid down in Section 35, the references to the Advocate-General in that section being construed as references to the Attorney-General of India.

(4) In disposing of any proceedings under this section the disciplinary committee of’ the Bar Council of India may make any order which the disciplinary committee of a State Bar Council can make under sub-section (3) of Section 35, and where any proceedings have been withdrawn for inquiry ³before the disciplinary committee of the Bar Council of India the State Bar Council concerned shall give effect to any such order.

1. The words “on the common roll” omitted by Act 60 of 1973, sec. 25 (w.e.f. 31-1-1974).

2. Subs. by Act 60 of 1973, sec. 25, for “of its own motion” (w.e.f. 31-1-1974).

3. Subs. by Act 60 of 1973, sec. 25, for “before the Bar Council of India” (w.e.f. 31-1-1974).

Section 36A. Changes in constitution of disciplinary committees.

¹[36A. Changes in constitution of disciplinary committees.

Whenever in respect of any proceedings under Section 35 or Section 36, a disciplinary committee of the State Bar Council or a disciplinary committee of the Bar Council of India cease to exercise jurisdiction and is succeeded by another committee which has and exercises jurisdiction, the disciplinary committee of the State Bar Council or the disciplinary committee of the Bar Council of India, as the case may be, so succeeding may continue the proceedings from the stage at which the proceedings were so left by its predecessor committee.

1. Ins. By Act 60 No. of 1973 sec. 26 (w.e.f. 31-1-1974.

Section 36B. Disposal of disciplinary proceedings

¹ Disposal of disciplinary proceedings

(1) The disciplinary committee of a State Bar Council shall dispose of the complaint received by it under Section 35 expeditiously and in each case the proceedings shall be concluded within a period of one year from the date of the receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council, as the case may be, failing which such proceedings shall stand transferred to the Bar Council of India which may dispose of the same as if it were a proceeding withdrawn for inquiry under sub-section (2) of Section 36.

(2) Notwithstanding anything contained in sub-section (1), where on the commencement of the Advocates (Amendment) Act” 1973, any proceedings in respect of any disciplinary matter against an advocate is pending before the disciplinary committee of a State Bar Council, that disciplinary committee of the State bar Council shall dispose of the same within a period of six months from the date of such commencement or within a period of one year from the date of the receipt of the complaint or, as the case may be, the date of initiation of the proceedings at the instance of the State Bar Council, whichever is later, failing which such other proceedings shall stand transferred to the Bar Council of India for disposal under sub-section (1).]

—————

1. Ins. by Act 60 of 1973, sec. 26 (w.e.f. 31-1-1974).

Section 37. Appeal to the Bar Council of India.

(1) Any person aggrieved by in order of the disciplinary committee of a State Bar Council made ¹[under Section 35] ²[or the Advocate-General of the State] may, within sixty days of the date of the communication of the order to him, prefer an appeal to the Bar Council of India.

(2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order ²[including an order varying the punishment awarded by the disciplinary committee of the State Bar Council] thereon as it deems fit.

²[Provided that no order of the disciplinary committee of the State Bar Council shall be varied by the disciplinary committee of the Bar Council of India so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard.]

1. Subs. By Act No. 21 Of 1964, for the words ‘under subsection (3) of Section 35.

2. Ins. by Act No. 60 of 1973.

Section 38. Appeal to the Supreme Court.

Any person aggrieved by an order made by’ the disciplinary committee of the Bar Council of India under Section 36 or Section 37 ¹[or the Attorney-General of India or the Advocate-General of the State concerned as the case may be], within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass such order ¹[including an order varying the punishment awarded by the disciplinary committee of the Bar Council of India] thereon as it deems fit:

¹[Provided that no order of the disciplinary committee of the Bar Council of India shall be varied by the Supreme Court so as to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard.]

1. Ins. by Act No. 60 of 1973.

Section 39. Application of Sections 5 and 12 of Limitation Act, 1963.

¹[39. Application of Sections 5 and 12 of Limitation Act, 1963.

The provisions of Sections 5 and 12 of the Limitation Act, 1963, shall, so far as may be, apply to appeals under Section 37 and Section 38.]

1. Subs. by Act 60 of 1973 sec. 29 (w.e.f. 31-1-1974.)

Section 40. Stay of order

¹ [(1)] An appeal, made under Section 37 or Section 38, shall not operate as a stay of the order appealed against, but the disciplinary committee of tire Bar Council of India or the Supreme Court, as the case may be, (c) may for sufficient cause direct the stay of such order on such terms and conditions as it may deem fit.

¹[(2) Where an application is made for the stay of the order before the expiration of the time allowed for appealing there from under Section 37 or Section 38, the disciplinary committee of the State Bar Council, or the disciplinary committee of the Bar Council of India, as the case may be, may, for sufficient cause, direct the stay of such order on such terms and conditions as it may deem fit.]

1. Sec. 40 renumbered as sub-s. (1) thereof and sub-s. (2) inserted by Act 60 of 1973 sec. 30.

Section 41. Alteration in roll of Advocates.

(1) Where an order is made under this Chapter reprimanding or suspending an advocate, a record of the punishment shall be entered against his name

(a) In the case of an advocate whose name is entered in a State roll, in that roll

¹[(b) * * * ]

Anywhere any order is made removing an advocate from practice his name shall be struck off the State roll ²[***].

¹[(2) * * *]

(3) Where any advocate is suspended or removed from practice, the certificate granted to him under Section 22, in respect of his enrolment shall be recalled.

1. Omitted by Act No. 60 of 1973.

2. Words “or the common roll, as the cases may be” omitted by Act 60 of 1973.

Section 42. Powers of disciplinary committee.

(1) The disciplinary committee of the Bar Council shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:

(a) Summoning and enforcing the attendance of any person and examining him on oath;

(b) Requiring discovery and production of any documents;

(d) Requisitioning any public record or copies thereof from any court or office;

(e) Issuing commissions for the examination of witness or documents;

(f) Any other matter, which may be prescribed:

Provided that no such disciplinary committee shall have the right to require the attendance of

(a) Any presiding officer of a court except with the previous sanction of the High Court to which court is subordinate;

(b) Any officer of a revenue court except with the previous sanction of the State Government.

(2) All proceedings before a disciplinary committee of a Bar Council shall be deemed to be judicial proceedings within the meaning (.if Sections 193 and 228 of the Indian Penal Code, 1860 (45 of 1960), and every such disciplinary committee shall be deemed to be a civil court for the purpose of Sections 480, 482and 485 of Code of Criminal Procedure, 1898 (5 of 1898).

(3) For the purpose of exercising any of the powers conferred by subsection (1), a disciplinary committee may send to any civil court in the territories to which this Act extends, any summons or other process, for the attendance of a witness or the production of a document required by the committee or any commission which it desires to issue, and civil court shall cause such process to be served or such commission to be issued as the case may be, and may enforce any such process as if it were a process for attendance or production before itself.

¹[(4) Notwithstanding the absence of the Chairman or any member’ of a disciplinary committee on a date fixed for the hearing of a case before it, the disciplinary committee may, if it so thinks fit, hold or continue the proceedings on the date so fixed and no such proceedings and no order made by the disciplinary committee in any such proceedings shall be invalid merely by reason of the absence of the Chairman or member thereof on any such date:

Provided that no final orders of the nature referred to in sub-section (3) of Section 35 can be made in any proceedings unless the Chairman and other members of the disciplinary committee are present.

²(5) Where no final order of the nature referred to in subsection (3) of Section 35 can be made in any proceedings in accordance with the opinion of the Chairman and the members of a disciplinary committee either for want of majority opinion amongst themselves or otherwise, the case, with their opinion thereon, shall be laid before the Chairman of the Bar Council concerned or if the Chairman of’ the Bar Council is acting as the Chairman or a member of the disciplinary committee, before the Vice-Chairman of the Bar Council, and the said Chairman or the Vice-Chairman of the Bar Council, as the case may be, after such hearing as he thinks fit, shall deliver his opinion and the final order of the disciplinary committee shall follow such opinion.]

1. See now the Code of Criminal Procedure, 1973 (Act 2 of 1974), sections 345 (1), 346 and 349.

2. Ins. by Act 60 of 1973, sec. 32 (w.e.f. 31-1-1974).

Section 42A. Power of Bar Council of India and other committees.

¹[42A. Power of Bar Council of India and other committees.

The provisions of Section 42, shall so far as may be, apply in relation to tie Bar Council of India, the enrolment committee, the election committee., the legal aid committee, or any other committee of a Bar Council as they apply in relation to the disciplinary committee of a Bar Council.]

1. Ins. By Act No. 60 of 1973 sec. 33 (w.e.f. 31-1-1974).

Section 43. Cost of proceedings before a disciplinary committee.

The disciplinary committee to a Bar Council may, make such order as to the cost of any proceedings before it as it may deem fit and any such order shall be executable as if it were an order

(a) in the case of an order of the disciplinary committee of the Bar Council of India, of the Supreme Court;

(b) in the case of an order of the disciplinary committee of a State Bar Council, of the High Court.

Section 44. Review of orders by disciplinary committee.

The disciplinary committee of a Bar Council may of its own motion or otherwise review any order ¹[(within sixty days of the date of that order] passed by it under this Chapter:

PROVIDED that no such order of review of the disciplinary committee of a State Bar Council shall have effect unless it has been approved by the Bar Council of India.

—————

1. Ins. by Act 60 of 1973, sec. 34 (w.e.f. 31-1-1974).

Chapter VI

Miscellaneous

Section 45. Penalty for persons illegally practicing in courts and before other authorities.

Any person who practises in any court or before any authority or person, in or before whom he is not entitled to practise under the provisions of this Act, shall be punishable with imprisonment for a term which may extend to six months.

Section 46. Payment of part of enrolment fees to the Bar Council of India

¹46. Payment of part of enrolment fees to the Bar Council of India

[Omitted by Act 70 of 1993]

——–

1. Earlier section 46 was substituted by Act 107 of 1976, sec. 9 (w.e.f. 15-10-1976).

46A. Financial assistance to State Bar Council.

¹[46A. Financial assistance to State Bar Council.

The Bar Council of India may, if it is satisfied that any State Bar Council is in need of funds for the purpose of performing its functions under this Act, give such financial assistance as it deems fit to that Bar Council by way of grant or otherwise.]

1. Ins. By Act No. 60 of 1973 sec. 35 (w.e.f. 31-1-1974).

Section 47. Reciprocity.

(1) Where any country, specified by the Central Government in this behalf by noti fication in the Official Gazette, prevents citizens of India from practising the profession of law or subjects them to unfair discrimination in that country, no subject of any such country shall be entitled to practise the profession of law in India.

(2) Subject to the provisions of sub-section (1), the Bar Council of India may prescribe the conditions, if any, subject to which foreign qualifications in law obtained by persons other than citizens of India shall be recognised for the purpose of admission as an advocate under this Act.

Section 48. Indemnity against legal proceedings.

No suit or other legal proceeding shall lie against any Bar Council or any committee thereof or a member of a Bar Council ¹[or any Committee thereof for any act in good faith done or intended to he done in pursuance of the provisions of this Act or of any rules made there under.

—————

1. Ins. by Act 60 of 1973, sec. 36 (w.e.f. 31-1-1974).

Section 48A. Power of revision.

¹[48A.Power of revision.

(1) The Bar Council of India may, at any time, call for the record of any proceeding under this Act which has been disposed of by a State Bar Council or a Committee thereof, and from which no appeal lies, for the purpose of satisfying itself as to the legality or propriety of such disposal it may pass such orders in relation thereto as it may think fit.

(2) No order, which prejudicially affects any person, shall be passed under this section without giving him a reasonable opportunity of being heard.]

1. Ins. By Act No. 21 of 1964 sec. 19.

Section 48AA. Review.

¹[48AA. Review.

The Bar Council of India or any of its committees. Other than its disciplinary committee, may of its own motion or otherwise review any order, within sixty days of the date of that order, passed by it under this Act.]

1. Ins. By Act No. 60 of 1973 sec. 37 (w.e.f. 31-1-1974).

Section 48B. Power to give directions.

¹[48B.Power to give directions.

(1) For the proper and efficient discharge of the functions of a State Bar Council or any Committee thereof, the Bar Council of India may, in the exercise of its powers of general supervision and control, give such directions to the State Bar Council or any committee thereof as may appear to it to be necessary, and the State Bar Council or the committee shall comply with, such directions.

(2) Where a State Bar Council is unable to perform its functions for any reason whatsoever, the Bar Council of India may, without prejudice to the generality of the foregoing power, give such directions to the ex officio member thereof as may appear to it to be necessary, and such directions shall have effect notwithstanding anything contained in the rules made by the State Bar Council.]

1. Ins. By Act No. 21 of 1968 sec 19.

Section 49. General power of the Bar Council of India to make rules.

¹[(1)] The Bar Council of India may make rules for discharging its functions under this Act and particular, such rules may prescribe.]

²[(a) the conditions subject to which an advocate may he entitled to vote at an election to the State Bar Council, including the qualifications or disqualifications of voters, and the matter in which an electoral roll of voters may be prepared and revised by a State Bar Council;

(ab) Qualifications for membership of a Bar Council and the disqualifications for such membership;

(ac) the time within which and the manner in which effect may be given to the proviso to sub-section (2) of Section 3;

(ad) The manner in which the name of any advocate may be prevented from being entered in more than one State roll; (ae) The manner in which the seniority among advocates may be determined;

³(af) The minimum qualifications required for admission to a course of degree in law in any recognised University;]

(ag) The class or category of persons entitled to be enrolled as advocates;

(ah) The conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a court;]

(b) The form in which an application shall be made for the transfer of the names of advocates from one State roll to another;

(d) The standards of legal education to be observed by university in India and the inspection of Universities for that purpose;

(e) The foreign qualifications in law obtained by person other than citizens of India, which shall be recognised for the purpose of admission as an advocate under this Act;

(f) The procedure to be followed by the disciplinary committee of State Bar Council and by its own disciplinary committee;

(g) The restrictions in the matter of practice to which senior advocates shall be subject;

⁴[(gg) The form of dresses or robes to be worn by advocates, having regard to the climatic conditions, appearing before any court or tribunal];

(h) The fees, which may be levied in respect of any matter under this Act;

²[(i) general principles for guidance of State Bar Councils and the manner in which directions issued or orders made by the Bar Councils of India may be enforced;]

(j) Any other matter, which may be prescribed:

³[Provided that no rules made with reference to clause (c) or clause (gg) shall have effect unless they have approved by the Chief Justice of India]:

¹ [Provided further that] no rules made with reference to clause (e) shall have effect unless they have been approved by the Central Government.

³[(2) Notwithstanding anything contained in the first proviso to sub-section (1), any Rule made with reference to clause (c ) or clause (gg) of the said sub-section and in force immediately before commencement of the Advocates (Amendment) Act, 1973, shall continue in force until altered or amended in accordance with the provisions if this Act ]

1. Section 49 renumbered as sub-section (1) by Act No. 60 of 1973, and sub-section (2) added.

2. Sub. by Act No. 21 of 1964.

3. Subs. by Act No. 60 of 1973.

4. Subs. by Act No. 60 of 1973, for words “Provided that”.

49A. Power of central government to make rules.

¹[49A. Power of central government to make rules.

(1) The Central Government may, by notification in the official Gazette, make for carrying out the purposes of this Act including rules with respect to any matter for which the Bar Council of India or State Bar Council has power to make rules.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for.

(a) Qualification of membership of Bar Council and disqualifications for such membership;

(b) The manner in which the Bar Council of India may exercise supervision and control over state Bar Council and the manner in which the directions issued or orders made by the Bar Council of India may be enforced;

(d) The category of persons who may be exempted from undergoing a course of training and passing an examination prescribed under clause (d) of sub-section (1) of Section24;

(e) The manner in which seniority among advocates may be determined;

(f) The procedure to be followed by a disciplinary committee of a Bar Council in hearing cases and the procedure to be followed by a disciplinary committee of the Bar Council of India in hearing appeals;

(g) Any other matter, which may be prescribed.

(3) Rules under this section may be made either for the whole of India or for all or any of the Bar Councils.

(4) If any provision of a rule made by a bar Council is repugnant to nay provision of a rule made by the Central Government under this section, then, the rule under this section, whether made before or after the rule made by the Bar Council shall prevail and the rule made by the Bar Council shall, to the extent of the repugnancy, be void.

²[(5) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is 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 sessions immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule].

Section 50 Ins. by Act No. 21 of 1964.

2. Subs. by Act No. 60 of 1973 sec. 39 (w.e.f. 31-1-1974. 50. Repeal of certain enactments.

(1) On the date on which a State Bar Council is constituted under this Act, the provisions of Sections 3 to 7 (inclusive), sub-sections (1), (2) and (3) of Section 15 and Section 20 of the Indian Bar Council Act, 1926 (38 of 1926), shall stand repealed in the territory for which the State Bar Council is constituted.

(2) On the date on which Chapter III comes into force, the following shall stand repealed namely.

(a) Sections 6, 7, 18, and 37 of the Legal Practitioners Act, 1879 (18 of 1879) and so much of Sections 8, 9, 16, 17, 19 and 41 of that Act as relate to the admission and enrolment of legal practitioners;

(b) Sections 3, 4 and 6 of the Bombay Pleaders Act, 1920 (Bombay Act 17 of 1920);

(c) So much of Section 8-of the Indian Bar Councils Act, 1926 (38 of 1926), as relate to the admission and enrolment of legal practitioners;

(d) the provisions of the Letters Patent of any High Court and of any other law in so far as they relate to the admission and enrolment of legal practitioners.

(3) On the date on which Chapter IV comes into force, the following shall stand repealed, namely:

(a) Sections-4, 5, 10, and 20 of the Legal Practitioners Act, 1879 (18 of 1879), and so much of Sections 8, 9, 19 and 41 of that Act as confer on legal practitioners the right to practise in any court or before any authority or person;

(b) Sections 5, 7, 8 and 9 of the Bombay Pleaders Act, 1920 (Bombay Act 17 of 1920);

(c) Section 14 of the Indian Bar Councils Act, 1926 (39 of 1926), and so much of Sections 8 and 15 of that Act as confer on legal practitioners the right to practise in any court or before any authority or person;

(d) The Supreme Court Advocates (Practice in High Courts) Act, 1951 (18 of 195 1);

(e) The provisions of the Letters Patent of any High Court and of any other law conferring on legal practitioners the right to practise in any, court or before any authority or person.

(4) On the date on which Chapter V comes into force, the following shall stand repealed, namely:

(a) Sections 12 to 15 (inclusive), Sections 21 to 24 (inclusive) and Sections 39 and 40 of the Legal Practitioners Act, 1879 (19 of 1979), and so much of Sections 16, 17 and 41 of that Act as relate to the suspension, removal or dismissal of legal practitioners;

(b) Sections 24 to 27 (inclusive) of the Bombay Pleaders Act, 1920 (17 of 1920);

(d) The provisions of the Letters Patent of any High Court and of any other law in so far as they relate to the suspension, removal or dismissal of legal practitioners,

(5). When the whole of this Act has come into force

(a) The remaining provisions of the Acts referred to in this section which do not stand repealed by virtue of any of the foregoing provisions of this section (except Sections 1, 3 and 36 of the Legal Practitioners Act, 1879 (19 of 1879) shall stand repealed;

(b) The enactments specified in the Schedule shall stand repealed to the extent mentioned therein.

Section 51. Rule of construction.

On and from the appointed day, references in any enactment to an advocate enrolled by a High Court in any form of words shall be construed as references to an advocate enrolled under this Act.

(2) On the date on which Chapter III comes into force, the following shall stand repealed namely.

Section 52. Saving.

Nothing in this Act shall be deemed to affect the power of the Supreme Court to make rules under Article 145 of the Constitution

(a) for laying down the conditions subject to which a senior advocate shall be entitled to practise in that court;

(b) for determining the persons who shall be entitled to ¹[act or plead] in that court

—————

1. Subs. by Act 70 of 1993, sec. 9, for “act” (w.e.f. 26-12-1993).

Chapter VII

Temporary and transitional provisions

Section 53. Elections to first State Bar Council.

Notwithstanding anything contained in this Act, the elected members of a State Bar Council constituted for the first time under this Act, shall be elected by and from amongst advocates, vakils, pleaders and attorneys who on the date of the election, are entitled as of right to practise in the High Court and are ordinarily practising within the territory for which the Bar Council is to be constituted.

-Where the territory for which the Bar Council is to be constituted includes a Union territory, the expression ‘High Court’ shall include the Court of the Judicial Commissioner of that Union territory.

Section 54. Term of office of members of first State Bar Council.

Term of office of members of first ¹[ * * *] State Bar Council

Notwithstanding anything contained in this Act, the term of office of the ²[* * *] elected members of ¹[* * *] a State Bar Council constituted for the first time, shall be two years from the date of the first meeting of the Council:

³[Provided that such members shall continue to hold office until the State Bar Council is reconstituted in accordance with the provisions of this Act.

1. Words “the Bar Council of India and” omitted by Act 21 of 1964.

2. Words “nominated and” omitted by Act 14 of 1962.

3. Ins. By Act 21 of 1964 sec.22(ii) and shall be deemed to have always been inserted.

Section 55. Right of certain existing legal practitioners not affected. Notwithstanding anything contained in this Act,

(a) Every pleader or vakil practising as such immediately before the date on which Chapter IV comes into force (hereinafter in this section referred to as the said date) by virtue of the provisions of-the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (17 of 1920), or any other law who does not elect to be or is not qualified to be enrolled as an advocate under this Act:

¹[(b) [* * *]

²[(c) every mukhtar practising as such immediately before the said date by virtue the provisions of the Legal Practitioners Act, 1879, or any other law, who does not elect to be, or is not qualified to be, enrolled as an advocate under this Act; (d) Every revenue agent practising as such immediately before the said date by virtue of the provisions of the Legal Practitioners Act, 1879 or any other law];

shall, notwithstanding the repeal by this Act of the relevant provisions of the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (Bombay Act 17 of 1920) or other law, continue to enjoy the same rights as respects practice in any court or revenue office or before any authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed or, as the case may be, to which he was subject immediately before the said date and accordingly the relevant provisions of the Acts or law aforesaid shall have effect in relation to such persons as if they had not been repealed.

—————

1. Clause (b) omitted by Act 107 of 1976, sec. 10 (w.e.f. 1-1-1977).

2. Subs. by Act 21 of 1964, sec. 23, for clause (c) (w.e.f. 16-5-1964).

Section 56. Dissolution of existing Bar Council.

(1) On the constitution under this Act of a State Bar Council other than the Bar Council of Delhi hereinafter referred to as the new Bar Council:

(a) All properties and assets vesting in the corresponding Bar Council shall vest in the new Bar Council;

(b) All rights, liabilities, and obligations of the corresponding Bar Council whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations respectively of this new Bar Council;

(c) All proceedings pending before the corresponding Bar Council in respect of any disciplinary matter or otherwise shall stand transferred to the new Bar Council.

(2) In this section, ‘corresponding Bar Council’ in relation to a State Bar Council, other than the Bar Council of Delhi, means the Bar Council for the High Court in the territory for which the State Bar Council is constituted under this Act.

Section 57. Power to make rules pending the constitution of a Bar Council.

Until a Bar Council is constituted under this Act the power of that Bar Council to make rules under this Act shall be exercised

(a) In the case of the Bar Council of India, by the Supreme Court;

(b) In the case of a State Bar Council, by the High Court.

Section 58. Special provisions during the transitional period.

1[58.Special provisions during the transitional period

(1) Where a State Bar Council has not been constituted under this Act or where a State Bar Council so constituted is unable to perform its functions by reason of any order of a court or otherwise, the functions of the Bar Council or any committee thereof, insofar as they relate to the admission and enrolment of advocates, shall be performed by the High Court in accordance with the provisions of this Act.

(2) Until Chapter IV comes into force, a State Bar Council or a High Court performing the functions of a State Bar Council may enroll any person to be an advocate on a State roll, if he is qualified to be so enrolled under this Act, notwithstanding that no rules have been made under section 28 or that the rules so made have not been approved by the Bar Council of India, and every person so enrolled shall, until that chapter comes into force, be entitled to all the rights of practice conferred on an advocate under section 14 of the Indian Bar Councils Act, 1926 (38 of 1926).

(3) Notwithstanding anything contained in this Act, every person who, immediately before the 1st day of December, 1961, was an advocate on the roll of any High Court under the Indian Bar Councils Act, 1926 (38 of 1926) or who has been enrolled as an advocate under this Act shall, until Chapter IV comes into force, be entitled as of right to practise in the Supreme Court, subject to the rule made by the Supreme Court in this behalf.

(4) Notwithstanding the repeal by sub-section (2) of section 50 of the provisions of the Legal Practitioners Act, 1879 (18 of 1879) or of the Bombay Pleaders Act, 1920 (17 of 1920) 2[or of any other law relating to the admission and enrolment of legal practitioners, the provisions of the Acts and law aforesaid] and any rules made thereunder insofar as they relate to3[the renewal or the issue byway of renewal] of a certificate to a legal practitioner authorising him to practise shall have effect until Chapter IV comes into force and, accordingly, every certificate issued or renewed to legal practitioner (who is not enrolled as an advocate under this Act) which is or purports to be issued or renewed under the provisions of either of the aforesaid Acts4[or of the other law] during the period beginning with the 1st day of December, 1961 and ending with the date on which Chapter IV comes into force, shall be deemed to have been validly issued or renewed.]

1 Inserted by Act 14 of 1962.

2 Words “relating to the admission and enrollment of legal practitioners, the provisions of those Act” substituted by Act 32 of 1962.

3 Words “the issue and renewal” substituted by Act 21 of 1964.

4 Inserted by Act 32 of 1932.

Section 58A. Special provisions With respect to certain Advocates.

¹[58A Special provisions with respect to certain advocates

(1) Notwithstanding anything contained in this Act, all advocates who, immediately before the 26th day of July, 1948, were entitled to practise in the High Court in Allahabad or the Chief Court in Oudh and who under the provisions of the United Provinces High Courts (Amalgamation) Order, 1948 were recognised as advocates entitled to practise in the new High Court of Judicature at Allahabad but whose names were not formally entered on the roll of advocates of that High Court merely by reason of the non-payment of the fee payable to the Bar Council of the said High Court, and all advocates who were enrolled as such between the said date and the 26th day of May, 1952, shall, for the purposes of clause (a) of sub-section (1) of section 17 be deemed to be persons who were entered as advocates on the roll of the said High Court under the Indian Bar Councils Act, 1926 (38 of 1926) and every such person may, on an application being made in this behalf, be admitted as an advocate on the State roll of Uttar Pradesh.

(2) Notwithstanding anything contained in this Act, all advocates who, immediately before the 10th day of October, 1952 were entitled to practise in the High Court of Hyderabad but whose names were not formally entered on the roll of advocates of that High Court merely by reason of the non-payment of the fee payable to the Bar Council of the said High Court shall, for the purposes of clause (a) of sub-section (1) of section 17 be deemed to be persons who were entered as advocates on the roll of the said High Court under the Indian Bar Councils Act, 1926 (38 of 1926) and every such person may, on an application being made in this behalf, be admitted as an advocates on the State roll of Andhra Pradesh or of Maharashtra.

(3) Notwithstanding anything contained in this Act, all advocates who, immediately before the 1st day of May, 1960, were entitled to practise in the High Court of Bombay and who applied to get their names entered on the roll of advocates of the High Court of Gujarat under the provisions of section 8 of the Indian Bar Councils Act, 1926 (38 of 1926), but whose names were not so entered by reason of the repeal of the said provision shall, for the purposes of clause (a) of sub-section (1) of section 17, be deemed to be persons who were entered as advocates on the roll of the High Court of Gujarat under the said Act and every such person may, on an application being made in this behalf, be admitted as an advocate on the State roll of Gujarat.

(4) Notwithstanding anything contained in this Act, all persons who, immediately before the 1st day of December, 1961, were advocates on the roll of the Court of Judicial Commissioner in any Union Territory under any law in force in that territory shall, for the purposes of clause (a) of sub-section (1) of section 17, be deemed to be persons who were entered as advocates on the roll of a High Court under the Indian Bar Councils Act, 1926 (38 of 1926) and every such person may, on an application made in this behalf, be admitted as an advocate on the State roll maintained in respect of that Union Territory.

—————

1. Ins. by Act 21 of 1964, sec. 25 (w.e.f. 16-5-1964).

Section 58AA. Special Provisions in relation to the Union territory of Pondicherry

¹(1) Notwithstanding anything contained in this Act, all persons who, immediately before the date on which the provisions of Chapter II are brought into force in the Union territory of Pondicherry, were entitled to practice the profession of law (whether by way of pleading or acting or both) under any law in force in the said Union territory or who would have been so entitled had they not been in public service on the said date, shall for the purpose of clause( a) of sub section (1) of section 17, be deemed to be persons who were entered as advocates on the roll of a High Court under the Indian Bar Council Act, 1926, and every such person may, on an application made in this behalf within such time as may be specified by the Bar Council of Madras, be admitted as an advocate on the State roll maintained in respect of the said Union territory.

(2) Notwithstanding anything contained in this Act, every person, who immediately before the date on which the provisions of Chapter IV are brought into force in the Union territory of Pondicherry, was practicing the profession of law (whether by way of pleading or action or both or in any other way) by virtue of the provisions of any law in force in the said Union territory of Pondicherry, was practicing the profession of law (whether by way of pleading or acting or both or any other way) by virtue of the provisions of any law in force in the said Union territory, who does not elect to be or is not qualified to be, enrolled as an advocate under sub section (1), shall notwithstanding the repeal of the relevant provisions of such law by the Pondicherry (Extension of Laws) Act, 1968, continue to enjoy the same rights as respects in any court or revenue office or before any authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed, or as the case may be, to which he was subject, immediately before the said date and accordingly the relevant provisions of the law aforesaid shall have effect in relation to such persons as if they had not been repealed.

—————

1. Ins. by Act 26 of 1968, sec. 3 and Sch.—Part I (w.e.f. 10-6-1968).

Section 58AB. Special provisions with respect to certain persons enrolled by Mysore State Bar Council.

¹[58AB. Special provisions with respect to certain persons enrolled by Mysore State Bar Council

Notwithstanding anything contained in this Act or any judgment, decree or order of any court or any resolution passed or direction given by the Bar Council of India, every person who was admitted as an advocate on the State roll by the State Bar Council of Mysore during the period beginning with the 28th day of February, 1963, and ending on the 31st day of March, 1964 on the basis of his having obtained a certificate of pleadership from the High Court of Karnataka, shall, save as otherwise provided, be deemed to have been validly admitted as an advocate on that State roll and accordingly entitled to practise the profession of law (whether by way of pleading or acting or both):

PROVIDED that where any such person has been elected to be enrolled as an advocate on the roll of any other State Bar Council, his name shall be deemed to have been struck off the roll of the State Bar Council, of Karnataka from the date he was enrolled by the other State Bar Council:

PROVIDED FURTHER that the seniority of such person, whether his name is borne on the State roll of the State Bar Council of Karnataka, or on the State roll of any other Bar Council, shall, for the purposes of clause (d) of sub-section (3) of section 17, be determined by reckoning the 16th day of May, 1964, as the date of admission.]

1. Ins by Act 33 of 1968 sec 3 (w.e.f. 5-6-1968 ).

Section 58AC. Special provision with respect to certain persons enrolled by Uttar Pradesh State Bar Council.

¹58AC. Special provisions with respect to certain persons enrolled by Uttar Pradesh State Bar Council

Notwithstanding anything contained in this Act or any judgment, decree or order of any court, every person who was enrolled as an advocate by the High Court during the period beginning with the 2nd day of January, 1962 and ending on the 25th day of May, 1962 and was subsequently admitted as an advocate on the State roll by the State Bar Council of Uttar Pradesh shall be deemed to have been validly admitted as an advocate on that State roll from the date of his enrolment by the High Court and accordingly entitled to practise the profession of law (whether by way of pleading or acting or both).]

1. Secs. 58AC, 58AD, 58AE and 58AF inserted by Act 60 of 1973.

Section 58AD. Special provisions with respect to certain persons migrating India.

¹58AD. Special provisions with respect to certain persons migrating to India

Notwithstanding the repeal by this Act of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), or of any other law relating to the admission and enrolment of legal practitioners (hereafter in this section referred to as such Act or law), every person who migrates to the territory of India from any area which, before the 15th day of August, 1947, was comprised within India as defined in the Government of India Act, 1935, and who has, before such migration, been a pleader, mukhtar or revenue agent in any such area under any law in force therein, may be admitted and enrolled under the relevant provisions of such Act or law as a pleader, mukhtar or, as the case may be, revenue agent, if he

(a) makes an application for the purpose to the appropriate authority under such Act or law; and

(b) is a citizen of India and fulfils other conditions, if any, specified in this behalf by the appropriate authority aforesaid,

and notwithstanding the repeal by this Act of the relevant provisions of such Act or law, every pleader, mukhtar or revenue agent so enrolled shall have the same right as respects practise in any court or revenue office or before any other authority or person and be subject to the disciplinary jurisdiction of the same authority to which he would be subject under the relevant provisions of such Act or law as if they had not been repealed and accordingly, those provisions shall have effect in relation to such persons.

—————

1. Ins. by Act 60 of 1973, sec. 40 (w.e.f. 31-1-1974).

Section 58AE. Special provisions in relation to the Union territory of Goa, Daman and Diu.

¹(1) Notwithstanding anything contained in this Act, all persons who, immediately before the date on which the provisions of Chapter III are brought into force in the Union Territory of Goa, Daman and Diu were entitled to practise the profession of law (whether by way of pleading or acting or both) under any law in force in the said Union Territory or who would have been so entitled had they not been in public service on the said date, shall, for the purpose of clause (a) of sub-section (1) of section 17, be deemed to be persons who were entered as advocates on the roll of a High Court under the Indian Bar Councils Act, 1926 (38 of 1926), and every such person may, on an application made in this behalf within such time as may be specified by the Bar Council of Maharashtra, be admitted as an advocate on the State roll maintained in respect of the said Union Territory:

PROVIDED that the provisions of this sub-section shall not apply to any person who, on the date of the application aforesaid, was not a citizen of India.

(2) Notwithstanding anything contained in this Act, every person who, immediately before the date on which the provisions of Chapter IV are brought into force in the Union Territory of Goa, Daman and Diu, was practising the profession of law (whether by way of pleading or acting or both or in any other way) by virtue of the provisions of any law in force in the said Union Territory, or who does not elect to be or is not qualified to be enrolled as an advocate under sub-section (1), shall notwithstanding the repeal by this Act of the relevant provisions of such law, continues to enjoy the same rights as respects practise in any court or revenue office or before any other authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed, or, as the case may be, to which he was subject, immediately before the said date and accordingly the relevant provisions of the law aforesaid shall have effect in relation to such persons as if they had not been repealed.

(3) On the date on which this Act or any part thereof comes into force in the Union Territory of Goa, Daman and Diu, the law in force in that Union Territory which corresponds to this Act or such part and which does not stand repealed by virtue of the provisions of section 50 of this Act, shall also stand repealed.

—————

1. Ins. by Act 60 of 1973, sec. 40 (w.e.f. 31-1-1974).

Section 58AF. Special provisions in relation to Jammu and Kashmir.

¹58AF. Special provisions in relation to Jammu and Kashmir

(1) Notwithstanding anything contained in this Act, all advocates who, immediately before the date on which the provisions of Chapter III are brought into force in the State of Jammu and Kashmir, were entitled to practise in the High Court of that .State, or who would have been so entitled had they not been in public service on the said date, shall for the purpose of clause (a) of sub-section (1) of section 17, be deemed to be persons who were entered as advocates on the roll of a High Court under the Indian Bar Councils Act, 1926 (38 of 1926), and every such person may, on an application made in this behalf within such time as may be specified by the Bar Council of India, be admitted as an advocate on the State roll maintained in respect of the said State.

(2) Notwithstanding anything contained in this Act, every person who, immediately before the date on which the provisions of Chapter III are brought into force in the State of Jammu and Kashmir, was entitled otherwise than an advocate to practise the profession of law (whether by way of pleading or acting or both) by virtue of the provisions of any law in force in the said State, or who would have been so entitled had he not been in public service on the said date, may be admitted as an advocate on the State roll maintained in respect of the said State, if he

(i) makes an application for such enrolment in accordance with the provisions of this Act; and

(ii) fulfils the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1) of section 24.

(3) Notwithstanding anything contained in this Act, every person who, immediately before the date on which the provisions of Chapter IV are brought into force in the State of Jammu and Kashmir, was practising the profession of law (whether by way of pleading or acting or both or in any other way) by virtue of the provisions of any law in force therein, or who does not elect to be or is not qualified to be enrolled as an advocate under sub-section (1) or sub-section (2), shall, notwithstanding the repeal by this Act of the relevant provisions of such law, continue to enjoy the same rights as respects practise in any court or revenue office or before any other authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed, or as the case may be, to which he was subject, immediately before the said date and accordingly the relevant provisions of the law aforesaid shall have effect in relation to curli nprcnns as if fhpv had not been repealed.

(4) On the date on which this Act or any part thereof comes into force in the State of Jammu and Kashmir, the law in force in that State which corresponds to this Act or such part thereof which does not stand repealed by virtue of the provisions of section 50 of this Act, shall also stand repealed.]

—————

1. Ins. by Act 60 of 1973, sec. 40 (w.e.f. 31-1-1974).

Section 58AG. Special provisions in relation to articled clerks

¹[58AG. Special provisions in relation to articled clerks

Notwithstanding anything contained in this Act, every person who, immediately before the 31st day of December, 1976, has commenced his articleship and passed the Preliminary examination, for the purpose of enrolment as an attorney of the High Court at Calcutta in accordance with the rules made under sub-section (2) of section 34, before the omission of that sub-section by the Advocates (Amendment) Act, 1976 (107 of 1976), may be admitted as an advocate on the State roll if he

(i) passes, on or before the 31st day of December, 1980,

(a) the Final examination in a case where such person has, before the 31st day of December, 1976, passed the Intermediate examination,

(b) the Intermediate and the Final examinations in any other case. Explanation : For the purpose of this clause, the High Court at Calcutta may prescribe such rules as may be necessary under sub-section (2) of section 34, specifying the nature of the examination and any other matter relating thereto;

(ii) makes an application for such enrolment in accordance with the provisions of this Act; and (iii) fulfils the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1) of section 24.]

Section 58B. Special provisions relating to certain disciplinary proceedings.

¹58B. Special provisions relating to certain disciplinary proceedings

(1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll.

(2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56 :

PROVIDED that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian Bar Councils Act, 1926 (38 of 1926), the High Court shall dispose of the case and it shall be lawful for the High Court to exercise for the purpose all powers conferred on it under section 12 of the said Act as if that section had not been repealed:

PROVIDED FURTHER that where the High Court has referred back any case for further inquiry under sub-section (4) of section 12 of the said Act, the proceeding shall stand transferred to the State Bar Council in relation to the High Court as if it were proceeding before a corresponding Bar Council under clause (c) of sub-section (1) of section 56.

(3) If immediately before the said date there is any proceeding in respect of any disciplinary matter pending in relation to any pleader, vakil, mukhtar or attorney, who has been enrolled as an advocate on any State roll under the Act, such proceeding shall stand transferred to the State Bar Council on the roll of which he has been enrolled and be dealt with under this Act as if it were a proceeding arising against him thereunder.

(4) In this section “existing advocate” means a person who was enrolled as an advocate on the roll of any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), and who, at the time when any proceeding in respect of any disciplinary matter initiated against him, is not enrolled as an advocate on a State roll under this Act.

(5) The provisions of this section shall have effect, notwithstanding anything contained in this Act]

1. Inserted by Act 21 of 1964 sec. 25.

Section 59. Removal of difficulties.

¹[59. Removal of difficulties

(1) If any difficulty arises in giving effect to the provisions of this Act, particularly in relation to the transition from the enactments repealed by this Act to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provision not inconsistent with the purposes of this Act, as appear to it to be necessary or expedient for removing the difficulty.

(2) An order under sub-section (1) may be made so as to have retrospective effect from the date not earlier than the 1st day of December, 1961.]

1 Inserted by Act 21 of 1964.

Section 60. Powers of Central Government to make rules.

¹[60. Powers of Central Government to make rules

(1) Until rules in respect of any matter under this Act are made by a State Bar Council and approved by the Bar Council of India, the power to make rules in respect of that matter shall be exercisable by the Central Government.

(2) The Central Government after consultation with the Bar Council of India may by notification in the Official Gazette, make rules under sub-section (1) either for any State Bar Council or generally for all State Bar Councils and the rules so made shall have effect, notwithstanding anything contained in this Act.

(3) Where in respect of any matter any rules are made by the Central Government under this section for any State Bar Council, and in respect of the same matter, rules are made by the State Bar Council and approved by the Bar Council of India, the Central Government may, by notification in the Official Gazette, direct that the rules made by it in respect of such matter shall cease to be in force in relation to that Bar Council with effect from such date as may be specified in the notification and on the issue of such notification, the rules made by the Central Government shall, accordingly, cease to be in force except as respects things done or omitted to be done before the said date.]

1. Inserted by Act 32 of 1962 sec. 4.

SCH1. The Schedule

[Section 50(5)]

Repeal Of Certain Enactments

Short title		Extent of Repeal
	The Legal Practitioners (Women) Act, 1923 (23 of 1923).	The whole
	The Legal Practitioners (Fees) Act, 1926. (21 of 1926).	The whole
	The State Reorganisation Act, 1956 (37 of 1956)	Section 53
	The Bombay Reorganisation Act, 1960 (11 of (1960).	Section 31

Juvenile Justice Act

November 30, 2014

Introduction

The problem of juvenile justice is, no doubt, one of tragic human interest so much so in fact that it is not only confined to this country alone but cuts across national boundaries. Juvenile delinquency laws are characterized by the denature that they prescribe many acts which are regarded as non-criminal if indulged in by elder persons like drinking, smoking, viewing adult films or reading adult literature, etc. The extension of the concept of juvenile delinquency towider limits has drawn adverse criticism on the ground that it is neither necessary nor desirable to use police and courts in private matters which can be well tackled by family themselves.

The first legislation converning children which came in 1850 was the Apprentic Act which provided that children in the age group of 10-18 convicted by courts were intended to be provided with some vocational training which might help their rehabilitation. It was followed by Reformatory Schools Act, 1897. The Indian Jail Committee (1919-1920) brought to the fore the vital need for square trial and treatment of young offenders. Its recommendations prompted the enactment of the Children Act in Madras in 1920. This was followed by Bengal and Bombay Acts in 1922 and 1924 respectively. The three poineer statutes (i.e. Acts concerning Madras, Bengal and Bombay) were extensively amended between 1948 and 1959.

In 1960 at the second United Nations Congress on the Prevention of Crime and Treatment of offenders at London this issue was discussed and some therapeutic recommendations were adopted.

The Central enactment, the Children Act, 1960 was passed to cater to the heads of the Union Territories. To remove same inherent lacuane of the above mentioned Act, the Children (Amendment) Act was passed in 1978. But the need of a uniform legislation regarding juvenile justice for the whole country had been expressed in various fora, including Parliament but it could not be enacted on he ground that the subject matter of such a legislation fell in the State List of the Constitution. To bring the operations of the juvenile justice system in the country in conformity with the UN Standard Minimum Rules for the Administration of Juvenile Justice, Parliament seems to have exercised its power under Article 253 of the Constitution read with Entry 14 of the Union List to make law for the whole of India to fulfill international obligations. On 22nd August, 1986, the Juvenile Justice Bill, 1986 was introduced in the Lok Sabha.

STATEMENT OF OBJECTS AND REASONS

A review of the working of the existing Children Acts would indicate that much greater attention is required to be given to children who may be found in situations of social maladjustment, delinquency or neglect. The justice system as available for adults is not considered suitable for being applied to juvenile. It is also necessary that a uniform juvenile justice system should be available throughout the country which should make adequate provision for dealing with all aspects in the changing social, cultural and economic situation in the country. There is also need for larger involvement of informal systems and community based welfare agencies in the care, protection, treatment, development and rehabilitation of such juveniles.

In this context, the proposed legislation aims at achieving the following objectives:-

(i) To lay down a uniform frame work for juvenile justice in the country so as to ensure that no child under any circumstances is lodged in jail or police lock-up. This is being ensured by establishing Juvenile Welfare Boards and Juvenile Courts;

(ii) To provide for a specialised approach towards the prevention and treatment of juvenile delinquency in its full range in keeping with the development needs of the child found in any situation of social maladjustment;

(iii) To spell out the machinery and infrastructure required for the care, protection, treatment, development and rehabilitation of various categories of children coming within the purview of the juvenile justice system. This is proposed to be achieved by establishing observation homes, juvenile homes for neglected juveniles and special homes for delinquent juveniles;

(iv) To establish norms and standards for the administration of juvenile justice in terms of investigation and prosecution, adjudication and disposition and care, treatment and rehabilitation;

(v) To develop appropriate linkages and coordination between the formal system of juvenile justice and voluntary agencies engaged in the welfare of neglected or society maladjusted children and to specifically define the areas of their responsibilities and roles;

(vi) To constitute special offences in relation to juveniles and provide for punishments therefore;

(vii) To bring the operation of the juvenile justice system in the country in conformity with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice.

As its various provisions come into force in different parts of the country they would replace the corresponding laws on the subject such as Children Act, 1960 and other State enactments on the subject.

The Bill seeks to achieve the above objects.

Act 53 of 1986

The Juvenile Justice Bill, 1986 was passed by both Houses of Parliament. After receiving the assent of the President it came on the Statute Book as the Juvenile Justice Act, 1986 (53 of 1986).

Chapter I – Preliminary

Section 1. Short title, extent, and commencement

(53 of 1986) (1st December, 1986)

An Act to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to and disposition of, delinquent juveniles.

BE it enacted by Parliament in the Thirty-seventh Year of the Republic of India as follows:-

(1) This Act may be called the Juvenile Justice Act, 1986.

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

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and for different States.

Section 2. Definitions

In this Act, unless the context otherwise requires, – (a) “Begging” means -

(i) Soliciting or receiving alms in a public place or entering into any private premises for the purpose of soliciting or receiving alms, whether under the pretence of singing, dancing, fortune-telling, performing tricks or selling articles or otherwise ;

(ii) Exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal ;

(iii) Allowing oneself to be used as an exhibit for the purpose of soliciting or receiving alms ;

(b) “Board” means a Juvenile Welfare Board constituted under section 4;

(c) “Brothel”, prostitute”, “prostitution” and “public place” shall have the meanings respectively assigned to them in the Suppression of Immoral Traffic in Women and Girls Act, 1956 (104 of 1956) ;

(d) “Competent authority” means, in relation to neglected Juveniles, a Board and, in relation to delinquent Juveniles, a Juvenile Court and where no such Board or Juvenile Court has been constituted, includes any court empowered under sub-section (2) of section 7 to exercise the powers conferred on a Board or Juvenile Court ;

(e) ‘Delinquent juvenile’ means a juvenile who has been found to have committed an offence ;

(f) “Fit person” or “fit institution” means any person or institution (not being a police station or jail) found fit by the competent authority to receive and take care of a juvenile entrusted to his or its care and protection on the terms and conditions specified by the competent authority

(g) ‘Guardian’ in relation to a juvenile, includes any person who, in the opinion of the competent authority, having cognizance of any proceeding in relation to a juvenile, has, for the time being, the actual charge of, or control over, that juvenile ;

(h) ‘Juvenile’ means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years ;

(i) “Juvenile Court” means a court constituted under section 5;

(j) “Juvenile home” means an institution established or certified by the State Government under section 9 as a Juvenile home ;

(k) “Narcotic drug’ and ‘psychotropic substance’ shall have the meanings respectively assigned to them in the Narcotic Drugs and psychotropic Substances Act, 1985 (61 of 1985) ;

(l) “Neglected juvenile” means a juvenile who –

(i) Is found begging ; or

(ii) Is found without having any home or settled place of abode and without any ostensible means of subsistence and is destitute ; or

(iii) Has a parent or guardian who is unfit or incapacitated to exercise control over the juvenile ; or

(iv) Lives in a brothel or with a prostitute or frequently goes to any place used for the purpose of prostitution, or is found to associate with any prostitute or any other person who leads an immoral, drunken or depraved life ; or

(v) Who is being or is likely to be abused or exploited for immoral or illegal purposes or unconscionable gain ;

(m) “Observation homes” means any institution or place established or recognised by the State Government under section 11 as an observation home ;

(n) “Offence” means an offence punishable under any law for the time being in force ;

(o) “Place of safety” means any place or institution (not being a police station or jail), the person in charge of which is willing temporarily to receive and take care of a juvenile and which, in the opinion of the competent authority may be a place of safety for the juvenile ;

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

(q) “Probation officer” means an officer appointed as a probation officer

under this Act or under the Probation of Offenders Act, 1958 (20 of 1958);

(r ) “Special home” means an institution established or certified by the State Government under section 10;

(s) “Supervision”, in relation to a juvenile placed under the care of any parent, guardian or other fit person or fit institution under this Act, means the supervision of that juvenile by a probation officer for the purpose of ensuring that the juvenile is properly looked after and that the conditions imposed by the competent authority are complied with ;

(t) All words and expressions used but not defined in this Act and defined in the Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings respectively assigned to them in that Code.

Section 3. Continuation of inquiry in respect of juvenile who has ceased to be a juvenile.

Where an inquiry has been initiated against a juvenile and during the course of such inquiry the juvenile ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person if such person had continued to be a juvenile.

Chapter II – Competent Authorities and Institutions for Juveniles

Section 4. Juvenile Welfare Boards

(1) The State Government may, by notification in the Official Gazette, constitute for any area specified in the notification, one or more Juvenile Welfare Boards for exercising the powers and discharging the duties conferred or imposed on such Board in relation to neglected juveniles under this Act.

(2) A Board shall consist of a Chairman and such other members as the State Government thinks fit to appoint, of whom not less than one shall be a woman; and every such member shall be vested with the powers of a Magistrate under the Code of Criminal Procedure, 1973 (2 of 1974).

(3) The Board shall function as a Bench of Magistrates and shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974), on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the first class.

Section 5. Juvenile Courts

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the State Government may, by notification in the Official Gazette, constitute for any area specified in the notification, one or more Juvenile Courts for exercising the powers and discharging the duties conferred or imposed on such court in relation to delinquent juveniles under this Act.

(2) A Juvenile Court shall consist of such number of Metropolitan Magistrates or Judicial Magistrates of the first class, as the case may be, forming a Bench as the State Government thinks fit to appoint, of whom one shall be designated as the Principal Magistrate; and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974), on a Metropolitan Magistrate or, as the case may be , a Judicial Magistrate of the first class.

(3) Every Juvenile Court shall be assisted by a panel of two honorary social workers possessing such qualifications as may be prescribed, of whom at least one shall be a woman, and such panel shall be appointed by the State Government.

Section 6. Procedure, etc., in relation to Boards and Juvenile Courts

(1) In the event of any difference of opinion among the members of a Board or among the Magistrates of a Juvenile Court, the opinion of the majority shall prevail, but where there is no such majority, the opinion of the Chairman or of the Principal Magistrate, as the case may be, shall prevail.

(2) A Board or Juvenile Court may act notwithstanding the absence of any member of the Board or, as the case may be, any Magistrate of the Juvenile Court, and no order made by the Board or Juvenile Court shall be invalid by reason only of the absence of any member or Magistrate, as the case may be, during any stage of the proceeding.

(3) No person shall be appointed as a member of the Board or as a Magistrate in the Juvenile Court unless he has, in the opinion of the State Government, special knowledge of child psychology and child welfare.

Section 7. Powers of Board and Juvenile Court

(1) Where a Board or a Juvenile Court has been constituted for any area, such Board or Court, shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act have power to deal exclusively with all proceedings under this Act relating to neglected juveniles or delinquent juveniles, as the case may be :

Provided that a Board or a Juvenile Court may, if it is of opinion that it is necessary so to do having regard to the circumstances of the case, transfer any proceedings to any Juvenile Court or Board, as the case may be :

Provided further that where there is any difference of opinion between a Board and a Juvenile Court regarding the transfer of any proceedings under the first proviso, it shall be referred to the Chief Metropolitan Magistrate or, as the case may be, the Chief Judicial Magistrate for decision, and in a case where the District Magistrate is functioning as a Board or a Juvenile Court, such difference of opinion shall be referred to the Court of Session, and the decision of the Chief Metropolitan Magistrate or Chief Judicial Magistrate or, as the case may be, the Court of Session on such reference shall be final.

(2) Where no Board or Juvenile Court has been constituted for any area, the powers conferred on the Board or the Juvenile Court by or under this Act shall be exercised in that area, only by the following, namely :-

(a) The District Magistrate ; or

(b) The Sub-Divisional Magistrate ; or

(c ) Any Metropolitan Magistrate or Judicial Magistrate of the first class, as the case may be.

(3) The powers conferred on the Board or Juvenile Court by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.

Section 8. Procedure to be followed by a Magistrate not empowered under the Act

(1) When any Magistrate not empowered to exercise the powers of a Board or a Juvenile Court under this Act is of opinion that a person brought before him under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, he shall record such opinion and forward the juvenile and the record of the proceeding to the competent authority having jurisdiction over the proceeding.

(2) The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile had originally been brought before it.

Section 9. Juvenile homes

(1) The State Government may establish and maintain as many juvenile homes as may be necessary for the reception of neglected juveniles under this Act.

(2) Where the State Government is of opinion that nay institution other than a home established or maintained under sub-section (1) is fit for the reception of the neglected juveniles to be sent there under this Act, it may certify such institution as a juvenile home for the purpose of this Act.

(3) Every juvenile home to which a neglected juvenile is sent under this Act shall not only provide the juvenile with accommodation, maintenance and facilities for education, vocational training and rehabilitation, but also provide him with facilities for the development of his character and abilities and give him necessary training for protecting himself against moral danger or exploitation and shall also perform such other functions as may be prescribed to ensure all round growth and development of his personality.

(4) The State Government may, by rules made under this Act, provide for the management of juvenile homes, including the standards and the nature of services to be maintained by them and the circumstances under which, and the manner in which, the certification of a juvenile home may be granted or withdrawn.

Section 10. Special homes

(1) The State Government may establish and maintain as many special homes as may be necessary for the reception of delinquent juveniles under this Act.

(2) Where the State Government is of opinion that any institution other than a home established or maintained under sub-section (1) is fit for the reception of the delinquent juveniles to be sent there under this Act, it may certify such institution as a special home for the purposes of this Act.

(3) Every special home to which a delinquent juvenile is sent under this Act shall not only provide the juvenile with accommodation, maintenance and facilities for education, vocational training and rehabilitation, but also provide him with facilities for the development of his character and abilities and give him necessary training for his reformation and shall also perform such other functions as may be prescribed to ensure all round growth and development of his personality.

(4) The State Government may, by rules made under this Act, provide for the management of special homes, including the standards and the nature of services to be maintained by them, and the circumstances under which, and the manner in which, the certification of a special home may be granted or withdrawn.

(5) The rules made under sub-section (4) may also provide for the classification and separation of delinquent juveniles on the basis of age and nature of offences committed by them.

Section 11. Observation homes

(1) The State Government may establish and maintain as many observation homes as may be necessary for the temporary reception of juveniles during the pendency of any inquiry regarding them under this Act.

(2) Where the State Government is of opinion that any institution other than a home established or maintained under sub-section (1) is fit for the temporary reception of juveniles during the pendency of any inquiry regarding them under this Act it may recognise such institution as an observation home for the purposes of this Act.

(3) Every observation home to which a juvenile is sent under this Act shall not only provide the juvenile with accommodation, maintenance and facilities for medical examination and treatment but also provide him with facilities for useful occupation.

(4) The State Government may, by rules made under this Act provide for the management of observation homes, including the standards and the nature of services to be maintained by them, and the circumstances under which, and the manner in which, an institution may be recognised as an observation home or the recognition may be withdrawn.

Section 12. After-care organisations

The State Government may, by rules made under this Act, provide – (a) For the establishment or recognition of after-care organisations and the powers that may be exercised by them for effectively carrying out their functions under this Act :

(b) For a scheme of after-care programme to be followed by such after-care organisations for the purpose of taking care of juveniles after they leave juvenile homes or special homes and for the purpose of enabling them to lead an honest, industrious and useful life ;

(c ) For the preparation or submission of a report by the probation officer in respect of each juvenile prior to his discharge from a juvenile home or special home, as the case may be, regarding the necessity and nature of after-care of such juvenile, the period of such after-care, supervision thereof and for the submission of a report by the probation officer on the progress of each such juvenile ;

(d) For the standards and the nature of services to be maintained by such after-care organisations ;

(e) For such other matters as may be necessary for the purpose of effectively carrying out the scheme of after-care programme of juveniles.

Section 13. Production of neglected juveniles before Boards

(1) If any police officer or any other person or organisation authorised by the State Government in this behalf, by general or special order, is of opinion that a person is apparently a neglected juvenile, such police officer or other person or organisation may take charge of that person for bringing him before a Board.

(2) When information is given to an officer-in-charge of a police station about any neglected juvenile found within the limits of such station, he shall enter in a book to be kept for the purpose the substance of such information and take such action thereon as be deems fit and if such officer does not propose to take charge of the juvenile, he shall forward a copy of the entry made to the Board.

(3) Every juvenile taken charge of under sub-section (1) shall be brought before the Board without any loss of time but within a period of twenty-four hours of such charge taken excluding the time necessary for the journey from the place where the juvenile had been taken charge of to the Board.

(4) Every juvenile taken charge of under sub-section (1) shall, unless he is kept with his parent or guardian, be sent to an observation home (but not to a police station or jail) until he can be brought before a Board.

Section 14. Special procedure to be followed when neglected juvenile has parents

(1) If a person, who in the opinion of the police officer or the authorised person or organisation is a neglected juvenile, has a parent or guardian who has the actual charge of, or control over, the juvenile, the police officer or the authorised person or the organisation may, instead of taking charge of the juvenile, make a report to the Board for initiating an inquiry regarding that juvenile.

(2) On receipt of a report under sub-section (1), the Board may call upon the parent or guardian to produce the juvenile before it and to show cause why the juvenile should not be deal with as a neglected juvenile under the provisions of this Act and if it appears to the Board that the juvenile is likely to be removed from its jurisdiction or to be concealed, it may immediately order his removal (if necessary by issuing a search warrant for the immediate production of the juvenile) to an observation home or a place of safety.

Section 15. Inquiry by Board regarding neglected juveniles

(1) When a person alleged to be a neglected juvenile is produced before a Board, it shall examine the police officer or the authorised person or the organisation who brought the juvenile or made the report and record the substance of such examination and hold the inquiry in the prescribed manner and may make such orders in relation to the juvenile as it may deem fit.

(2) Where a Board is satisfied on inquiry that a juvenile is a neglected juvenile and that it is expedient so to deal with him, the Board may make an order directing the juvenile to be sent to a juvenile home for the period until he ceases to be a juvenile :

Provided further that the Board may, if it is satisfied that having regard to the circumstances of the case it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.

(3) During the pendency of any inquiry regarding a juvenile, the juvenile shall, unless he is kept with his parent or guardian, be sent to an observation home or a place of safety for such period as may be specified in the order of the Board :

Provided that no juvenile shall be kept with his parent or guardian if, in the opinion of the Board, such parent or guardian is unfit or unable to exercise or does not exercise proper care and control over the juvenile.

Section 16. Power to commit neglected juvenile to suitable custody

(1) If the Board so thinks fit, it may, instead of making an order under sub-section (2) of section 15, for sending the juvenile to a juvenile home, make an order placing the juvenile under the care of a parent, guardian or other fit person, on such parent, guardian or fit person executing a bond with or without surety to be responsible for the good behavior and well-being of the juvenile and for the observance of such conditions as the Board may think fit to impose.

(2) At the time of making an order under sub-section (1) or at any time subsequently, the Board may, in addition, make an order that the juvenile be placed under supervision for any period not exceeding three years in the first instance.

(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), if at any time it appears to the Board, on receiving a report from the probation officer or otherwise, that there has been a breach of any of the conditions imposed by it in respect of the juvenile, it may, after making such inquiry as it deems fit, order the juvenile to be sent to a juvenile home.

Section 17. Uncontrollable juveniles

Where a parent or guardian of a juvenile complaints to the Board that he is not able to exercise proper care and control over the juvenile and the Board is satisfied on inquiry that proceedings under this Act should be initiated regarding the juvenile, it may send the juvenile to an observation home or a place of safety and make such further inquiry as it may deem fit and the provisions of section 15 and section 16 shall, as far as may be, apply to such proceedings.

Chapter IV – Delinquent Juveniles

Section 18. Bail and custody of juveniles

(1) When any person accused of a bailable or non-bailable offence and apparently a juvenile is arrested or detained or appears or is brought before a Juvenile Court, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral danger or that his release would defeat the ends of justice.

(2) When such person having been arrested is not released on bail under sub-section (1) by the officer-in-charge of the police station, such officer shall cause him to be kept in an observation home or a place of safety in the prescribed manner (but not in a police station or jail) until he can be brought before a Juvenile Court.

(3) When such person is not released on bail under sub-section (1) by the Juvenile Court it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order.

Section 19. Information to parent or guardian or probation officer

Where a juvenile is arrested, the officer-in-charge of the police station to which the juvenile is brought shall, as soon as may be after the arrest, inform –

(a) The parent or guardian of the juvenile, if he can be found, of such arrest and direct him to be present at the Juvenile Court before which the juvenile will appear; and

(b) The probation officer of such arrest in order to enable him to obtain information regarding the antecedents and family history of the juvenile and other material circumstances likely to be of assistance of the Juvenile Court for making the inquiry.

Section 20. Inquiry by Juvenile Court regarding delinquent juveniles.

Where a juvenile having been charged with an offence appears or is produced before a Juvenile Court shall hold the inquiry in accordance with the provisions of section 39 and may, subject to the provisions of this Act, make such order in relation to the juvenile as it deems fit.

Section 21. Orders that may be passed regarding delinquent juveniles

(1) Where a Juvenile Court is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Juvenile Court may, if it so thinks fit, -

(a) Allow the juvenile to go home after advice or admonition ;

(b) Direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety as that court may require, for the good behavior and well-being of the juvenile for any period not exceeding three years ;

(c ) Direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behavior and well-being of the juvenile for any period not exceeding three years ;

(d) Make an order directing the juvenile to be sent to a special home, -

(i) In the case of a boy over fourteen years of age or of a girl over sixteen years of age, for a period of not less than three years ;

(ii) In the case of any other juvenile, for the period until he ceases to be a juvenile;

Provided that the Juvenile Court may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit :

Provided further that the Juvenile Court may, for reasons to be recorded, extend the period of such stay, but in no case the period of stay shall extend beyond the time when the juvenile attains the age of eighteen years, in the case of a boy, or twenty years in the case of a girl ;

(e) Order the juvenile to pay a fine if he is over fourteen years of age and earns money.

(2) Where an order under clause (b), clause (c ) or clause (e) of sub-section (1) is made, the Juvenile Court may, if it is of opinion that in the interests of the juvenile and of the public it is expedient so to do, in addition make an order that the delinquent juvenile shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the delinquent juvenile :

Provided that if at any time afterwards it appears to the Juvenile Court on receiving a report from the probation officer or otherwise, that the delinquent juvenile has not been of good behavior during the period of supervision or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behavior and well-being of the juvenile it may after making such inquiry as it deems fit, order the delinquent juvenile to be sent to a special home.

(3) The Juvenile Court making a supervision order under sub-section (2), shall explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or fit institution, as the case may be, the sureties, if any, and the probation officer.

(4) In determining the special home, or any person or institution to whose custody a juvenile is to be committed or entrusted under this Act, the court shall pay due regard to the religious denomination of the juvenile to ensure that religious instruction contrary to the religious persuasion of the juvenile is not imparted to him.

Section 22. Orders that may not be passed against delinquent juvenile

(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent juvenile shall be sentenced to death or imprisonment, or committed to prison in default of payment of fine or in default of furnishing security :

Provided that where a juvenile who has attained the age of fourteen years has committed an offence and the Juvenile Court is satisfied that the offence committed is of so serious a nature or that his conduct and behavior have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Juvenile Court, may order the delinquent juvenile to be kept in safe custody in such place and manner as it thinks fit and shall report the case for the orders of the State Government.

(2) On receipt of a report from a Juvenile Court under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such delinquent juvenile to be detained at such place and on such conditions as it thinks fit:

Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which juvenile could have been sentenced for the offence committed.

Section 23. Proceeding under Chapter VIII of the Code of Criminal Procedure not competent against juvenile

Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), no proceeding shall be instituted and no order shall be passed against a juvenile under Chapter VIII of the said Code.

Section 24. No joint trial of juvenile and person not to juvenile

(1) Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, no juvenile shall be charged with or tried for, any offence together with a person who is not a juvenile.

(2) If a juvenile is accused of an offence for which under section 223 of the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in sub-section (1), have been charged and tried together, the court taking cognizance of that offence shall direct separate trials of the juvenile and the other person.

Section 25. Removal of disqualification attaching to conviction.

Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act and shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.

Section 26. Special provision in respect of pending cases

Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Juvenile Court which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that the juvenile has committed the offence.

Chapter V – Procedure of competent authorities generally and appeals and revision from orders of such authorities

Section 27. Sittings, etc., of Boards and Juvenile Courts

(1) A Board or a Juvenile Court shall hold its sittings at such place, on such day and in such manner, as may be prescribed.

(2) A Magistrate empowered to exercise the powers of a Board or, as the case may be, a Juvenile Court under sub-section (2) of section 7 shall, while holding any inquiry regarding a juvenile under this Act, as far as practicable, sit in a building or room different from that in which the ordinary sittings of Civil and Criminal Courts are held, or on different days or at times different from those at which the ordinary sittings of such courts are held.

(3) An inquiry regarding a juvenile under this Act shall be held expeditiously and shall ordinarily be completed within a period of three months from the date of its commencement, unless, for special reasons to be recorded in writing, the competent authority otherwise directs.

Section 28. Persons who may be present before competent authority

(1) Save as provided in this Act, no person shall be present at any sitting of a competent authority, except – (a) Any officer of the competent authority, or

(b) The parties to the inquiry before the competent authority, the parent or guardian of the juvenile and other persons directly concerned in the inquiry including police officers and legal practitioners, or

(2) Notwithstanding anything contained in sub-section (1), if at any stage during an inquiry a competent authority considers it to be expedient in the interest of the juvenile or on grounds of decency or morality that any person including the police officers, legal practitioners, the parent, guardian or the juvenile himself should withdraw, the competent authority may give such direction, and if any person refuses to comply with such direction, the competent authority may have him removed and may, for this purpose, cause to be used such force as may be necessary.

(3) No legal practitioner shall be entitled to appear before a Board in any case or proceeding before it, except with the special permission of that Board.

Section 29. Attendance of parent or guardian of juvenile

Any competent authority before which a juvenile is brought under any of the provisions of this Act may, whenever it so thinks fit, require any parent or guardian having the actual charge of, or control over, the juvenile to be present at any proceeding in respect of the juvenile.

Section 30. Dispensing with attendance of juvenile

If, at any stage during the course of an inquiry, a competent authority is satisfied that the attendance of the juvenile is not essential for the purpose of the inquiry, the competent authority may dispense with his attendance and proceed with the inquiry in the absence of the juvenile.

Section 31. Committal to approved place of juvenile suffering from dangerous disease and his future disposal

(1) When a juvenile who has been brought before a competent authority under this Act is found to be suffering from a disease requiring prolonged medical treatment or physical or mental complaint that will respond to treatment, the competent authority may send the juvenile to any place recognised to be an approved place in accordance with the rules made under this Act for such period as it may think necessary for the required treatment.

(2) Where a juvenile is found to be suffering from leprosy or is of unsound mind, he shall be dealt with under the provisions of the Lepers Act, 1898 (3 of 1898), or the Indian Lunacy Act, 1912 (4 of 1912), as the case may be.

(3) Where a competent authority has taken action under sub-section (1) in the case of juvenile suffering from an infectious or contagious disease, the competent authority before restoring the said juvenile to his partner in marriage, if there has been such, or to the guardian, as the case may be, shall, where it is satisfied that such action will be in the interest of the said juvenile call upon his partner in marriage or the guardian, as the case may be, to satisfy the competent authority by submitting to medical examination that such partner or guardian will not re-infect the juvenile in respect of whom the order has been passed.

Section 32. Presumption and determination of age

(1) Where it appears to a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly as may be.

(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile, and the age recorded by the competent authority to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person.

Section 33. Circumstances to be taken into consideration in making orders under the Act

In making any order in respect of a Juvenile under this Act, a competent authority shall take into consideration the following circumstances, namely :-

(a) The age of the juvenile ;

(b) The state of physical and mental health of the juvenile ;

(d) The reports made by the probation officer ;

(e) The religious persuasion of the juvenile ;

(f) Such other circumstances as may, in the opinion of the competent authority, require to be taken into consideration in the interest of the welfare of the juvenile :

Provided that in the case of a delinquent juvenile, the above circumstances shall be taken into consideration after the Juvenile Court has recorded a finding against the juvenile that he has committed the offence:

Provided further that if no report of the probation officer is received within ten weeks of his being informed under section 19, it shall be open to the Juvenile Court to proceed without it.

Section 34. Sending a juvenile outside jurisdiction

In the case of a neglected or delinquent juvenile whose ordinary place of residence lies outside the jurisdiction of the competent authority before which he is brought, the competent authority may, if satisfied after due inquiry that it is expedient so to do, send the juvenile back to a relative or other person who is fit and willing to receive him at his ordinary place of residence and exercise proper care and control over him, notwithstanding that such place of residence is outside the jurisdiction of the competent authority ; and the competent authority exercising jurisdiction over the place to which the juvenile is sent shall in respect of any matter arising subsequently have the same powers in relation to the juvenile as if the original order had been passed by itself.

Section 35. Reports to be treated as confidential.

The report of the probation officer or any circumstance considered by the competent authority under section 33 shall be treated as confidential :

Provided that the competent authority may, if it so thinks fit, communicate the substance thereof to the juvenile or his parent or guardian and may give such juvenile, parent or guardian an opportunity of producing such evidence as may be relevant to the matter stated in the report.

Section 36. Prohibition of publication of names, etc., of juveniles involved in any proceeding under the Act

(1) No report in any newspaper, magazine or news-sheet of any inquiry regarding a juvenile under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile nor shall any picture of any such juvenile be published :

Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile.

(2) Any person contravening the provisions of sub-section (1) shall be punishable with fine which may extend to one thousand rupees.

Section 37. Appeals

(1) Subject to the provisions of this section, any person aggrieved by an order made by a competent authority under this Act may, within thirty days from the date of such order, prefer an appeal to the Court of Session :

Provided that the Court of Session may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(2) No appeal shall lie from –

(a) Any order of acquittal made by the Juvenile Court in respect of a juvenile alleged to have committed an offence ; or

(b) Any order made by a Board in respect of a finding that a person is not a neglected juvenile.

(3) No second appeal shall lie from any order of the Court of Session passed in appeal under this section.

Section 38. Revision

The High Court may, at any time, either of its own motion or on an application received in this behalf, call for the record of any proceeding in which any competent authority or Court of Session has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit :

Provided that the High Court shall not pass an order under this section prejudicial to any person to any person without giving him a reasonable opportunity of being heard.

Section 39. Procedure in inquiries, appeals and revision proceedings

(1) Save as otherwise expressly provided by this act, a competent authority while holding any inquiry under any of the provisions of this Act, shall follow such procedure as may be prescribed and subject thereto, shall follow, as far as may be, the procedure laid down in the Code of Criminal Procedure, 1973 (2 of 1974), for trials in summons cases.

(2) Save as otherwise expressly provided by or under this Act, the procedure to be followed in hearing appeals or revision proceedings under this Act shall be, as far as practicable, in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

Section 40. Power to amend orders

(1) Without prejudice to the provisions for appeal and revision under this Act, any competent authority may, either on its own motion or on an application received in this behalf, amend any order as to the institution to which a juvenile is to be sent or as to the person under whose care or supervision a juvenile is to be placed under this Act.

(2) Clerical mistakes in orders passed by a competent authority or errors arising therein from any accidental slip or omission may, at any time, be corrected by the competent authority either on its own motion or on an application received in this behalf.

Chapter VI – Special offences in respect of Juveniles

Section 41. Punishment for cruelty to juvenile

(1) Whoever, having the actual charge of, or control over, a juvenile, assaults, abandons, exposes or willfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.

(2) No court shall take cognizance of an offence punishable under sub-section (1) unless the complaint is filed with the previous sanction of the State of the Government or an officer authorised by it in this behalf.

Section 42. Employment of juveniles for begging

(1) Whoever employs or uses any juvenile for the purposes of begging or causes any juvenile to beg shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.

(2) Whoever, having the actual charge of, or control over, a juvenile abets the commission of the offence punishable under sub-section (1) shall be punishable with imprisonment for a term which may extend to one year and shall also be liable to fine.

(3) The offence punishable under this section shall be cognizable.

Section 43. Penalty for giving intoxicating liquor or narcotic drug or psychotropic substance to a juvenile

Whoever gives, or causes to be given, to any juvenile any intoxicating liquor in a public place or any narcotic drug or psychotropic substance except upon the order of a duly qualified medical practitioner or in case of sickness shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.

Section 44. Exploitation of juvenile employees

Whoever ostensibly procures a juvenile for the purpose of any employment and withholds the earnings of the juvenile or uses such earnings for his own purposes shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.

Section 45. Alternative punishments

Where an act or omission constitutes an offence punishable under this Act and also under any other Central or State Act, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under such Act as provides for punishment which is greater in degree.

Chapter VII – Miscellaneous

Section 46. Power of State Government to discharge and transfer juveniles

(1) The State Government may, notwithstanding anything contained in this Act, at any time, order a neglected or delinquent juvenile to be discharged from the juvenile home or special home, either absolutely or on such conditions as it may think fit to impose.

(2) The State Government may, notwithstanding anything contained in this Act, order –

(a) A neglected juvenile to be transferred from one juvenile home to another,

(b) A delinquent juvenile to be transferred from one special home to another or from a special home to a borstal school where such school exists or from a special home to a juvenile home ;

(c ) A neglected juvenile or a delinquent juvenile to be transferred from a juvenile home or a special home to a fit person or a fit institution ;

(d) A juvenile who has been released on licence which has been revoked or forfeited, to be sent to the special home or juvenile home from which he was released or to any other juvenile home or special home or borstal school :

Provided that the total period of the stay of the juvenile home or a special home or a fit institution or under a fit person shall not be increased by such transfer.

(3) The State Government may, notwithstanding anything contained in this Act, at any time, discharge a juvenile from the care of any person under whom he was placed under this Act either absolutely or on such conditions as may think fit to impose.

Section 47. Transfers between juvenile homes, etc., under the Act, and juvenile homes, etc., of like nature in different part of India

(1) The Government of a State may direct any neglected juvenile or delinquent juvenile to be transferred from any juvenile home or special home within the State to any other juvenile home, special home, or institution of a like nature in any other State with the consent of the Government of that State.

(2) The Government of a State may, by general or special order, provide for the reception in a juvenile home or special home within the State of a neglected juvenile or delinquent juvenile detained in a juvenile home or special home or institution of a like nature in any other State where the Government of that State makes an order for such transfer, and upon such transfer the provisions of this Act shall apply to such juvenile as if he had been originally ordered to be sent to such juvenile home or special home under this Act.

Section 48. Transfer of juveniles of unsound mind or suffering from leprosy or addicted to drugs

(1) Where it appears to the State Government that any juvenile kept in a special home or juvenile home or institution in pursuance of this Act is suffering from leprosy or is of unsound mind, or is addicted to any narcotic drug or psychotropic substance, the State Government may order his removal to a leper asylum or mental hospital or treatment center for drug addicts or other place of safe custody for being kept there for such period not exceeding the period for which he is required to be kept in custody under the orders of the competent authority or for such further period as may be certified by the medical officer to be necessary for the proper treatment of the juvenile.

(2) Where it appears to the State Government that the juvenile is cured of leprosy or of unsoundness of mind or drug addiction it may, if the juvenile is still liable to be kept in custody, order the person having charge of the juvenile to send him to the special home or juvenile home or institution from which he was removed or, if the juvenile is no longer liable to be kept in custody order him to be discharged.

Section 49. Placing out on licence

(1) When a juvenile is kept in a juvenile home or special home, the State Government may, if it so thinks fit, release the juvenile from the juvenile home or special home and grant him a written licence for such period and on such conditions as may be specified in the licence permitting him to live with, or under the supervision of, any responsible person named in the licence willing to receive and take charge of him with a view to educate him and train him for some useful trade or calling.

(2) Any licence so granted under sub-section (1) shall be in force for the period specified in the licence or until revoked or forfeited by the breach of any of the conditions on which it was granted.

(3) The State Government may, at any time, by order in writing, revoke any such licence and order the juvenile to return to the juvenile home or special home from which he was released or to any other juvenile home or special home, and shall do so at the desire of the person with whom or under whose supervision the juvenile has been permitted to live in accordance with a licence granted under sub-section (1).

(4) When a licence has been revoked or forfeited and the juvenile refuses or fails to return to the special home or juvenile home to which he was directed so to return, the State Government, if necessary, cause him to be taken charge of and to be taken back to the special home or juvenile home.

(5) The time during which a juvenile is absent from a special home or juvenile home in pursuance of a licence granted under this section shall be deemed to be part of the time for which he is liable to be kept in custody in the special home or juvenile home :

Provided that when a juvenile has failed to return to the special home or juvenile home on the licence being revoked or forfeited, the time which elapses after his failure so to return shall be excluded in computing the time during which he is liable to be kept in custody.

Section 50. Provision in respect of escaped juveniles

Notwithstanding anything to the contrary contained in any other law for the time being in force, any police officer may take charge without warrant of a juvenile who has escaped from a special home or a juvenile home or from the care of a person under whom he was placed under this Act and shall send the juvenile back to the special home or that person, as the case may be; and no proceeding shall be instituted in respect of the juvenile by reason of such escape but the special home, juvenile home or the person may, after giving the information to the competent authority which passed the order in respect of the juvenile, take such steps against the juvenile as may be deemed necessary.

Section 51. Contribution by parents

(1) The competent authority which makes an order for sending a neglected juvenile or a delinquent juvenile to a juvenile home or a special home or placing the juvenile under the care of a fit person or fit institution may make an order requiring the parent or other person liable to maintain the juvenile to contribute to his maintenance, if able to do so, in the prescribed manner.

(2) The competent authority before making any order under sub-section (1) shall inquiry into the circumstances of the parent or other person liable to maintain the juvenile and shall record evidence, if any, in the presence of the parent or such other person, as the case may be.

(3) The person liable to maintain a juvenile shall, for the purposes of sub-section (1), include in the case of illegitimacy, his putative father :

Provided that where the juvenile is illegitimate and an order for his maintenance has been made under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974), the competent authority shall not ordinarily make an order for contribution against the putative father, but may order the whole or any part of the sums accruing due under the said order for maintenance to be paid to such person as may be named by the competent authority and such sum shall be paid by him towards the maintenance of the juvenile.

(4) Any order made under this section may be enforced in the same manner as an order under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974).

Section 52. Fund

(1) The State government may create a Fund under such name as it thinks fit for the welfare and rehabilitation of the juveniles dealt with under this Act.

(2) There shall be credited to the Fund such voluntary donations, contributions or subscriptions as may be made by any individual or organisation.

(3) The fund created under sub-section (1) shall be administered by such officers or authority in such manner and for such purposes as may be prescribed.

Section 53. Advisory Board

(1) The State government may constitute an Advisory Board to advise it on matters relating to the establishment and maintenance of homes, mobilisation of resources, provision of facilities for education, training and rehabilitation of neglected and delinquent juveniles and co-ordination among the various official and non-official agencies concerned.

(2) The Advisory Board shall consist of such number of officers and other persons as the State Government thinks fit and may also include experts and the representatives of voluntary organisations engaged in the relevant areas.

Section 54. Visitors

(1) The State Government may nominate not more than three non-officials to be Visitors for each of the homes established under this Act.

(2) A Visitor nominated for a home under sub-section (1) shall periodically visit such home and make a report to the State Government.

Section 55. Control of custodian over juvenile

Any person in whose custody a juvenile is placed in pursuance of this Act shall, while the order is in force, have the like con4trol over the juvenile as he would have if he were his parent, and shall be responsible for his maintenance, and the juvenile shall continue in his custody for the period stated by the competent authority, notwithstanding that he is claimed by his parent or any other person:

Provided that no juvenile while in such custody shall be carried except with the permission of the competent authority.

Section 56. Delinquent juvenile undergoing sentence of commencement of the Act

In any area in which this Act is brought into force, the State Government may direct that a delinquent juvenile who is undergoing any sentence of imprisonment at the commencement of this Act shall, in lieu of undergoing such sentence, be sent to a special home or be kept in safe custody in such place and manner as the State Government thinks fit for the reminder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by a Juvenile Court to be sent to such special home or, as the case may be, ordered to be detained under sub-section (2) of section 22.

Section 57. Appointment of officers

(1) The State Government may appoint as many probation officers, officers for the inspection of special homes, juvenile homes, observation homes or after care organisations and such other officers as it may deem necessary for carrying out the purposes of this Act.

(2) It shall be the duty of the probation officer –

(a) To inquire, in accordance with the direction of a competent authority, into the antecedents and family history of any juvenile accused of an offence, with a view to assist the authority in making the inquiry ;

(b) To visit neglected and delinquent juveniles at such intervals as the probation officer may think fit ;

(c ) To report to the competent authority as to the behavior of any neglected or delinquent juvenile ;

(d) To advice and assist neglected and delinquent juveniles and, if necessary, endeavor to find them suitable employment ;

(e) Where a neglected or delinquent juvenile is placed under the care of any person or institution on certain conditions to see whether such conditions are being complied with ; and

(f) To perform such other duties as may be prescribed.

(3) Any officer empowered in this behalf by the State Government may enter any special home, juvenile home, observation home or after-care organisation and make a complete inspection thereof in all its departments and of all papers, registers and accounts relating thereto and shall submit the report of such inspection to the State Government.

Section 58. Officers appointed under the Act to be public servants

Probation officers and other officers appointed in pursuance of this Act shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).

Section 59. Procedure in respect of bonds

The provisions of Chapter XXXIII of the Code of Criminal Procedure, 1973 (2 of 1974), shall, as far as may be, apply to bonds taken under this Act.

Section 60. Delegation of powers

The State Government may, by general or special order, direct that any power exercisable by it under this Act shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercisable also by an officer subordinate to that Government.

Section 61. Protection of action taken in good faith

No suit or other legal proceeding shall lie against the State Government or any probation officer or other officer appointed under this Act in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or orders made thereunder.

Section 62. Protection of action taken in good faith

The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-

(a) The places at which, the days on which, the time at which, and the manner in which, a competent authority may hold its sittings :

(b) The procedure to be followed by a competent authority in holding inquiries under this Act, and the mode of dealing with juveniles suffering from dangerous diseases or mental complaints :

(c) The circumstances in which, and the conditions subject to which, an institution may be certified as a special home or a juvenile’s home or recognised as an observation home, and the certification or recognition withdrawn ;

(d) The internal management of special homes juvenile homes and observation homes and the standards and the nature of services to be maintained by them ;

(e) The functions and responsibilities of special homes juvenile homes and observation homes ;

(f) The inspection of special homes, juvenile homes, observation homes and after-care organisations ;

(g) The establishment, management and functions of after-care organisations ; the circumstances in which, and the conditions subject to which an institution may be recognised as an after-care organisation and such other matters as are referred to in section 12 ;

(h) The qualifications and duties of probation officers ;

(i) The recruitment and training of persons appointed to carry out the purposes of this Act and the terms and conditions of their services ;

(j) The conditions subject to which a girl who is a neglected or delinquent juvenile may be escorted from one place to another, and the manner in which a juvenile may be sent outside the jurisdiction of a competent authority ;

(k) The manner in which contribution for the maintenance of a juvenile may be ordered to be paid by a parent or guardian ;

(l) The officers or authorities by whom, the manner in which and the purpose for which the Fund created under section 52 shall be administered ;

(m) The conditions under which a juvenile may be placed out on licence and the form and conditions of such licence ;

(o) Any other matter which has to be, or may be, prescribed.

(3) Every rule made by a State Government under this Act shall be laid, as soon as may be after it is made, before the legislature of that State.

Section 63. Repeal and savings

If, immediately before the date on which this Act comes into force in any State, there is in force in that State, any law corresponding to this Act, that law shall stand repealed on the said date:

Provided that the repeal shall not affect –

(a) The previous operation of any law so repealed or anything duly done or suffered thereunder ; or

(b) Any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed ; or

(c ) Any penalty, forfeiture or punishment incurred in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed.

Copyright Act

November 30, 2014

Section 1. Short title, extent and commencement

(1) This act may be called the Copyright Act, 1957

(2) It extends to the whole of India

(3) It shall come into force on such date ¹ as the Central Government may, by notification in the Official Gazette, appoint.

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1. Came into force on 21-1-1958, vide S.R.O. 269, dated 21st January, 1958, published in the Gazette of India, Extra., Pt. II, Sec. 3, p. 167.

Section 2. Interpretation

In this Act, unless the context otherwise requires,—

(a) “adaptation” means,—

(i) in relation to a dramatic work, the conversion of the work into a non-dramatic work;

(ii) in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise;

(iii) in relation to a literary or dramatic work, any abridgement of the work or any version of the work in which the story or action in conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical; ¹[***]

(iv) in relation to a musical work, any arrangement or transcription of the work;²[and]

²[(v) in relation to any work, any use of such work involving its rearrangement or alteration;]

(b) ³[‘‘work of architecture’’] means any building or structure having as artistic character or design, or any model for such building or structure;

(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;

(ii) a ⁴[work of architecture]; and

(iii) any other work of artistic craftsmanship;

(d) “author’’ means,—

(i) in relation to a literary or dramatic work, the author of the work;

(ii) in relation to a musical work, the composer;

(iii) in relation to an artistic work other than a photograph, the artist;

(iv) in relation to a photograph, the person taking the photograph;

⁵[(v) in relation to a cinematograph film or sound recording, the producer; and

(vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;]

⁶[(dd) “broadcast” means communication to the public—

(i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or

(ii) by wire,and includes a re-broadcast;]

(e) “ calendar year” means the year commencing on the 1st day of January;

⁷[(f) “cinematograph film” means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films;]

⁸[(ff) “communication to the public” means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.

—For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public;

(ffa) “composer”, in relation to a musical work, means the person who composes the music regardless of whether he records it in any form of graphical notation;

(ffb) “computer” includes any electronic or similar device having information processing capabilities;

(ffc) “computer programme” means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result;

(ffd) “copyright society” means a society registered under sub-section (3) of section 33;]

(g) “delivery”, in relation to a lecture, includes delivery by means of any mechanical instrument or by 9[broadcast];

(h) “dramatic work” includes any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film;

¹⁰[(hh) “duplicating equipment” means any mechanical contrivance or device used or intended to be used for making copies of any work;]

(i) “engravings” include etchings, lithographs, wood-cuts, prints and other similar works, not being photographs;

(j) “exclusive licence” means a licence which confers on the licensee or on the licensee and persons authorised by him, to the exclusion of all other persons (including the owner of the copyright) any right comprised in the copyright in a work, and “exclusive licensee” shall be construed accordingly;

(k) “Government work” means a work which is made or published by or under the direction or control of—

(i) the Government or any department of the Government;

(ii) any Legislature in India;

(iii) any Court, Tribunal or other judicial authority in India;

¹¹[(l) “Indian work” means a literary, dramatic or musical work,—

(i) the author of which is a citizen of India; or

(ii) which is first published in India; or

(iii) the author of which, in the case of an unpublished work is, at the time of the making of the work, a citizen of India;]

¹²[(m) “infringing copy” means,—

(i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film;

(ii) in relation to a cinematographic film, a copy of the film made on any medium by any means;

(iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means;

(iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer’s right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance,

if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act;]

(n) “lecture” includes address, speech and sermon;

¹³[(o) “literary work” includes computer programmes, tables and compilations including computer 14[databases];]

¹³[(p) “musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music;]

¹³[(q) “performance”, in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers;]

¹³[(qq) “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance;]

¹⁵[***]

(s) “photograph” includes photo-lithograph and any work produced by any process analogous to photography but does not include any part of a cinematograph film;

(t) “plate” includes any stereotype or other plate, stone, block, mould, matrix, transfer, negative ¹⁶[,duplicating equipment] or other device used or intended to be used for printing or reproducing copies of any work, and any matrix or other appliance by which ¹⁷[sound recording] for the acoustic presentation of the work are or are intended to be made;

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

¹⁸[(uu) “producer”, in relation to a cinematograph film or sound recording, means a person who takes the initiative and responsibility for making the work;]

¹⁹[***]

²⁰[***]

²¹[(x) “reprography” means the making of copies of a work, by photocopying or similar means;

(xx) “sound recording” means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is the method by which the sounds are produced;]

(y) “work” means any of the following works, namely:—

(i) a literary, dramatic, musical or artistic work;

(ii) a cinematograph film;

(iii) a ²²[sound recording];

(z) “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors;

(za) “work of sculpture” includes casts and models.

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1. The word “and” omitted by Act 38 of 1994, sec. 2 (w.e.f. 10-5-1995).

2. Ins. by Act 38 of 1994, sec. 2 (w.e.f. 10-5-1995).

3. Subs. by Act 38 of 1994, sec. 2, for “architectural work of art” (w.e.f. 10-5-1995).

4. Subs. by Act 38 of 1994, sec. 2, for “architectural work of art” (w.e.f. 10-5-1995).

5. Subs. by Act 38 of 1994, sec.2, for sub-clauses (v) and (vi) (w.e.f. 10-5-1995).

6. Ins. by Act 23 of 1983, sec. 3 (w.e.f. 9-8-1984).

7. Subs. by Act 38 of 1994, sec. 2, for clause (f) (w.e.f. 10-5-1995).

8. Subs. by Act 38 of 1994, sec. 2, for clause (ff) (w.e.f. 10-5-1995). Earlier clause (ff) was inserted by Act 23 of 1983, sec. 3 (w.e.f. 9-8-1984).

9. Subs. by Act 23 of 1983, sec. 2, for “radio-diffusion” (w.e.f. 9-8-1984).

10. Ins. by Act 65 of 1984 sec. 2 (w.e.f. 8-10-1984).

11. Subs. by Act 23 of 1983, sec. 3, for clause (l) (w.e.f. 9-8-1984).

12. Subs. by Act 38 of 1994, sec. 2, for clause (m) (w.e.f. 10-5-1995).

13. Subs. by Act 38 of 1994, sec. 2 (w.e.f. 10-5-1995).

14. Subs. by Act 49 of 1999, sec. 2, for “data basis” (w.e.f. 15-1-2000).

15. Clause (r) omitted by Act 38 of 1994, sec. 2 (w.e.f. 10-5-1995).

16. Ins. by Act 65 of 1984, sec. 2 (w.e.f. 8-10-1984).

17. Subs. by Act 38 of 1994, sec. 2 (xii), for “record” (w.e.f. 10-5-1995).

18. Ins. by Act 38 of 1994, sec. 2 (w.e.f. 10-5-1995).

19. Clause (v) omitted by Act 23 of 1983, sec.3 (w.e.f. 9-8-1984).

20. Clause (w) omitted by Act 38 of 1994, sec. 2 (w.e.f. 10-5-1995).

21. Subs. by Act 38 of 1994, sec. 2, for clause (x) (w.e.f. 10-5-1995).

22. Subs. by Act 38 of 1994, sec. 2, for “record” (w.e.f. 10-5-1995).

Section 3. Meaning of publication

¹ Meaning of publication –For the purposes of this Act, “publication” means making a work available to the public by issue of copies or by communicating the work to the public.

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1. Subs. by Act 38 of 1994, sec. 3, for section 3 (w.e.f. 10-5-1995).

Section 4. When work not deemed to be published or performed in public

Except in relation to infringement of copyright, a work shall not be deemed to be published or performed in public, if published, or performed in public, without the licence of the owner of the copyright.

Section 5. When work deemed to be first published in India

For the purposes of this Act, a work published in India shall be deemed to be first published in India, notwithstanding that it has been published simultaneously in some other country, unless such other country provides a shorter term of copyright for such work, and a work shall be deemed to be published simultaneously in India and in another country does not exceed thirty days or such other period as the Central Government may, in relation to any specified country, determine.

Section 6. Certain disputes to be decide by Copyright Board

¹Certain disputes to be decide by Copyright Board -If any question arises,-

(a) Whether a work has been published or as to the date on which a work was published for the purposes of Chapter V, or

(b) Whether the term of copyright for any work is shorter in any other country than that provided in respect of that work under this Act, it shall be referred to the Copyright Board constituted under Section 11 whose decision thereon shall be final:

Provided that if in the opinion of the Copyright Board, the issue of copies or communication to the public referred to in Section 3 was of an insignificant nature, it shall not be deemed to be publication for the purposes of that section.

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1. Subs. by Act 38 of 1994, sec. 4, for section 6 (w.e.f. 10-5-1995).

Section 7. Nationally of author were the making of unpublished work is extended over considerable period

Where, in the case of an unpublished work the making of the work is extended over a considerable period, the author of the work shall, for the purposes of this Act, be deemed to be a citizen of, or domiciled in, that country of which he was a citizen or wherein he was domiciled during any substantial part of that period.

Section 8. Domicile of corporations

For the purposes of this Act, a body corporate shall be deemed to be domiciled in India if it is incorporated under any law in force in India.

CHAPTER II – Copyright Office And Copyright Board

Section 9. Copyright Office

(1) There shall be established for the purposes of this Act on office to be called the Copyright Office.

(2) The Copyright Office shall be under the immediate control of the Registrar of Copyrights who shall act under the superintendence and direction of the Central Government.

(3) There shall be seal for the Copyright Office.

Section 10. Registrar and Deputy Registrars of Copyrights

(1) The Central Government shall appoint a Registrar of Copyrights and may appoint one or more Deputy Registrars of Copyrights.

(2) A Deputy Registrar of Copyrights shall discharge under the superintendence and direction of the Registrar of Copyrights such functions of the Registrar under this Act as the Registrar of Copyrights such functions of the Registrar under this Act as the Registrar may, from time to time, assign to him : and any reference in this Act to the Registrar of Copyrights shall include a reference to a Deputy Registrar of Copyrights when so discharging any such functions.

Section 11. Copyright Board

(1) As soon as may be after the commencement of this Act, the Central Government shall constitute a Board to be called the Copyright Board which shall consist of a Chairman and not less than two or more than ¹[fourteen] other members.

(2) The Chairman and other members of the Copyright Board shall hold office for such period and on such terms and conditions as may be prescribed.

(3) The Chairman of the Copyright Board shall be a person who is, or has been, a Judge of ²[***] a High Court or is qualified for appointment as a Judge of High Court.

(4) The Registrar of Copyrights shall be the Secretary of the Copyright Board and shall perform such functions as may be prescribed.

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1. Subs. by Act 38 of 1994, sec. 5, for “eight” (w.e.f. 10-5-1995).

2. The words “the Supreme Court or” omitted by Act 38 of 1994, sec. 5 (w.e.f. 10-5-1995).

Section 12. Powers and procedure of Copyright Board

(1) The Copyright Board shall, subject to any rules that may be under this Act, have power to regulate its own procedure, including the fixing of places and times of its sittings:

Provided that the Copyright Board shall ordinarily hear any proceeding instituted before it under this Act within the zone in which, at the time of the institution of the proceeding, the person instituting the proceeding actually and voluntarily resides or carries on business or personally work for gain.

Explanation.-—In this sub-section “zone” means a zone specified in section 15 of the States Reorganisation Act, 1956 (37 of 1956).

(2) The Copyright Board may exercise and discharge its powers and functions through Benches constituted by the Chairman of the Copyright Board from amongst its members, each Bench consisting of not less than three members:

¹[Provided that, if the Chairman is of opinion that any matter of importance is required to be heard by a larger Bench, he may refer the matter to a special Bench consisting of five members.]

(3) If there is a difference of opinion among the members of the Copyright Board or any Bench thereof in respect of any matter coming before it for decision under this Act, the opinion of the majority shall prevail:

²[Provided that where there is no such majority, the opinion of the Chairman shall prevail.]

(4) ³[The Chairman] may authorise any of its members to exercise any of the powers conferred on it by section 74 and any order made or act done in exercise of those powers by the member so authorised shall be deemed to be the order or act, as the case may be, of the Board.

(5) No member of the Copyright Board shall take part in any proceedings before the Board in respect of any matter in which he has a personal interest.

(6) No act done or proceeding taken by the Copyright Board under this Act shall be questioned on the ground merely of the existence of any vacancy in, or defect in the constitution of, the Board.

(7) The Copyright Board shall be deemed to be a Civil Court for the purposes of ⁴[sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974)] and all proceedings before the Board shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, 1860 (45 of 1860).

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1. Ins. by Act 38 of 1994, sec. 6 (w.e.f. 10-5-1995).

2. Subs. by Act 38 of 1994, sec. 6, for proviso (w.e.f. 10-5-1995).

3. Subs. by Act 38 of 1994, sec. 6, for “The Copyright Board” (w.e.f. 10-5-1995).

4. Subs. by Act 23 of 1983, sec. 6, for “sections 480 and 482 of the Code of Criminal Procedure, 1898 (5 of 1898)” (w.e.f. 9-8-1984).

CHAPTER III – Copyright

Section 13. Works in which copyright subsists

(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,—

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and

(2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of section 40 or section 41 apply, unless,—

(i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India;

(ii) in the case of an unpublished work other than ²[work of architecture], the author is at the date of the making of the work a citizen of India or domiciled in India; and

(iii) in the case of ²[work of architecture], the work is located in India.

—In the case of a work of joint authorship, the conditions conferring copyright specified in this sub-section shall be satisfied by all the authors of the work.

(3) Copyright shall not subsist—

(a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;

(b) in any ¹[sound recording] made in respect of a literary, dramatic or musical work, if in making the ¹[sound recording], copyright in such work has been infringed.

(4) The copyright in a cinematograph film or a ¹[sound recording] shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or, as the case may be, the ¹[sound recording] is made.

(5) In the case of ²[work of architecture], copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.

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1. Subs. by Act 38 of 1994, sec. 2, for “record” (w.e.f. 10-5-1995).

2. Subs. by Act 38 of 1994, sec. 2 , for “architectural work of art” (w.e.f. 10-5-1995).

Section 14. Meaning of copyright

¹[14. Meaning of copyright.—For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:—

(a) in the case of a literary, dramatic or musical work, not being a computer programme,—

(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;

(ii) to issue copies of the work to the public not being copies already in circulation;

(iii) to perform the work in public, or communicate it to the public;

(iv) to make any cinematograph film or sound recording in respect of the work;

(v) to make any translation of the work;

(vi) to make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);

(b) in the case of a computer programme,—

(i) to do any of the acts specified in clause (a);

²[(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme:

Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.]

(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;

(ii) to communicate the work to the public;

(iii) to issue copies of the work to the public not being copies already in circulation;

(iv) to include the work in any cinematograph film;

(v) to make any adaptation of the work;

(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);

(d) in the case of a cinematograph film,—

(i) to make a copy of the film including a photograph of any image forming part thereof;

(ii) to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the film to the public;

(e) in the case of a sound recording,—

(i) to make any other sound recording embodying it;

(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording, regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the sound recording to the public.

Explanation.— For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.]

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1. Subs. by Act 38 of 1994, sec. 7, for section 14 (w.e.f. 10-5-1995).

2. Subs. by Act 49 of 1999, sec. 3, for sub-clause (ii) (w.e.f. 15-1-2000).

Section 15. Special provision regarding copyright in designs registered or capable of being registered under the Designs Act, 1911.

15. Special provision regarding copyright in designs registered or capable of being registered under the ¹ [***] Designs Act, 1911. —(1) Copyright shall not subsist under this Act in any design which is registered under the ¹ [***] Designs Act, 1911 (2 of 1911)2.

(2) Copyright in any design, which is capable of being registered under the ¹ [***] Designs Act, 1911 (2 of 1911)² , but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright, or, with his licence, by any other person.

———–

1.The words “Indian Patents and” omitted by Act 23 of 1983, sec. 7 (w.e.f. 9-8-1984).

2.See now the Designs Act, 2000 ( 16 of 2000).

Section 16. No copyright except as provided in this Act

No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence.

CHAPTER IV – Ownership of Copyright and the Rights of the Owner

The Copyright Act, 1957 ¹

Section 17. First owner of copyright

Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:

Provided that—

(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;

(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

(c) in the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

²[(cc) in the case of any address or speech delivered in public, the person who has delivered such address or speech or if such person has delivered such address or speech on behalf of any other person, such other person shall be the first owner of the copyright therein notwithstanding that the person who delivers such address or speech, or, as the case may be, the person on whose behalf such address or speech is delivered, is employed by any other person who arranges such address or speech or on whose behalf or premises such address or speech is delivered;]

(d) in the case of a Government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

²[(dd) in the case of a work made or first published by or under the direction or control of any public undertaking, such public undertaking shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

Explanation. —For the purposes of this clause and section 28A, “public undertaking” means—

(i) an undertaking owned or controlled by Government; or

(ii) a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956); or

(iii) a body corporate established by or under any Central, Provincial or State Act;]

(e) in the case of a work to which the provisions of section 41 apply, the international organisation concerned shall be the first owner of the copyright therein.

———

1. Subs. by Act 15 of 2008, sec. 2, for sec. 8 (w.e.f. 15-4-2008). Section 8, before substitution, stood as under:

“8. Payment of medical bonus.—Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of two hundred and fifty rupees, if no pre-natal confinement and post-natal care is provided for by the employer free of charge.”.

2. Ins. by Act 23 of 1983, sec. 8 (w.e.f. 9-8-1984).

Section 18. Assignment of copyright

(1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof.

Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence.

(2) Whereas the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights to assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly.

(3) In this section, the expression, “assignee” as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.

Section 19. Mode of assignment

¹ (1)] No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or his duly authorised agent.

² [³ (2)The assignment of copyright in nay work shall identify such work, and shall specify the rights assigned and the duration and territorial extent of such assignment.

(3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.

(4) Where the assignee does not exercise the rights assigned to him under any of the other sub sections of this section within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment.

(5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.

(6) If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.

(7) Nothing in sub section (2) or sub section (3) or sub section (4) or sub section (5) or sub section (6) shall be applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.]

——————————

1. Section 19 re-numbered as sub-section (1) thereof by Act 23 of 1983, sec. 9 (w.e.f. 9-8-1984).

2. Sub-section (2) ins. by Act 23 of 1983, sec. 9 (w.e.f. 9-8-1984).

3. Subs. by Act 38 of 1994, sec. 8, for sub-section (2) (w.e.f. 10-9-1995).

Section 19-A. Dispute with respect to assignment of copyright

¹[19A. Disputes with respect to assignment of copyright.—(1) If an assignee fails to make sufficient exercise of the rights assigned to him, and such failure is not attributable to any act or omission of the assignor, then, the Copyright Board may, on receipt of a complaint from the assignor and after holding such inquiry as it may deem necessary, revoke such assignment.

(2) If any dispute arises with respect to the assignment of any copyright, the Copyright Board may, on receipt of a complaint from the aggrieved party and after holding such inquiry as it considers necessary, pass such order as it may deem fit including an order for the recovery of any royalty payable:

Provided that Copyright Board shall not pass any order under this sub-section to revoke the assignment unless it is satisfied that the terms of assignment are harsh to the assignor in case the assignor is also the author:

Provided further that no order of revocation of assignment under this sub-section, shall be made within a period of five years from the date of such assignment.]

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1. Subs. by Act 38 of 1994, sec. 9, for section 19A (w.e.f. 10-5-1995). Earlier section 19A was inserted by Act 23 of 1983, sec. 10 (w.e.f. 9-8-1984).

Section 20. Transmission of copyright in manuscript by testamentary disposition

Where under a bequest a person is entitled to the manuscript of a literary, dramatic or musical work, or to an artistic work, and the work was not published before the death of the testator, the bequest shall, unless the contrary intention is indicated in the testator’s will or any codicil thereto, be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his death.

Explanation- In this section, the expression “manuscript” means the original document embodying the work, whether written by hand or not.

Section 21. Right of author to relinquish copyright

(1) The author of a work may relinquish all or any of the rights comprised in the copyright in the work by giving notice in the prescribed form to the Registrar of Copyrights and thereupon such rights shall, subject to the provision of sub section (3), cease to exist from the date of the notice.

(2) On receipt of a notice under sub section (1), the Registrar of Copyrights shall cause it to be published in the Official Gazette and in such other manner, as he may deem fit.

(3) The relinquishment of all or any of the rights comprised in the copyright in a work shall not affect any rights subsisting in favour of any person on the date of the notice referred to in sub section. (1).

CHAPTER V – Term of Copyright

Section 22. Term of copyright in published literary, dramatic, musical and artistic works

Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until ¹[sixty years] from the beginning of the calendar year next following the year in which the author dies.

—In this section the reference to the author shall, in the case of a work of joint authorship, be construed as a reference to the author who dies last.

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1. Subs. by Act 13 of 1992, sec. 2, for “fifty years” (w.r.e.f. 28-12-1991).

Section 23. Term of copyright in anonymous and pseudonymous works

(1) In the case of a literary, dramatic, musical or artistic work (other than a photograph), which is published anonymously or pseudonymously, copyright shall subsist until ¹[sixty years] from the beginning of the calendar year next following the year in which the work is first published:

Provided that where the identity of the author is disclosed before the expiry of the said period, copyright shall subsist until ¹[sixty years] from the beginning of the calendar year following the year in which the author dies.

(2) In sub-section (1), references to the author shall, in the case of an anonymous work of joint authorship, be construed,—

(a) where the identity of one of the authors is disclosed, as references to that author;

(b) where the identity of more authors than one is disclosed, as references to the author who dies last from amongst such authors.

(3) In sub-section (1), references to the author shall, in the case of a pseudonymous work of joint authorship, be construed,—

(a) where the names of one or more (but not all) of the authors are pseudonymous and his or their identity is not disclosed, as references to the author whose name is not a pseudonym, or, if the names of two or more of the authors are not pseudonyms, as references to such of those authors who dies last;

(b) where the names of one or more (but not all) of the authors are pseudonyms and the identity of one or more of them is disclosed, as references to the author who dies last from amongst the authors whose names are not pseudonyms and the authors whose names are pseudonyms and are disclosed; and

(c) where the names of all the authors are pseudonyms and the identity of one of them is disclosed, as references to the author whose identity is disclosed or if the identity of two or more of such authors is disclosed, as references to such of those authors who dies last.

—For the purposes of this section, the identity of an author shall be deemed to have been disclosed, if either the identity of the author is disclosed publicly by both the author and the publisher or is otherwise established to the satisfaction of the Copyright Board by that author.

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1. Subs. by Act 13 of 1992, sec. 2, for “fifty years” (w.r.e.f. 28-12-1991).

Section 24. Term of copyright in posthumous works

(1) In the case of a literary, dramatic or musical work or an engraving, in which copyright subsists at the date of the death of the author, or in the case of any such work of joint authorship, at or immediately before the date of the death of the author who dies last, but which, or any adaptation of which, has not been published before that date, copyright shall subsist until ¹[sixty years] from the beginning of the calendar year next following the year in which the work is first published or, where an adaptation of the work is published in any earlier year, from the beginning of the calendar year next following that year.

(2) For the purposes of this section a literary, dramatic or musical work or an adaptation of any such work shall be deemed to have been published, if it has been performed in public or if any ²[sound recording] made in respect of the work have been sold to the public or have been offered for sale to the public.

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1. Subs. by Act 13 of 1992, sec. 2, for “fifty years” (w.r. e.f. 28-12-1991).

2. Subs. by Act 38 of 1994, sec. 2, for “record” (w.e.f. 10-5-1995).

Section 25. Term of copyright in photographs

In the case of a photograph, copyright shall subsist until ¹[sixty years] from the beginning of the calendar year next following the year in which the photograph is published.

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1. Subs. by Act 13 of 1992, sec. 2, for “fifty years” (w.r. e.f. 28-12-1991).

Section 26. Term of copyright in cinematograph films

In the case of a cinematograph film, copyright shall subsist until ¹[sixty years] from the beginning of the calendar year next following the year in which the film is published.

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1. Subs. by Act 13 of 1992, sec. 2, for “fifty years” (w.r. e.f. 28-12-1991).

Section 27. Term of copyright in sound recordings

27. Term of copyright in ²[sound recording].—In the case a ²[sound recording] copyright shall subsist until ¹[sixty years] from the beginning of the calendar year next following the year in which the ²[sound recording] is published.

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1. Subs. by Act 13 of 1992, sec. 2, for “fifty years” (w.r. e.f. 28-12-1991).

2.Subs. by Act 38 of 1994, sec. 2, for “record” (w.e.f. 10-5-1995).

Section 28. Term of copyright in Government works

In the case of Government work, where Government is the first owner of the copyright therein, copyright shall subsist until ¹[sixty years] from the beginning of the calendar year next following the year in which the record is first published.

——————————

1.Subs. by Act 13 of 1992, sec. 2, for “fifty years” (w.r. e.f. 28-12-1991).

Section 28-A. Term of copyright in works of public undertakings

¹[28A. Term of copyright in works of public undertakings.—In the case of a work, where a public undertaking is the first owner of the copyright therein, copyright shall subsist until ²[sixty years] from the beginning of the calendar years next following the year in which the work is first published.]

——————————

1. Ins. by Act 23 of 1983, sec. 11 (w.e.f. 9-8-1984).

2. Subs. by Act 13 of 1992, sec. 2, for “fifty years” (w.r. e.f. 28-12-1991).

Section 29. Term of copyright in works of international organisation

In the case of a work of any international organisation to which the provisions of section 41 apply, copyright shall subsist until ¹[sixty years] from the beginning of the calendar year next following the year in which the work is first published.

————————

1. Subs. by Act 13 of 1992, sec. 2, for “fifty years” (w.r. e.f. 28-12-1991).

CHAPTER VI – Licences

Section 30. Licences by owners of copyright

The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing signed by him or by his duly authorised agent.

Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence.

Explanation – When a person to whom a licence relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence , be entitled to benefit of the licence.

Section 30-A. Application of Sections 19 and 19-A.

The provision of Sections 19 and 19-A shall, with any necessary adaptations and modifications, apply in relation to a licence under Section 30 as they apply in relation to assignment of copyright in a work.

————————

1. Ins. by Act 38 of 1994, sec. 10 (w.e.f. 10-5-1995).

Section 31. Compulsory licence in works with held from public

(1) If at any time during the term of copyright in any Indian work which has been published or performed in public, a complaint is made to the Copyright Board that the owner of copyright in the work—

(a) has refused to re-publish or allow the re-publication of the work or has refused to allow the performance in public of the work, and by reason of such refusal the work is withheld from the public; or

(b) has refused to allow communication to the public by ¹[broadcast], of such work or in the case of a ²[sound recording] the work recorded in such ²[sound recording], on terms which the complainant considers reasonable,

the Copyright Board, after giving to the owner of the copyright in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, may, if it is satisfied that the grounds for such refusal are not reasonable, direct the Registrar of Copyrights to grant to the complainant a licence to re-publish the work, perform the work in public or communicate the work to the public by ¹[broadcast], as the case may be, subject to payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the Copyright Board may determine; and thereupon the Registrar of Copyrights shall grant the licence to the complainant in accordance with the directions of Copyright Board, on payment of such fee as may be prescribed.

Explanation.—In this sub-section, the expression “Indian work” includes—

(i) an artistic work, the author of which is a citizen of India; and

(ii) a cinematograph film or a 2[sound recording] made or manufactured in India.

(2) Where two or more persons have made a complaint under sub-section (1), the licence shall be granted to the complainant who in the opinion of the Copyright Board would best serve the interests of the general public.

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1. Subs. by Act 23 of 1983, sec. 2, for “radio-diffusion” (w.e.f. 9-8-1984).

2. Subs. by Act 38 of 1994, sec. 2, for “record” (w.e.f. 10-5-1995).

Section 31-A. Compulsory licence in unpublished Indian works

(1) Where in the case of an Indian work referred to in sub clause (iii) of clause (I) of Section 2, the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found, any person may apply to the Copyright Board for a licence to publish such work or a translation thereof in any language.

(2) Before making an application under sub section (1), the applicants shall publish his proposal in one issue of a daily newspaper in the English language having circulation in the major part of thee country and where the application is for the publication of a translation in any language, also in one issue of any daily newspaper in that language.

(3) Every such application shall be made in such form as may be prescribed and shall be accompanied with a copy of the advertisement issued under sub section (2) and such fee as may be prescribed.

(4) Where an application is made to the Copyright Board under this section, it may, after holding such inquiry as may be prescribed, direct the Registrar of Copyrights to grant to the applicant a licence to publish the work or a translation thereof, in the language mentioned in the application subject to the payment of such royalty and subject to such other terms and conditions as the Copyright Board may determine, and thereupon the Registrar of Copyrights shall grant the licence to the applicant in accordance with the direction of the copyright Board.

(5) Where a licence is granted under this section, the Registrar of Copyrights may, by order, direct the applicant to deposit the amount of the royalty determined by the Copyright Board in the public account of India or in any other account specified by the Copyright Board so as to enable the owner of the copyright or, as the case may be, his heirs, executors or the legal representatives to claim such royalty at any time.

(6) Without prejudice to the foregoing provisions of this section, in the case of a work referred to in sub section (1), if the original author is dead, the Central Government may, if it considers that the publication of the work is desirable in the national interest, require the heirs, executors or legal representatives of the author to publish such work such period as may be specified by it.

(7) Where any work is not published within the period specified by the Central Government under sub section (6), the Copyright Board may, on an application made by any person for permission to publish the work and after hearing the parties concerned, permit such publication on payment of such royalty as the Copyright Board may, in the circumstances of such case, determine in the prescribed manner.

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1. Ins. by Act 23 of 1983, sec. 12 (w.e.f. 9-8-1984).

Section 32. Licence to produce and publish translations

(1) Any person may apply to the Copyright Board for a licence to produce and publish a translation of a literary or dramatic work in any language ¹[after a period of seven years from the first publication of the work].

¹[(1A) Notwithstanding anything contained in sub-section (1), any person may apply to the Copyright Board for a licence to produce and publish a translation, in printed or analogous forms of reproduction, of a literary or dramatic work, other than an Indian work, in any language in general use in India after a period of three years from the first publication of such work, if such translation is required for the purposes of teaching, scholarship or research:

Provided that where such translation is in a language not in general use in any developed country, such application may be made after a period of one year from such publication.]

(2) Every ²[application under this section] shall be made in such form as may be prescribed and shall state the proposed retail price of a copy of the translation of the work.

(3) Every applicant for a licence under this section shall, along with his application, deposit with the Registrar of Copyrights such fee as may be prescribed.

(4) Where an application is made to the Copyright Board under this section, it may, after holding such inquiry as may be prescribed, grant to the applicant a licence, not being an exclusive licence, to produce and publish a translation of the work in the language mentioned in ³[the application—

(i) subject to the condition that the applicant shall pay to the owner of the copyright in the work royalties in respect of copies of the translation of the work sold to the public, calculated at such rate as the Copyright Board may, in the circumstances of each case, determine in the prescribed manner; and

(ii) where such licence is granted on an application under sub-section(1A), subject also to the condition that the licence shall not extend to the export of copies of the translation of the work outside India and every copy of such translation shall contain a notice in the language of such translation that the copy is available for distribution only in India:

Provided that nothing in clause (ii) shall apply to export by Government or any authority under the Government of copies of such translation in a language other than English, French or Spanish in any country if—

(1) such copies are sent to citizens of India residing outside India or to any association of such citizens outside India; or

(2) such copies are meant to be used for purposes of teaching, scholarship or research and not for any commercial purpose; and

(3) in either case, the permission for such export has been given by the Government of that country:]

⁴[Provided further that no licence under this section] shall be granted, unless—

(a) a translation of the work in the language mentioned in the application has not been published by the owner of the copyright in the work or any person authorised by him, ⁵[within seven years or three years or one year, as the case may be, of the first publication of the work], or if a translation has been so published, it has been out of print;

(b) the applicant has proved to the satisfaction of the Copyright Board that he had requested and had been denied authorisation by the owner of the copyright to produce and publish such translation, or that ⁶[he was, after due diligence on his part, unable to find] the owner of the copyright;

(c) where the applicant was unable to find the owner of the copyright, he had sent a copy of his request for ⁷[such authorisation by registered air mail post to the publisher whose name appears from the work, and in the case of an application for a licence under sub-section (1)], not less than two months before ⁸[such application];

⁹[(cc) a period of six months in the case of an application under sub-section (1A) (not being an application under the proviso thereto), or nine months in the case of an application under the proviso to that sub-section, has elapsed from the date of making the request under clause (b) of this proviso or where a copy of the request has been sent under clause (c) of this proviso, from the date of sending of such copy, and the translation of the work in the language mentioned in the application has not been published by the owner of the copyright in the work or any person authorised by him within the said period of six months or nine months, as the case may be;

(ccc) in the case of any application made under sub-section (1A),—

(i) the name of the author and the title of the particular edition of the work proposed to be translated are printed on all the copies of the translation;

(ii) if the work is composed mainly of illustrations, the provisions of section 32A are also complied with;]

(d) the Copyright Board is satisfied that the applicant is competent to produce and publish a correct translation of the work and possesses the means to pay to the owner of the copyright the royalties payable to him under this section;

(e) the author has not withdrawn from circulation copies of the work; and

(f) an opportunity of being heard is given, wherever practicable, to the owner of the copyright in the work.

9[(5) Any broadcasting authority may apply to the Copyright Board for a licence to produce and publish the translation of—

(a) a work referred to in sub-section (1A) and published in printed or analogous forms of reproduction;or

(b) any text incorporated in audio-visual fixations prepared and published solely for the purpose of systematic instructional activities,

for broadcasting such translation for the purposes of teaching or for the dissemination of the results of specialised, technical or scientific research to the experts in any particular field.

(6) The provisions of sub-sections (2) to (4) in so far as they are relatable to an application under sub-section (1A), shall, with the necessary modifications, apply to the grant of a licence under sub-section (5) and such licence shall not also be granted unless—

(a) the translation is made from a work lawfully acquired;

(b) the broadcast is made through the medium of sound and visual recordings;

(c) such recording has been lawfully and exclusively made for the purpose of broadcasting in India by the applicant or by other broadcasting agency; and

(d) the translation and the broadcasting of such translation are not used for any commercial purposes.

—For the purposes of this section,—

(a) “developed country” means a country which is not a developing country;

(b) “developing country” means a country which is for the time being regarded as such in conformity with the practice of the General Assembly of the United Nations;

(c) “purposes of research” does not include purposes of industrial research, or purposes of research by bodies corporate (not being bodies corporate owned or controlled by Government) or other association or body of persons for commercial purposes;

(d) “purposes of teaching, research or scholarship” includes—

(i) purposes of instructional activity at all levels in educational institutions, including Schools, Colleges, Universities and tutorial institutions; and

(ii) purposes of all other types of organised educational activity.]

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1. Ins. by Act 23 of 1983, sec. 13 (w.e.f. 9-8-1984).

2. Subs. by Act 23 of 1983, sec. 13, for “such application” (w.e.f. 9-8-1984).

3. Subs. by Act 23 of 1983, sec. 13, for certain words (w.e.f. 9-8-1984).

4. Subs. by Act 23 of 1983, sec. 13, for “Provided that no such licence” (w.e.f. 9-8-1984).

5. Subs. by Act 23 of 1983, sec. 13, for “within seven years of the first publication of the work” (w.e.f. 9-8-1984).

6. Subs. by Act 23 of 1983, sec. 13, for “he was unable to find” (w.e.f. 9-8-1984).

7. Subs. by Act 23 of 1983, sec. 13, for “ such authorisation to the publisher whose name appears from the work” (w.e.f. 9-8-1984).

8. Subs. by Act 23 of 1983, sec. 13, for “the application for the licence” (w.e.f. 9-8-1984).

9. Ins. by Act 23 of 1983, sec. 13 (w.e.f. 9-8-1984).

Section 32-A. Licence to reproduce and publish works for certain purposes

(1) Where, after the expiration of the relevant period from the date of the first publication of an edition of a literary, scientific or artistic work,-

(a) The copies of such edition are not made available in India; or

(b) Such copies have not been put on sale in India for a period of six months.

To the general public or in connection with systematic instructional activities at a price reasonably related to that normally charged in India for comparable works by the owner of the right of reproduction or by any person authorised by him in this behalf, any person may apply to the Copyright Board for a licence to reproduce and publish such work in printed or analogous forms of reproduction at the price at which such edition is sold or at a lower price for the purposes of systematic instructional activities.

(2) Every such application shall be made in such forms as may be prescribed and shall state the proposed retail price of a copy of the work to be reproduced.

(3) Every applicant for a licence under this section shall, along with his application, deposit with the Registrar of Copyrights such fee as may be prescribed.

(4) Where an application is made to the Copyright Board under this section, it may, after holding such inquiry as may be prescribed, grant to the applicant a licence, not being an exclusive licence, to produce and publish a reproduction of the work mentioned in the application subject to the condition that ,-

(a) The applicant shall pay to the owner of the copyright in the work royalties in respect of copies of the reproduction of the work sold to the public, calculated at such rate as the Copyright Board may, in the circumstances of each case, determine in the prescribed manner.

(b) A licence granted under this section shall not extend to the export of copies of the reproduction of the work outside India and every copy of such reproduction shall contain a notice that the copy is available for distribution only in India.

Provided that no such licence shall be granted unless-

(a) The applicant has proved to the satisfaction of the Copyright Board that he had requested and had been denied authorisation by the owner of the copyright in the work to reproduce and publish such work to that he was, after due diligence on his part, unable to find such owner.

(b) Where the applicant was unable to find the owner of the Copyright, he had sent a copy of his request for such authorisation by registered airmail post to the publisher whose name appears from the work not less than three months before the application for the licence.

(c) The Copyright Board is satisfied that the applicant is competent to reproduce and publish an accurate reproduction of the work and possesses the means to pay to the owner of the copyright the royalties payable to him under this section.

(d) The applicant undertakes to reproduce and publish the work at such price as may be fixed by the Copyright Board, being a price reasonably related to the price normally charged in India for works of the same standard on the same or similar subjects;

(e) A period of six months in the case of an application for the reproduction and publication of any work of natural science, physical science, mathematics or technology, or a period of three months in the case of an application for the reproduction and publication of any other work, has elapsed from the date of making the request under clause (a), or where a copy of the request has been sent under clause (b), from the date of sending of a copy, and a reproduction of the work has not been published by the owner of the copyright in the work or any person authorised by him within the said period of six months or, three months, as the case may be;

(f) The name of the author and the title of the particular edition of the work proposed to be reproduced are printed on all the copies of the reproduction;

(g) The author has not withdrawn from circulation copies of the work; and

(h) An opportunity of being heard is given, wherever practicable, to the owner of the copyright in the work.

(5) No licence to reproduce and publish the translation of a work shall be granted under this section unless such translation has been published by the owner of the right of translation or any person authorised by him and the translation is not in a language in general use in India.

(6) The provisions of this section shall also apply to the reproduction and publication, or translation into a language in general use in India, of any text incorporated in audio-visual fixation prepared and published solely for the purpose of systematic instructional activities.

Explanation – For the purposes of this section, “relevant period” in relation to any work, means a period of-

(a) Seven years from the date of the first publication of that work, where the application is for the reproduction and publication of any work of , or relating to fiction, poetry, drama, music or art.

(b) Three years from the dare of the first publication of that work, where the application is for the reproduction and publication of any work of, or relating to, natural science, physical science, mathematics or technology, and

Section 32.B. Termination of licences issued under this Chapter

(1) If, at nay time after the granting of a licence to produce and publish the translation of a work in any language under sub section (1-A) of section 32 (hereafter in this sub section referred to as the licensed work) , the owner of the copyright in the work or any person authorised by him publishes a translation of such work in the same language and which is substantially the same in content at a price reasonably related to the price normally charged in India for the translation of works of the same standard on the same or similar subject, the licence so granted shall be terminated.

Provided that no such termination shall take effect until after expiry of a period of three months from the date of service of a notice in the prescribed manner on the person holding such licence by the owner of the right of translation intimation the publication of the translation as aforesaid.

Provided further that copies of the licensed work produced and published by the person holding such licence before the termination of the licence takes effect may continue to be sold or distributed until the copies already produced and published are exhausted.

(2), If , at any time after the granting of a licence to produce and publish the reproduction or translation of any work under section 32-A, the owner of the right of reproduction or any person authorised by him sells or distributes copies of such work or a translation thereof, as the case may be, in the same language and which is substantially the same in content at a price reasonably related to the price normally charged in India or works of the same standard on the same or similar subject, the licence so granted shall be terminated.

Provided that no such termination shall take effect until after the expiry of a period of three months from the date of service of a notice in the prescribed manner on the person holding the licence by the owner of the right of reproduction intimating the sale or distribution of the copies of the editions of work as aforesaid.

Provided further that any copies already reproduced by the licensee before such termination takes effect continue to be sold or distributed until the copies already produced are exhausted.

———————————–

1. Ins. by Act 23 of 1983, sec. 14 (w.e.f. 9-8-1984).

CHAPTER VII – Copyright Societies

Section 33. Registration of copyright society

(1) No person or association of persons shall, after coming into force of the Copyright (Amendment) Act, 1994 commence or, carry on the business of issuing or granting licences in respect of any work in which copyright subsists or in respect of any other rights conferred by this Act except under or in accordance with the registration granted under sub section (3):

Provided that an owner of copyright shall, in this individual capacity, continue to have the right to grant licences in respect of his own works consistent with his obligations as a member of the registered copyright society.

Provided further that a performing rights society functioning in accordance with the provisions of Section 33 on the date immediately before the coming into force of the Copyright (Amendment) Act, 1994 shall be deemed to be a copyright society for the purposes of this Chapter and every such society shall get itself registered within a period one year from the date of commencement of the Copyright (Amendment) Act, 1994.

(2) Any association of persons which fulfils such conditions as may be prescribed may apply for permission to do the business specified in sub section (1) to the Registrar of Copyrights who shall submit the application to the Central Government.

(3) The Central Government may, having regard to the interest of the authors and other owner of rights under this Act, the interest and convenience of the public and in particular of the groups of persons who are most likely to seek licences in applicants, register such association of persons as a copyright society to such conditions as may be prescribed.

Provided that the Central Government shall not ordinarily register more than one copyright society to do business in respect of the same class of works.

(4) The Central Government may, if it is satisfied that a copyright society is being managed in a manner detrimental to the interest of the owners of rights concerned, cancel the registration of such society after such inquiry as may be prescribed.

(5) If the Central Government is of the opinion that in the interest of the owners of rights concerned, it is necessary so to do, it may, by order, suspend the registration of such society pending inquiry for such period not exceeding one year as may be specified in such order under sub section (4) and that Government shall appoint and administrator to discharge the functions of the copyright society.

———————–

* Chapter VII (containing sections 33, 34, 34A, 35, 36 and 36A) subs. by Act 38 of 1994, sec. 11, for Chapter VII (containing sections 33 to 36) (w.e.f. 10-5-1995).

Section 34. Administration of rights of owner by copyright society

(1) Subject to such conditions as may be prescribed,-

(a), a copyright society may accept from an owner of rights exclusive authorisation to administer any right in any work by issue of licences or collection of licence fees or both, and

(b) an owner of rights shall have the right to withdraw such authorisation without prejudice to the rights of the copyright society under any contract.

(2) It shall be competent for a copyright society ot enter into agreement with any foreign society or organisation administering rights corresponding to rights under this Act, to entrust to such foreign society or organisation the administration in any foreign country of rights administered by the said copyright society in India, or for administering in India the rights administered in a foreign society or organisation the administration in any foreign country of rights administered by the said copyright society in India, or for administering in India the rights administered in a foreign country by such foreign society or organisation.

Provided that no such society or organisation shall permit any discrimination in regard to the terms of licence or the distribution of fees collected between rights in Indian and other works.

(3) Subject to such conditions as may be prescribed, a copyright society may -

(i) Issue licences under Section 30 in respect of any rights under this Act,

(ii) Collect fees in pursuance of such licences,

(iii) Distribute such fees among owners of rights after making deductions for its own expenses,

(iv) Perform any other functions consistent with the provisions of Section 35.

———————-

* Chapter VII (containing sections 33, 34, 34A, 35, 36 and 36A) subs. by Act 38 of 1994, sec. 11, for Chapter VII (containing sections 33 to 36) (w.e.f. 10-5-1995).

Section 34-A. Payment of remunerations by copyright society

(1) If the Central Government is of the opinion that a copyright society for a class of work is generally administering the rights of the owners of rights in such work throughout India, it shall appoint that society for the purposes of this section.

(2) The copyright society shall, subject to such rules as may be made in this behalf, frame a scheme for determining the quantum of remuneration payable to individual copyright owners having regard to the number of copies of the work is circulation:

Provided that such scheme shall restrict payment to the owners of rights whose works have attained a level of circulation which the copyright society considers reasonable.

———————

* Chapter VII (containing sections 33, 34, 34A, 35, 36 and 36A) subs. by Act 38 of 1994, sec. 11, for Chapter VII (containing sections 33 to 36) (w.e.f. 10-5-1995).

Section 35. Control over the copyright society by the owner of rights

^*[35. Control over the copyright society by the owner of rights.—(1) Every copyright society shall be subject to the collective control of the owners of rights under this Act whose rights it administers (not being owners of rights under this Act administered by a foreign society or organisation referred to in sub-section (2) of section 34) and shall, in such manner as may be prescribed,—

(a) obtain the approval of such owners of rights for its procedures of collection and distribution of fees;

(b) obtain their approval for the utilisation of any amounts collected as fees for any purpose other than distribution to the owner of rights; and

(c) provide to such owners regular, full and detailed information concerning all its activities, in relation to the administration of their rights.

(2) All fees distributed among the owners of rights shall, as far as may be, be distributed in proportion to the actual use of their works.]

———————–

* Chapter VII (containing sections 33, 34, 34A, 35, 36 and 36A) subs. by Act 38 of 1994, sec. 11, for Chapter VII (containing sections 33 to 36) (w.e.f. 10-5-1995).

Section 36. Submission of returns and reports

(1) Every copyright society shall submit to the Registrar if Copyright such returns as may be prescribed.

(2) Any officer duly authorised by the Central Government in this behalf may call for any report and also call for any record of any copyright society for the purpose of satisfying himself that the fees collected by the society in respect of rights administered by it are being utilised or distributed in accordance with the provisions of this Act.

—————-

* Chapter VII (containing sections 33, 34, 34A, 35, 36 and 36A) subs. by Act 38 of 1994, sec. 11, for Chapter VII (containing sections 33 to 36) (w.e.f. 10-5-1995).

Section 36-A. Rights and liabilities of performing rights societies

^*[36A. Rights and liabilities of performing rights societies.—Nothing in this Chapter shall affect any rights or liabilities in any work in connection with a performing rights society which had accrued or were incurred on or before the day prior to the commencement of the Copyright (Amendment) Act, 1994, or any legal proceedings in respect of any such rights or liabilities pending on that day.]

———————–

* Chapter VII (containing sections 33, 34, 34A, 35, 36 and 36A) subs. by Act 38 of 1994, sec. 11, for Chapter VII (containing sections 33 to 36) (w.e.f. 10-5-1995)

CHAPTER VIII – Rights of Broadcasting Organisation and of Performers

Section 37. Broadcast reproduction right

(1) Every broadcasting organistaon shall have a special right to the know as ‘broadcast reproduction right” in respect of its broadcasts.

(2) The broadcast reproduction right shall subsist until twenty five years from the beginning of the calendar year next following the year in which the broadcast in made.

(3) During the continuance of a broadcast reproduction right in relation to an broadcast, any person who, without the licence of the owner of the right does nay of the following acts of the broadcast or any substantial part thereof,-

(a) Rebroadcasts the broadcast, or

(b) Causes the broadcasts to be heard or seen by the public on payment of any charges, or

(d) Makes any reproduction of such sound recording or visual recording where such initial recording was done without licence or, where it was licence, for any purposes not envisaged by such licence, or

(e) Sells or heirs to the public, or offers for such sale or hire, any such sound recording or visual recording referred to in clause (C) or clause (d), shall, subject to the provisions of Section 39, be deemed to have infringed broadcast reproduction right.

Section 38. Performer’s right

(1) Where any performer appears or engages in any performance, he shall have a special right to be known as the “performer’s right” in relation to such performance.

(2) The performer’s right shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the performance is made.

(3) During the continuance of performer’s right in relation to any performance, any person who, without the consent of the performer, does any of the following acts in respect of the performance or any substantial part thereof, namely;-

(a) Makes a sound recording or visual recording of the performance, or

(b) Reproduces a sound recording or visual recording of the performance, which sound recording or visual recording was-

(i) Made for purposes different from those for which the performer gave his consent, or

(ii) Made for purposes different from those referred to in Section 39 from a sound recording or visual recording which was made in accordance with Section 39, or

(a) Broadcasts the performance except where the broadcast is made from a sound recording or visual recording other than one made in accordance with Section 39, or is a rebroadcast by the same broadcasting organisation of an earlier broadcast which did not infringe the performer’s right, or

(b) Communicates the performance to the public otherwise than by broadcast, except where such communication to the public is made from a sound recording or visual recording or a broadcast.

Shall, subject to the provisions of section 39, be deemed to have infringed the performer’s right.

(4) Once a performer has consented to the incorporation of his performance in a cinematograph film, the provision of sub sections (1), (2) and (3) shall have no further application to such performance.

Section 39. Acts not infringing broadcast reproduction right or performer’s right

No broadcast reproduction right or performer’s right shall be deemed to be infringed by-

(a) The making of any sound recording or visual recording for the private use of the person making such recording, or solely for purposes of bona fide teaching or research, or

(b) The use, consistent with fair dealing, of excepts of a performance or of a broadcast in the reporting of current events or for bona fide review, teaching or research, or

(c) Such other acts, with any necessary adaptations and modifications, which do not constitute infringement of copyright under Section 52.

—————————–

1. Subs. by Act 38 of 1994, sec. 15, for section 39 (w.e.f. 10-5-1995).

Section 39-A. Other provisions applying to broadcast reproduction right and performer’s right

Sections 18, 19, 30, 53, 55, 58, 64, 65 and 66 shall, with any necessary adaptations and modifications, apply in relation to the broadcast reproduction right in any broadcast and the performer’s right in any performance as they apply in relation to copyright in a work.

Provided that where copyright or performer’s right subsists in respect of any work or performance that has been broadcast, no licence to reproduce such broadcast shall take effect without the consent of the owner of rights or performer, as the case may be, or both of them.

——————————-

1. Subs. by Act 38 of 1994, sec. 15, for section 39 (w.e.f. 10-5-1995).

CHAPTER IX – International Copyright

Section 40. Power to extend copyright to foreign works

The Central Government may, by order published in the Official Gazette, direct that all or any provisions of this Act, shall apply.

(a) To work first published in any territory outside India to which the order related in like manner as if they were first published within India,

(b) To unpublished works, or any class thereof, the authors whereof were at the time of the making of the work, subjects or citizens of a foreign country to which the order relates, in like manner as if the authors were citizens of India.

(c) In respect of domicile in any territory outside India to which the order relates in like manner as if such domicile were in India

(d) To any work of which the author was at the date of the first publication thereof, or, in case where the author was dead at the date, was at the time of his death, a subject or citizens of foreign country to which the order relates in like manner as if the author was a citizen of India at that date or time.

And thereupon, subject to the provisions of this Chapter and of the order, this Act shall apply accordingly.

Provided that –

(i) Before making an order under this section in respect of any foreign country (other than a country with which India has entered into a treaty or which is a party to a convention relating to copying to which India is also a party, the Central Government shall be satisfied that foreign country has made, or has undertaken to make, such provision, if any, as it appears to the Central Government expedient to require for the protection in that country of works entitled to copyright under the provisions of this Act,

(ii) The order may provide that the provisions of this Act shall apply either generally or in relation to such classes of works or such classes of case may be specified in the order.

(iii) The order may provide that the term of copyright in India shall not exceed that conferred by the law of the country to which the order relates:

(iv) The order may provide that the enjoyment of the rights conferred by this Act shall be subject to the accomplishment of such conditions and formalities, if any, as may be prescribed by the order,

(v) In applying the provisions of this Act as to ownership of copyright, the order may make such exceptions and modifications as appear necessary, having regard to the law of the foreign country.

(vi) The order may provide that this Act or any part thereof shall not apply to works made before the commencement of the order or that this Act or any part thereof shall not apply to works first published before the commencement of the order.

Section 41. Provisions as to works of certain international organisations

(1) Where-

(a) Any work is made or first published by or under the direction or control of any organsiation to which the section applies, and

(b) There would, apart from this section, be no copyright in the work in India at the time of the making or, as the case may be, of the first publication thereof, and

(i) The work is published as aforesaid in pursuance of an agreement in that behalf with the author, being an agreement which does not reserve to the author the copyright, if any, in the work, or

(ii) Under Section 17 any copyright in the work would belong to the organisation.

There shall, by virtue of this section, be copyright in the work throughout India.

(2) Any organisation to which this section applies which at the material time had not the legal capacity of a body corporate shall have and be deemed at all material times to have had the legal capacity of a body corporate for the purposes of holding, dealing with, and enforcing copyright and in connection with all legal proceeding relating to copyright.

(3) The organisation to which this section applies are such organisation as the Central Government may, by order published in the Official Gazette, declare to be organisation of which one or more sovereign powers or the Government or Governments thereof are members to which it is expedient that this section shall apply.

Section 42. Power to restrict rights in works of foreign authors first published in India

If it appears to the Central Government that a foreign country does not give or has not undertaken to give adequate protection to the works of Indian authors, the Central Government may, by order published in the Official Gazette, direct that such of the provisions of this Act as confer copyright on works first published after the date specified in the order, the authors whereof are subjects or citizens of such foreign country and are not domiciled in India, and thereupon those provisions shall not apply to such works.

Section 43. Orders under this Chapter to be laid before Parliament

Every order made by the Central Government under this Chapter shall, as soon as may be after it is made, be laid before both Houses of Parliament and shall be subject to such modifications as Parliament may make during the session in which it is so laid or the session immediately following.

CHAPTER X – Registration of Copyright

Section 44. Register of Copyright

There shall be kept at the Copyright Office a register in the prescribed form to be called the Register of Copyrights in which may be entered the names or titles of works and the names and address of authors, publishers and owners of copyright and such other particulars as may be prescribed.

Section 45. Entries in Register of Copyrights

(1) The author or published of, or the owner of or other person interested in the copyright in, any work may make an application in the prescribed form accompanied by the prescribed fee to the Registrar of Copyrights for entering particulars of the work in the Register of Copyrights.

[(Note: Added by Act 23 of 1983, S.16 (w.e.f. 9-8-1984) Provided that in respect of an artistic work which in used or is capable of being used in relation to any goods, the application shall include a statement to that effect and shall be accompanied by a certificate from the Registrar of Trade Marks referred to in Section 4 of the Trade and Merchandise Marks Act, 1958 (43 of 1958), to the effect that no trade mark identical with or deceptively similar to such artistic work has been registered under than Act in the name of, or that no application has been made under that Act for such registration by, any person other than the applicant.]

(2) On receipt of an applicant in respect of any work under sub section (1), the Registrar of Copyrights may, after holding any such inquiry as he may deem fit, enter the particulars of the work in the Register of Copyrights.

NOTES

Registration not essential – Registration is not a condition precedent for filing any action against infringement of copyright. The provision is optional and is only intended to provide a prima facie proof of the particulars.

Non-registration does not deprive the owner of copyright of his right to bring both criminal and civil action.

Section 46. Indexes

There shall be also kept at the Copyright Office such indexes of the Register of Copyrights, as may be prescribed.

Section 47. Form and inspection of register.

The register of Copyrights and indexes thereof kept under this Act shall at all reasonable times be open to inspection, and any person shall be entitled to take copies of, or make extracts from, such register or indexes on payment of such fee and subject to such conditions as may be prescribed.

Section 48. Register of Copyrights to be prima facie evidence of particulars entered therein

The Register of Copyright shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries therein, or extracts there from certified by the Registrar of Copyrights and sealed with the seal of the Copyright Office shall be admissible in evidence in all courts without further proof or production of the original.

Section 49. Correction of entries in the Register of Copyrights

The Register of Copyrights may, in the prescribed cases and subject to the prescribed conditions, amend or alter the Register of Copyrights by -

(a) Correcting any error in any name, address or particulars, or

(b) Correcting any other error which may have arisen therein by accidental slip or omission.

Section 50. Rectification of Register by Copyright Board

The Copyright Board, on application of the Registrar of Copyrights or of any person aggrieved, shall order the rectification of the Register of Copyrights by-

(a) The making of any entry wrongly omitted to be made in the register, or

(b) The expunging of any entry wrongly made in, or remaining on, the register, or,

Section 50A. Entries in the Register of Copyrights, etc. to be published

Every entry made in the Register of Copyrights or the particulars of any work entered under Section 45, the correction of every entry made in such register under Section 49, and every rectification ordered under section 50, shall be published by the Registrar of Copyrights in the Official Gazette or in such other manner as he may deem fit.

Section 51. When copyright infringed

(a) When any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any conditions imposed by a competent authority under this Act-

(i) Does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or

(ii) [(Note: Subs. by Act 38 of 1994, S.16(1) (w.e.f. a date to be notified)) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright, or]

(b) When any person -

(i) Make for sale on hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or

(ii) Distributes either for the purposes of trade or to such an extent as to affect prejudicially the owner of the copyright, or

(iii) By way of trade exhibits in public, or

(iv) Imports (Omitted by Act 65 of 1984, S.3 (w.e.f. 8-10-1984)) into India, any infringing copies of the work:

[(Note: Subs. by Act 38 of 1994, S.16(2) (w.e.f. a date to be notified)) Provided that nothing in such clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.]

Explanation – For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.

NOTES

Basis of Copyright Law. – The fundamental idea of violation of copyright or imitation is the violation of the eighth commandment: “Thou shall not steal,” which makes the moral basis of the protective provisions of the Copyright Act.. It is obvious that when a writer or a dramatist produces a drama, it is the result of his great labour, energy, time and ability and if any other person is allowed to appropriate the labours of the copyright work, his act amounts to theft by depriving the original owner of the copyright of the product of his labour.

Test – There is no better way of detecting the piracy in an alleged infringing work than by making a careful examination of it to see whether any of the deviation and mistakes which artistic licence permits in the original have been reproduced in the alleged infringing copy.

Similar mistakes – Where the mistakes committed by the plaintiff in certain calculations in his book were found in the defendant’s book in similar calculations it was held that the defendant had copied the calculations from plaintiff’s book.

Common source – A person is at liberty to draw upon common sources of information. But if he saves himself the trouble and labour requisite for collecting that information by adopting another’s work with colorable variations, he is guilty of infringement of copyright, even though the original work is based on materials which are common property.

It is well-settled that even where the source of information used in a book is common and which is available to all, even then a compilation which has been brought out as a result of labour and industry put by a person, then in such a case he can claim a copyright in the publication brought out by him.

Several persons may originate similar works in the same general form without anyone infringing the law in regard to copyright. The infringement comes in only when it can be shown that someone has, instead of utilizing the available sources to originate his work, appropriated the labours of another by resorting to a slavish copy or mere colorable imitation thereof.

In cases of works composed of or compiled or prepared from materials open to all the true principle is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at, for the purpose of producing his work, that is in fact, merely to take away the result of another man’s labour or on other words, hi property.

A person relying on plea of common source must show that he went to common source from which he borrowed, employing his skill, labour and brains and that he did not merely do the work of copyist by copying away from a work.

In law books the amount of “originality” will be very small, but that small amount is protected by law.

In law reports containing only approved repots of cases decided by courts, there is copyright. A man is not allowed to appropriate for himself the arrangement, sequence, order, idiom, etc., employed by another, using his brains, skill and labour.

The plaintiffs complied their book with considerable labour from various sources and digested and arranged the matter taken by them from other authors. The defendant instead of taking pains of searching into all common sources and obtaining his subject-matter from them availed himself of the labour of the plaintiffs and adopted their arrangement and subject-matter. Such a use by defendant of the plaintiffs book cannot be regarded as legitimate.

Where the balance of convenience and inconvenience on both sides is equal, the defendant who has been proved to have prima facie infringed the copyright of the plaintiff’s work must suffer inconvenience by grant of injunction rather than the plaintiff by not granting it.

Temporary injunction may be granted even if reference pirated by the defendant are insignificant compared to the total volume of the defendant’s work.

Abridgement and translations can both infringe copyright – 70 Cal WN 1130.

Section 52. Certain acts not to be infringement of copyright

(1) The following acts shall not constitute an infringement of copyright namely -

(a) A fair dealing with a literary, dramatic, musical or artistic work [not being a computer programme (Note: Ins. by Act 38 of 1994, S.17 (w.e.f. a date to be notified))] for the purposes of –

(i) [(Note: Subs. by Act 38 of 1994, S.17 (w.e.f. a date to be notified)) private use, including research:]

(ii) Criticism or review, whether of that work or of any other work.

(aa) [(Note: Ins. by Act 38 of 1994, S.17 (w.e.f. a date to be notified)) The making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme, from such copy-

(i) In order to utilize the computer programme for the purposes for which ti was supplied, or

(ii) To make back up copies purely as a temporary protection against loss, destruction or damage in order only to utilize the computer programme for the purpose for which it was supplied;]

(b) A fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events-

(i) In a newspaper, magazine or similar periodical, or

(ii) By [(Note: Subs. for “radio-diffusion” by Act 23 of 1983, S.2 (w.e.f. 9-8-1984)) broadcast] or in a cinematograph film or by means of photographs,

[(Note: Ins. by Act 23 of 1983, S.18 (w.e.f. 9-8-1984)) Explanation – The publication of a compilation of address or speeches delivered in public is not a fair dealing of such work within the meaning of this clause.]

(a) The reproduction of a literary, dramatic, musical or artistic work for the purpose of judicial proceeding or for the purpose a report of a judicial proceedings;

(b) The reproduction or publication of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of a Legislature, or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the members of that Legislature;

(c) The reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force;

(d) The reading or recitation in public of any reasonable extract form a published literary or dramatic work;

(e) The publication in a collection, mainly composed on non copyright matter, bona fide intended for the use of educational institutions and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not themselves published for the use of educational institutions, in which copyright subsists;

Provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years.

Explanation – In the case of a work of joint authorship, references in this clause to passages from works shall include references to passages from works by any one or more of the authors of those passages or by any one or more those authors in collaboration with any other person;

(f) The reproduction of a literary, dramatic, musical or artistic work-

(i) By a teacher or a pupil in the course of instruction, or

(ii) As part of the questions to be answered in an examination, or

(iii) In answers to such questions

(g) The performance, in the course of the activities of an educational institutions, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a [(Note: Subs. by Act 38 of 1994, S.2 (xii) (w.e.f. a date to be notified)) sound recording], if the audience is limited to such staff and students, the parents and guardians of the students and persons directly connected with activities of the institution [(Note: Ins. by Act 38 of 1994, S.17 (w.e.f. a date to be notified)) or the communication to such an audience of a cinematograph film or sound recording];

(h) [(Note: Subs. by Act 38 of 1994, S.17 (w.e.f. a date to be notified)) The making of sound recordings in respect of any literary, dramatic or musical work, if-

(i) Sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work

(ii) The person making the sound recordings has given a notice of his intentions to make the sound recordings, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalties in respect of all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this behalf.

Provided that-

(i) No alterations shall be made which have not been made previously by or with the consent of the owner of rights, or which are not reasonably necessary for the adaptation of the work for the purpose of making the sound recordings.

(ii) The sound recordings shall not be issued in any form of packaging or with any label which is likely to mislead or confuse the public as to their identity.

(iii) No such sound recording shall be made until the expiration of two calendar years after the end of the year in which the first sound recording of the work was made, and

(iv) The person making such sound recordings shall allow the owner of rights or his duly authorised agent or representative to inspect all records and books of accounts relating to such sound recording.

Provided further that if on a complaint brought before the Copyright Board to the effect that the owner of rights has not been paid in full for any sound recordings purporting to be made in pursuance of this clause, the Copyright Board is prima facie, satisfied that the complaint is genuine. It may pass an order ex prate directing the person making the sound recording to cease from making further copies and, after holding such inquiry as it considers necessary, make such further orders as it may deem fit, including an order for payment of royalty.

(i) The causing of a recording to be heard in public by utilizing it, -

(i) In an enclosed room or shall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein, or

(ii) As part of the activities of a club or similar organisation which is not established or conducted for profit.

(k) The performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non paying audience, or for the benefit of a religious institution.

(l) The reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction.

(m) The publication in a newspaper, magazine or other periodical of a report of a lecture delivered in public

(n) The making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plant) by or under the direction of the person in charge of a public library for the use of the library if such book is not available for sale in India.

(o) The reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access.

Provided that where the identity of the author of such work, or, in the case of a work of joint authorship, of any of the authors is known to the library, museum or other institution, as the case may be, the provisions of this clause shall apply only if such reproduction is made at a time more than fifty years from the date of the death of the author or, in the case of a work of joint authorship, from the death of the author whose identify is known or, if the identify of more authors than one is known from the death of such of those authors who dies last.

(p) The reproduction or publication of-

(i) Any matter which has been published in any Gazette except an Act if a Legislature.

(ii) Any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or nay other original matter.

(iii) The report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of Legislature, unless the reproduction or publication of such report is prohibited by the Government.

(iv) Any judgement or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgement or order is prohibited by the court, the tribunal or other judicial authority, as the case may be

(q) the production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders made there under-

(i) If no translation of such Act or rules or orders in that language has previously been produced or published by the Government, or

(ii) Where a translation of such Act or rules or orders in that language has been produced or published by the Government if the translation is not available for sale to the public

Provided that such translation contains a statement at a prominent place to the effect that the translation has not been authorised or accepted as authentic by the Government.

(r) [(Note: subs. by Act 38 of 1994, S.17 (w.e.f. a date to be notified)) the making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture.]

(s) The making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work falling under sub clause (iii) of clause (e) of Section 2, if such work is permanently situate in a public place or any premises to which the public has access.

(t) The inclusion in a cinematograph film of-

(i) Any artistic work permanently situate in a public place or any premises to which the public has access, or

(ii) Any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film,

(u) The use by the author of an artistic work where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work.

Provided that he does not thereby repeat or imitate the main design of the work

(v) (Note: Omitted by Act 38 of 1994, S.17 (w.e.f. a date to be notified))

(w) The reconstruction of a building or structure in accordance with the architectural drawings or plans by references to which the building or structure was originally constructed.

Provided that the original construction was made with the consent or licence of the owner of the copyright in such drawings and plans,

(x) In relation to a literary, dramatic or musical work recorded or reproduced in any cinematograph film, the exhibition of such film after the expiration of the term of copyright therein.

Provided that provisions of sub clause (ii) of clause (a), sub clause (I) of clause (b) and clauses (d), (f), (g), (m), and (p) shall not apply as respects any act unless that act is accompanied by an acknowledge –

(i) Identifying the work by its title or other description, and

(ii) Unless the work is anonymous or the author of the work has previously agreed or required that no acknowledgement of his name should be made, also identifying the author.

(y) [(Note: Ins. by Act 38 of 1994, S.17 (w.e.f. a date to be notified)) the making of an ephemeral recording, by a broadcasting organisation using its own facilities for its own broadcast by a broadcasting organisation of a work which it has the right to broadcast, and the retention of such recording for archival purpose on the ground of its exceptional documentary character.

(z) The performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority.

Explanation – For the purpose of this clause, religious ceremony includes a marriage procession and other social festivities associated with a marriage.]

(2) The provision of sub section (I) shall apply to the doing of any act in relation to the translation of a literary, dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to the work itself.

Section 52A. Particulars to be included in sound recordings and video films

(1)No person shall publish a [(Note: Subs. by Act 38 of 1994, S.2 (xii) (w.e.f. a date to be notified)) sound recording] in respect of any work unless the following particulars are displayed on the [(Note: Subs. by Act 38 of 1994, S.2 (xii) (w.e.f. a date to be notified)) sound recording] and on nay container thereof, namely :-

(a) The name and address of the person who has made the [(Note: Subs. by Act 38 of 1994, S.2 (xii) (w.e.f. a date to be notified)) sound recording];

(b) The name and address of the owner of the copyright is such work; and

(2) No person shall publish a video film in respect of any work unless the following particulars are displayed in the video film, when exhibited, and on the video cassette or other container thereof, namely:-

(a) If such work is cinematograph film required to be certified for exhibition under the provisions of the Cinematograph Act, 1952 (37 of 1952), a copy of the certificate granted by the Board of Film Certification under Section 5-A of that Act in respect of such work.

(b) The name and address of the person who has made the video film and a declaration by him that he has obtained the necessary licence or consent from the owner of the copyright in such work for making such video film, and

Section 52B. Accounts and audit

(1) Every copyright society appointed under Section 345-A shall maintain proper accounts and other relevant records and prepare an annual statement of accounts, in such form and in such manner as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India.

(2) The accounts of each of the copyright societies in relation to the payments received from the Central Government shall be audited by the Comptroller and Auditor-General of India such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the copyright society to the Comptroller and Auditor General.

(3) The Comptroller and Auditor-General of India or any other person appointed by him in connection with the audit of the accounts of the copyright society referred to in sub section (2) 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 the Government accounts and, in particular, shall have the right to demand the production of books, accounts and other documents and papers and to inspect any of the offices of the copyright society for the purpose only of such audit.

(4) The accounts of each of the copyright societies as certified by the Comptroller and Auditor-General of India or any other person appointed by him in this behalf together with the audit report thereon shall be forwarded annually to the Central Government and that Government shall cause the same to be laid before each House of Parliament.

Section 53. Importation of infringing copies

(1) The Registrar of Copyrights, on application by the owner of the copyright in nay work or by his duly authorised agent and on payment of the prescribed fee, may, after making such inquiry as he deems fit, order that copies made out of India, of the work which if made in India would infringe copyright shall not be imported.

(2) Subject to any riles made under this Act, the Registrar of Copyrights or any person authorised by him in this behalf may enter any ship, dock or premises where any such copies as are referred to in sub section (1) may be found and may examine such copies.

(3) All copies to which any order made under sub section (1) applies shall be deemed to be goods of which the import has been prohibited or restricted [(Note: Subs. for “under Section 19 of the Sea Customs Act, 1871″ by Act 23 of 1983, S.19 (w.e.f. 9-8-1984)) under section 11 of the Customs Act, 1962 (51 of 1962)], and all the provisions of that Act shall have effect accordingly:

Provided that all such copies confiscated under the provisions of the said Act shall not vest in the Government but shall be delivered to the owner of the copyright in the work.

Section 53A. Resale share right in original copies

(1) In the case of resale for a price exceeding ten thousand rupees, of the original copy of a painting, sculpture on drawing, or of the original manuscript of a literary or dramatic work or musical work, the author of such work if he was the first owner of rights under Section 17 or his legal heirs shall, notwithstanding any assignment of copyright in such work, have a right to share in the resale price of such original copy or manuscript in accordance with the provisions of this section:

Provided that such right shall cease to exist on the expiration of the term of copyright in the work.

(2) The share referred to in sub section (1) shall be such as the Copyright Board may fix and the decision of the Copyright Board in this behalf shall be final :

Provided that the Copyright Board may fix different shares for different classes of work:

Provided further that in no case shall the share exceed ten per cent of the resale price.

(3) If any dispute arises regarding the right conferred by this section, it shall be referred to the Copyright Board whose decision shall be final.

CHAPTER XII – Civil Remedies

Section 54. Definition

For the purposes of this Chapter, unless the context otherwise requires, the expression, “owner of copyright” shall include-

(a) An exclusive licensee :

(b) In the case of an anonymous or pseudonymous literary, dramatic, musical or artistic work, the publisher of the work, until the identity of the author or, in the case of an anonymous work of joint authorship, or a work of joint authorship published under names all of which are pseudonyms, the identity of any of the authors, is disclose publicly by the author and the publisher or is otherwise established to the satisfaction of the Copyright Board by that author or his legal representatives.

Section 55. Civil remedies for infringement of copyright

(1) Where copyright is any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right.

Provided that if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the Plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the court may in the circumstances deem reasonable.

(2) Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that of the author or the publisher, as the case may be, appears on copies of the work as published, or, in the case of an artistic work, appeared on the work when it was made, the person whose name so appears or appeared shall, in any proceeding in respect of infringement of copyright in such work, be presumed, unless the contrary is provided, to be the author or the publisher of the work, as the case may be.

(3) The costs of all parties in any proceeding in respect of the infringement of copyright shall be in the discretion of the court.

NOTES

Injunctions – The power of the Court to grant a temporary injunction is not limited by the absence of any finding on the question of jurisdiction which has been raised in the case.

The precise rule of law contained in cl. (f), S.56, Specific Relief Act, cannot, interfere in any way with the discretion of the Court in regard to a temporary injunction the grant of which should therefore be governed by other principles.

Section 56. Protection of separate rights

Subject to the provisions of this Act, where the several rights comprising the copyright in any work are owned by different person, the owner of any such right shall , to the extent of that right, be entitled to the remedies provided by this Act and may individually enforce such right by means of any suit, action or other proceeding without making the owner of any other right a party to such suit, action or proceeding.

Section 57. Authors special rights

[(Note: Subs. by Act 38 of 1994, S.20(w.e.f. a date to be notified)) (1) Independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right-

(a) To claim authorship of the work : and

(b) To restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honor or reputation.

Provided that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer programme to which clause (aa) of sub section (1) of Section 52 applies.

Explanation- Failure to display a work or to display it to them satisfaction of the author shall not be deemed to be an infringement of the right conferred by this section.

(2) The right conferred upon an author of a work by sub section (1), other than the right to claim authorship of the work, may be exercised by the legal representatives of the author.

Section 58. Right of owner against persons possessing or dealing with infringing copies

All infringing copies of any work in which copyright subsists and all plates used or intended to be used for the production of such infringing copies shall be deemed to be the property of the owner of the copyright, who accordingly may take proceedings for the recovery of possession thereof or in respect of the conversion thereof.

Provided that the owner of the copyright shall not be entitled to any remedy in respect of the conversion of any infringing copies, if the opponent proves -

(a) That he was not aware and had not reasonable ground to believe that copyright subsisted in the work of which such copies are alleged to be infringing copies; or

(b) That he had reasonable grounds for believing that such copies or plates do not involve infringement of the copyright in any work.

NOTES

Infringing copies and price of copies sold can be recovered by owner of copyright – Gopal Das v. Jagannath Prasad. AIR 1938 ALL 266.

Section 59. Restriction on remedies in the case of works of architecture

(1) Notwithstanding anything contained in [Note: Subs. for “the Specific Relief Act,1877″ by Act 23 of 1983, S.20 (w.e.f. 9-8-1984)) the Specific Relief Act, 1963 (47 of 1963)], where the construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work has been commenced, the owner of the copyright shall not be entitled to obtain an injunction to restrain the construction of such building or structure or to order its demolition.

(2) Nothing in Section 58 shall apply in respect of the construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work.

Section 60. Remedy in the case of groundless threat of legal proceedings

Where any person claiming to be the owner of copyright in any work, by circulars, advertisements or otherwise, threatens any other person with any legal proceedings or liability in respect of an alleged infringement of the copyright, any person aggrieved thereby may, notwithstanding anything contained [(Note: Subs. for “in Section 42 of the Specific Relief Act,1877″ by Act 23 of 1983, S.21 (w.e.f. 9-8-1984)) in section 34 of the Specific Relief Act,, 1963 (47 of 1963)] institute a declaratory suit that the alleged infringement to which the threats related was not in fact an infringement of any legal rights of the person making such threats and may in any such suit-

(a) Obtain an injunction against the continuance of such threats, and

(b) Recover such damages, if any, as he has sustained by reason of such threats:

Provided that this section shall not apply if the person making such threats, with due diligence, commences and prosecutes an action of infringement of the copyright claimed by him.

Section 61. Owner of copyright to be party to the proceeding

(1) In every civil suit or other proceeding regarding infringement of copyright instituted by an exclusive licensee, the owner of the copyright shall, unless the court otherwise directs, be made a defendant and where such owner is made a defendant, he shall have the right to dispute the claim of the exclusive licensee.

(2) Where any civil suit or other proceeding regarding infringement of copyright instituted by an exclusive licensee is successful, no fresh suit or other proceeding in respect of the same cause of action shall lie at the instance of the owner of the copyright.

Section 62. Jurisdiction of court over matters arising under this Chapter

(1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction.

(2) For the purpose of sub section (1), a “district court having jurisdiction ” shall notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a district court within the local limits of whose jurisdiction , at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain.

CHAPTER XIII – Offences

Section 63. Offence of infringement of copyright or other rights conferred by this Act

Any person who knowingly infringes or abets the infringement of-

(a) The copyright in a work, or (b) Any other right concerned by this Act [(Note: Ins. by Act 38 of 1994, S.21 (w.e.f. a date to be notified)) except the right conferred by Section 53-A]

[(Note: Subs. by Act 65 of 1984, S.5 (w.e.f. 8-10-1984)) shall be punishable with imprisonment for a term which shall not be less than six months but which may extended to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:

Provided that [(Note: Ins. by Act 38 of 1994, S.21 (w.e.f. a date to be notified)) where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.]

Explanation – Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section.

Section 63-A. Enhanced penalty on second and subsequent convictions

Whoever having already been convicted of an offence under Section 63 is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakhs rupees.

Provided that [(Note: Ins. by Act 38 of 1994, S.22 (w.e.f. a date to be notified)) where the infringement has not been made for again in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than one year or a fine of less than one lakh rupees.

Provided further that for the purpose of this section, no cognizance shall be taken of any conviction made before the commencement of the Copyright (Amendment) Act, 1984 (65 of 1984).]

Section 63-B. Knowing use of infringing copy of computer programme to be an offence

Any person who knowingly makes use on a computer of an infringing copy of a computer programme shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.

Provided that where the computer programme has not been used for gain or in the course of trade or business, the court may, for adequate and special reasons to be mentioned in the judgement, not impose any sentence of imprisonment and may impose a fine which may extend to fifty thousand rupees.

Section 64. Power of police to seize infringing copies

[Note: Subs. for sub-section (1) by Act 65 of 1984, S.7 (w.e.f. 8-10-1984)) (1) Any police officer, not below the rank of a sub inspector, may, if he is satisfied that an offence under Section 63 in respect of the infringement of copyright in work has been, is being, or is likely to be, committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable, be produced before a Magistrate.]

(2) Any person having an interest in any copies of a work [(Note: Ins. by Act 65 of 1984, S.7 (w.e.f. 8-10-1984)) , or plates] seized under sub section (1) may, within fifteen days of such seizure, make an application to the Magistrate for such copies [(Note: Ins. by Act 65 of 1984, S.7 (w.e.f. 8-10-1984)) or plates] being restored to him and the Magistrate, after hearing the applicant and the complainant and making such further inquiry as may be necessary, shall make such order on the application, as he may deem fit.

Section 65. Possession of plates for purpose of making infringing copies

Any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which copyright subsists shall be punishable with imprisonment which may extend to [(Note: Subs. for “one year, or with fine, or with both” by Act 65 of 1984,S.8 (w.e.f. 8-10-1984)) two years and shall also be liable to fine.]

Section 66. Disposal of infringing copies or plates for purpose of making infringing copies

The court trying and offence under this Act may, whether the alleged offender is convicted or not, order that all copies of the work or all plates in the possession of the alleged offender, which appear to it to be infringing copies, or plates for the purpose of making infringing copies, be delivered up to the owner of the copyright.

Section 67. Penalty for making false entries in register etc, for producing or tendering false entries

Any person who,-

(a) Makes or causes to be made a false entry in the Register of Copyrights kept under this Act, or

(b) Makes a causes to be made a writing falsely purporting to be a copy of any entry in such register, or

(c) Produces or tenders or causes to be produced or tendered as evidence any such entry or writing, knowing the same to be false.

Shall be punishable with imprisonment which may extend to one year, or with fine, or with both.

Section 68. Penalty for making false statements for the purpose of deceiving or influencing any authority or officer

-Any person who -

(a) With a view to deceiving any authority or officer in the execution of the provisions of this Act, or

(b) With a view to procuring or influencing the doing or omission of anything in relation to this act or any matter there under , makes a false statement or representation knowing the same to be false , shall be punishable with imprisonment which may extend to one year, or with fine, or with both.

Section 68-A. Penalty for contravention of Section 52-A.

Any person who publishes a [(Note: Subs. by Act 38 of 1994, S.2 (xii) (w.e.f. a date to be notified)) sound recording] or a video film in contravention of the provisions of Section 52-A shall be punishable with imprisonment which may extend to three years and shall also be liable to fine.]

Section 69. Offences by companies

(1) Where any offence under this Act has been committed by a company, every person who at the time the offence was committed was 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 such offence and shall be liable to be proceeded against and punished accordingly.

Provided that nothing contained in this sub section shall render any person liable to nay punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(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 negligence 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 persons, and

(b) “Director” in relation to a firm means a partner in the firm.

Section 70. Cognizance of offences

No court inferior to that of [(Note: Subs. for “a Presidency Magistrate or a Magistrate of the first class” by Act 23 of 1983, S.22 (w.e.f. 9-8-1984)) a Metropolitan Magistrate or Judicial Magistrate of the first class] shall try any offence under this Act.

CHAPTER XIV – Appeals

Section 71. Appeals against certain orders of Magistrate

Any person aggrieved by an order made under sub section (2) of Section 64 or Section 66 may, within thirty days of the date of such order, appeal to the court to which appeals from the court making he order ordinarily lie, and such appellate court may direct that execution of the order be stayed pending disposal of the appeal.

Section 72. Appeals against orders of Registrar of Copyrights and Copyright Board

(1) Any person aggrieved by any final decision or order of the Registrar of Copyrights may, within three months from the date of the order or decision, appeal to the Copyright Board.

(2) Any person aggrieved by any final decision or order of the Copyright Broad, not being a decision or order made in an appeal under sub section (1), may within three months from the date of such decision or order, appeal to the High Court within whose jurisdiction the appellant actually and voluntarily resides or carries on business or personally works for gain.

Provided that no such appeal shall lie against a decision of the Copyright Board under Section 6.

(3) In calculating the period of three months provided for an appeal under this section, the time taken in granting a certified copy of the order or record of the decision appealed against shall be excluded.

Section 73. Procedure for appeals

This High Court may make rules consistent with this Act as to the procedure to be followed in respect of appeals made to it under Section 72.

CHAPTER XV – Miscellaneous

Section 74. Registrar of Copyrights and Copyright Board to possess certain powers of civil courts

The Registrar of Copyright and the Copyright Board shall have the powers of a civil court when trying a suit under the Code of Civil Procedure, 1908 ( 5 of 1908) in respect of the following matters, namely :-

(a) Summoning and enforcing the attendance of any person and examining him and oath :

(b) Requiring the discovery and production of any document

(d) Issuing commissions for the examinations of witnesses or documents :

(e) Requisitioning any public record or copy thereof from any court or office :

(f) Any other matter which may be prescribed.

Explanation – For the purpose of enforcing the attendance of witnesses, the local limits of the jurisdiction of the Registrar of Copyrights or the Copyrights Board, as the case may be, shall be the limits of the territory of India.

Section 75. Orders for payment of money passed by Registrar of Copyrights and Copyright Broad to be executable as a decree

Every order made by the Registrar of Copyrights or the Copyright Board under this Act for the payment of any money or by the High Court in any appeal against any such order of the Copyright Board shall, on a certificate issued by the Registrar of Copyrights, the Copyright Board or the Registrar of the High Court, as the case may be, de deemed to be a decree of a civil court and shall be executable in he same manner as a decree of such court.

Section 76. Protection of action taken in good faith

No suit or other legal proceeding shall lie against any person in respect of anything which is in good faith done or intended to be done in pursuance of this Act.

Section 77. Certain persons to be public servants

Every officer appointed under this Act and every member of the Copyright Broad shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code (45 of 1860).

Section 78. Power to make rules

(1) The Central Government may, by notification in the Official Gazette, make rules (Note: For the Copyright Rules,1958, see. Gazette of India, Extraordinary, Part II, Section 3, p.167) for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, the Central Government may make rules to provide for all or any of the following matters, namely –

(a) The term of office and conditions of service of the Chairman and other members of the Copyright Broad

(b) The form of complaints and applications to be made, and the licence to be granted under this Act,

(ca) [(Note: Ins. by Act 38 of 1994, S.24 (w.e.f. a date to be notified)) the conditions for submission of application under sub section (2) of Section 33,

(cb) The conditions subjects to which a copyright society may be registered under sub section (3) of Section 33.

(cc) The inquiry for cancellation of registration under sub section (4) of Section 33

(cd) The conditions subject to which the copyright society may accept authroisation under clause (a) of sub section (1) of Section 34 and the conditions subject to which owners of rights have right to withdraw such authorisation under clause (d) of that sub section.

(ce) The manner in which the approval of the owners of rights regarding collection and distribution of fees, approval for utilization of any amount collected as fees and to provide to such owners information concerning activities in relation to the administration of their rights under sub section (1) of Section 36.

(cf) The manner in which the approval of the owners of rights regarding collection and distribution of fees, approval for utilisation of any amount collected as fees and to provide to such owners information concerning activities in relation to the administration of their rights under sub-section (1) of Section 35;

(cg) The returns to be filed by copyright societies to the Registrar of Copyrights under sub-section (1) of Section 36;]

(d) The manner of determining any royalties payable under this Act, and the security to be taken for the payment of such royalties;

(da) [(Note: Ins. by Act 38 of 1994, S.24 (w.e.f. a date to be notified)) The manner of payment of royalty under clause (j) of sub-section (1) of Section 52;

(db) The form and the manner in which the copyright society shall maintain accounts and other relevant records and prepare annual statements of accounts and the manner in which the quantum of remuneration is to be paid to individual owner of rights under sub section (I) of Section 52-B.]

(e) The form of Register of Copyrights to be kept under this Act and the particulars to be entered therein.

(f) The matters in respect of which the Registrar of Copyrights and the Copyright Board shall have powers of a civil court.

(g) The fees which may be payable under this Act.

(h) The regulation of business of the Copyright Office and of all things by this Act placed under the direction or control of the Registrar of Copyrights.

(3) [(Note: Subs. for sub-section 3 by Act 23 of 1983, Section 23 (w.e.f. 9-8-1984)) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session , for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should 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 such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]

Section 79. Repeals, savings and transitional provisions

(1) The Indian Copyright Act, 1914 (3 of 1914), and the Copyright Act of 1911 passed by the Parliament of the Untied Kingdom as modified in its application to India by the Indian Copyright Act, 1914, are hereby repealed.

(2) Where nay person has , before the commencement of this Act, taken any action whereby he has incurred and expenditure or liabilities in connection with the reproduction or performance of any work in a manner which at the time was lawful or for the purpose of or with a view to the reproduction or performance of a work at a time when such reproduction or performance would, bur for the coming into force of this Act, have been lawful, nothing in this section shall diminish or prejudice any rights or interest arising from or in connection with such action which are subsisting and valuable at the said date, unless the person who, by virtue of this Act, becomes entitled to restrain such reproduction or performance agrees to pay such compensation as, failing agreement, may be determined by the Copyright Board.

(3) Copyright shall not subsist by virtue of this Act in any work in which copyright did not subsist immediately before the commencement of this Act under any Act repealed by sub section (1).

(4) Where copyright subsisted in any work immediately before the commencement of this Act, the rights comprising such copyright such copyright shall, as form the date of such commencement, e the rights specified in Section 14 in relation to the class of works to which such work belongs, and where any new rights are conferred by that section, the owner of such rights shall be-

(a) In any case where copyright in the work was wholly assigned before the commencement of this Act, the assignee or his successor-in-interest.

(b) In any other case, the person who was first owner of the copyright in the work under any Act repealed by sub section (1) or his legal representatives.

(5) Except as otherwise provided in this Act, where any person is entitled immediately before the commencement of this Act to copyright in any work or any right in such copyright or to an interest in any such right, he shall continue to be entitled to such right or interest for the period which he would have been entitled thereto if this Act and come into force.

(6) Nothing contained in this Act shall be deemed to render any act done before its commencement an infringement of copyright if that act would not otherwise have constituted such an infringement.

(7) Save as otherwise provided in this section, nothing in this section shall be deemed to affect the application of the General Clause Act, 1897 (10 of 1897), with respect to the effect of repeals.

Rules

CHAPTER I – Preliminary

1. Short title, extent and commencement -

(Note: Published in the Gazette of India, Extraordinary, 1958, Pt. II, S.3m p.167.) S.R.O. 270, dated the 21st January, 1858. – In excercise of the powers conferred by Section 78 of the Copyright Act, 1857 (14 of 1957) the Central Government hereby makes the following rules, namely -

1. Short title, extent and commencement - (1) These rules may be called the Copyright Rules, 1958.

(2) They extend to the whole of India.

(3) They shall come into force on the date on which the Act comes into quires, -

2. Interpretations -

In these rules, unless the context otherwise requires, -

(a) “Act” means the Copyright Act, 1957 (14 of 1957);

(b) “Form” means a form set out in the First Schedule;

(d) “Section” means a section of the Act.

CHAPTER II – The Copyright Board

3. Terms and conditions of office of the Chairman and members of the Copyright Board -

(1) The Chairman and other members of the Copyright Board shall be appointed for such period not exceeding five years as the Central Government may in each case deem fit .

(2) The Chairman and other members of the Copyright Board shall, on the expiry of the period of their appointment, be eligible for reappointment.

(3) The Chairman or any other member of the Copyright Board may resign his office by giving three months notice in writing to the Central Government.

(4) The Chairman or any other member of the Copyright Board shall be paid such salary or honorarium as may be determined by the Central Government in each case.

(5) A non-official appointed as the Chairman or other member of the Copyright Board shall be entitled to traveling allowances for journeys performed on duty and to daily allowances for the period spent on duty on the scale provided in the rules applicable to the class of officers to which the Central Government may declare him to correspond in status:

Provided that it shall be competent for the Central Government to provide a different scale of such allowances if the circumstances of any case so require.

(6) An official appointed as the chairman or other member of the Copyright Board shall be entitled to such traveling allowances for journeys performed on duty and to such daily allowances for the period spent on duty as may be admissible to him as such official.

(7) The other conditions of service of the Chairman and other members of the Copyright Board shall be regulated by orders made in that behalf by the Central Government from time to time.

4. Functions of the Secretary of the Copyright Board -

The Registrar or Copyrights shall perform all secretarial functions relating to the Copyright Board under the direction and control of the Chairman of the Copyright Board.

CHAPTER III – Relinquishment of Copyright

5. Notice of relinquishment -

The author of a work desiring to relinquish under Section 21 all or any of the rights comprised in the copyright in the work shall give notice to the Registrar of Copyrights in accordance with Form I.

CHAPTER IV – Licences for Translations

6. Application for licence -

(1) An application for a licence under Section 32 to produce and publish a translation of a literary or dramatic work in any language shall be made in triplicate in accordance with Form II and shall be accompanied by the fee prescribed in the Second Schedule.

(2) Every such application shall be in respect of one work only and for translation of that work into one language only.

7. Notice of application -

(1) When any such application has been made, the Copyright Board shall, as soon as possible, give notice of the application in the official Gazette and also, if the Copyright Board thinks fit, in one or two newspapers and shall send a copy of the notice to the owner of the copyright, wherever practicable.

(2) Every such notice shall contain the following particulars:-

(a) The date of the application;

(b) The name, address and nationality of the applicant;

(d) The date and country of the first publication of the work;

(e) The name, address and nationality of the owner of the copyright as stated in the application;

(f) The language in which the work is to be translated; and

(g) The Registration Number of the work in the Register of Copyrights, if any.

8. Consideration of the application -

(1) The Copyright Board shall consider the application after the expiry of not less than one hundred and twenty days from the date of the publication of the notice in the official Gazette.

(2) The Copyright Board shall give an opportunity to the applicant and also, wherever practicable, to any person claiming any interest in the copyright of the work, to be heard and may take such evidence in respect of the application as it thinks fit.

(3) If more than one application for translation of the work in the same language is pending before the Copyright Board at the expiry of one hundred and twenty days after the publication in the official Gazette of the notice of the application first received, all such applications shall be considered together.

(4) If the Copyright Board is satisfied that the licence for a translation of the work in the language applied for may be granted to the applicant, or, if there are more applicants than one, to such one of the applicants as, in the opinion of the Copyright Board, would best serve the interests of the general public, it shall grant a licence accordingly.

(5) Every such licence shall be subject to the condition provided in subsection (4) of Section 32 relating to the payment of royalties and shall specify -

(a) The period within which the translation shall be produced and published;

(b) The language in which the translation shall be produced and published;

(c) The rate at which royalties in respect of the copies of the translation of the work sold to the public shall be paid to the owner of the copyright in the work; and

(d) The person or persons to whom such royalties shall be payable.

(6) The grant of every such licence shall, as soon as possible, be notified in the official Gazette and in the newspapers, if any, in which the notice under Rule 7 was published and a copy of the lincence shall be sent to the other parties concerned.

9. Manner of determining royalties -

The Copyright Board shall determine the royalties payable to the owner of the copyright under subsection (4) of Section 32 after taking into consideration -

(a) The proposed retail price of a copy of the translation of the work;

(b) The prevailing standards of royalties in regard to translation of works; and

10. Extension of the period of licence -

The Copyright Board may, on the application of the licensee and after notice to the owner of the copyright, wherever practicable, if it is satisfied that the licensee was for sufficient reasons unable to produce and publish the translation within the period specified in the licence, extend such period.

11. Cancellation of licence -

The Copyright Board may, after giving the licensee an opportunity of being beard, cancel the licence on any of the following grounds, namely:-

(a) That the licensee has failed to produce and publish the translation within the time specified in the licence or within the time extended on the application of the licensee;

(b) That the licence was obtained by fraud or misrepresentation as to any essential fact;

CHAPTER IV A – Compulsory Licence for Publication of Unpublished Works, Translation and Reproduction of Work

11-A. Application for licence -

An application for a licence under Section 31-A, sub-section (I-A) of Section 32 and Section 32-A to publish any unpublished work or to translate any work in any language or to reproduce any published work shall be made in triplicate in accordance with Form II-A and shall be accompanied by the fee prescribed in the Second Schedule.

11-B.

Every such application shall be in respect of one work only and in respect of translation of a work into one language only.

11-C. Notice of application -

(1) A copy of such application shall be served by registered mail on the owner of copyright and if the owner of such copyright is not known or is not traceable, a copy of the application shall be served on the publisher whose name appears on the work.

(3) If more than one application for translation of the work in the same language or for reproduction of the work or for publication of any unpublished work is pending before the Copyright Board, all such applications shall be considered together.

(4) If the Copyright Board is satisfied that the licence for a translation of the work in the language or for reproduction of the work or for publication of unpublished work, applied for may be granted to the applicant, or if there are more applicants than one, to such one of the applicants, as in the opinion of the Copyright Board, would best serve the interests of the general public, it shall grant a licence accordingly.

(5) Every such licence shall be subject to the conditions provided in sub-section (7) of Section 31-A, clause (i) of sub-section (4) of Section 32 and clause (i) of sub-section (4) of Section 32-A relating to payment of royalties and shall specify:-

(a) The period within which such work shall be published;

(b) The rate at which royalties in respect of the copies of such work sold to the public shall be paid to the owner of the copyright in the work;

(d) The person or persons to whom such royalties shall be payable.

(6) The grant of every such licence shall, as soon as possible, be notified in the official Gazette and a copy of the licence shall be sent to the other parties concerned.

11-D. Manner of determining royalties -

The Copyright Board shall determine the royalties payable to the owner of the copyright under sub-section (7) of Section 31-A, clause (i) of sub-section (4) of Section 32 and clause (i) of sub-section (4) of Section 32-A after taking consideration:

(a) The proposed retail price of a copy of such work;

(b) The prevailing standards of royalties in regard to such works; and

11-E. Extension of the period of licence -

The Copyright Board may, on the application of the licensee and after notice to the owner of the copyright, wherever practicable, if it is satisfied that the licensee was for sufficient reasons unable to produce and publish the translation or reproduce the work or publish the unpublished work within the period specified in the licence, extend such period.

11-F. Cancellation of licence -

The Copyright Board may, after giving the licensee an opportunity of being heard, cancel the licence on any of the following grounds, namely :-

(a) That the licensee has failed to produce and publish such work within the time specified in the licence or within the time extended on the application of the licensee;

(b) That the licence was obtained by fraud or misrepresentation as to any essential fact;

11-G. Notice for termination of licence -

Notice for termination of licence under proviso to sub-section (1) or sub-section (2) of Section 32-B shall be served onthe person holding the licence by the owner of copyright in Form II-B of the First Schedule to these rules.]

CHAPTER V – Performing Rights Societies

12. Publication of statement of fees etc. -

(1) Every performing rights society having at the commencement of the Act authority to grant licences for performance in public of any works shall, within three months of the commencement of the Act or within such further period as the Registrar of Copyrights may, for sufficient reasons, allow in respect of any such society on an application made by it in this behalf, prepare and publish, as its own cost, in the official Gazette and in two newspapers in the English language published in two different zones, the statements of all fees, charges or royalties which it proposes to collect for the grant of such licences.

(2) Every performing rights society shall, within one month of its acquiring after the commencement of the Act the authority to grant licences for performance in public of any works or within such further period as the Registrar of Copyrights may, for sufficient reasons, allow in respect of any such society on an a pplication made by it in this behalf, prepare and publish, as its own cost, in the official Gazette, and in two newspapers in the English language published in two different zones, the statements of all fees, charges or royalties which it proposes to collect for the grant of such licences.

(3) Every performing rights society shall file with the Registrar of Copyrights two copies of the statements prepared under sub-rule (1) of sub-rule (2) Within the time specified therein, together with two copies of each of the newspapers in which statements have been published.

Explanation – In this rule “Zone” shall have the same meaning as in Section 12.

13. Determination of objections -

The Copyright Board may take such evidence as it deems fit in determining any objection lodged under Section 34.

14. Publication of alterations in the statements of fees etc. -

The Registrar of Copyrights shall publish the alterations made by the Copyright Board in the statements of fees, charges or royalties in the official Gazette and in the two newspapers in which the original statements were published under Rule 12 or in such other newspapers as he may deem fit.

CHAPTER VI – Registration of Copyright

15. Form of Register of Copyrights -

(1) The Register of Copyrights shall be kept in four parts as follows:-

Part I. Literary, Dramatic and Musicial Works.

Part II. Artistic Works.

Part III. Cinematograph Films.

Part IV. Records.

(2) The Register of Copyrights shall contain the particulars specified in Form III.

16. Application for Registration of Copyright -

(1) Every application for registration of copyright shall be made in accordance with Form IV and every application for registration of changes in the particulars of copyright entered in the Register of Copyrights shall be made in accordance with Form V.

(2) Every such application shall be in respect of one work only, shall be made in triplicate and shall be accompanied by the fee specified in the Second Schedule in this behalf.

(3) [(Note: Subs. by Noti. No. GSR 435(E), dt. 27-4-1992 (w.e.f. 27-4-1992) The person applying for registration shall give notice of his application to every person who claims or has any interest in the subject matter of the copyright or disputes the rights of the applicant to it.]

(4) If no objection to such registration is received by the Registrar of Copyrights within thirty days of the receipt of the application by him, he shall, if satisfied about the correctness of the particulars given in the application, enter such particulars in the Register of Copyrights.

(5) If the Registrar of Copyright receives any objections for such registration within the time specified in sub-rule (4), or, if he is not satisfied about the correctness of the particulars given in the application, he may, after holding such inquiry as he deems fit, enter such particulars of the work in the Register of Copyrights as he considers proper.

(6) The Registrar of Copyrights shall, as soon as may be, send, wherever practicable, a copy of the entries made in the Register of Copyrights to the parties concerned.

17. Correction of entries in the Register of Copyrights -

The Registrar of Copyrights may, on his own motion or on application of any interested person, amend or alter the Register of Copyrights in the manner specified in Section 49 after giving, wherever practicable, to the person affected by such amendment or alteration, an opportunity to show cause against such amendment or alteration and communicate to such person the amendment or alteration made.

18. Indexes -

(1) There shall be kept at the Copyright Office the following indexes for each part of the Register of Copyrights, namely -

(i) A general Author Index;

(ii) A general Title Index;

(iii) An Author Index of works in each language; and

(iv) A Title Index of works in each language.

(2) Every index shall be arranged alphabetically in the form of cards.

19. Inspection of the Register of Copyrights and Indexes -

The Register of Copyrights and Indexes thereof shall at all reasonable times be open to inspection by any person in such manner and subject to such conditions as the Registrar of Copyrights may specify.

20. Copies and extracts of the Register of Copyrights and Indexes -

(1) Any person shall be entitled to take copies of, or make extracts from, the Register of Copyrights or Indexes on payment of the fee specified in the Second Schedule subject to such supervision as the Registrar of Copyrights may arrange.

(2) The Registrar of Copyrights shall, on an application made in that behalf and on payment of the fee specified in the Second Schedule, furnish a certified copy of any entries made in the Register of Copyrights and Indexes thereof.

CHAPTER VII – Making of Records

21. Making of records -

(1) Any person intending to make records under clause (j) of sub-section (1) of Section 52 shall give notice of such intention to the owner of the copyright and to the Copyright Board at least [(Note: Subs. by G.S.R. 267, dated 22-4-1958) fifteen days] in advance of the making of the records and shall pay to the owner of the copyright, along with the notice, the amount of royalties due in respect of all the records to be made at the rate fixed by the Copyright Board in this behalf.

(2) Such notice shall contain the following information, namely:-

(a) The particulars of the work in respect of which records are to be made;

(b) Alterations and omissions, if any, which are proposed to be made for the adaptation of the work to the records;

(d) Particulars of the records made previously recording the work;

(e) The number of records intended to be made; and

(f) The amount paid to the owner of the copyright in the work by way of royalties and the manner of payment.

CHAPTER VIII – Importation of Infringing Copies

22. Importation of infringing copies -

Every application under sub-section (1) of Section 53 shall be made in accordance with Form VI and shall be accompanied by the fee specified in the Second schedule.

23. Procedure for examination of infringing copies -

The Registrar of Copyrights or the person authorised by him in this behalf shall, in taking action under sub-section (2) of Section 53, act in collaboration with Customs authorities.

CHAPTER IX – Miscellaneous

24. Mode of making applications etc. -

Every application, notice, statement or any other document to be made, given, filed, or sent under the Act or under these Rules may, unless otherwise directed by the authority concerned, be sent by hand or pre-paid registered post.

25. Mode of communication by the Copyright Board etc. -

Every written intimation from the Copyright Board, the Copyright Office or the Registrar of Copyrights shall be deemed to have been duly communicated to any person if such intimation is sent to the known address of such person by pre-padi registered post.

26. Fees. -

(1) The fees payable under the Act in respect of any matter shall be as specified in the Second Schedule.

(2) The fees may be paid to the Registrar of Copyrights, New Delhi, by a postal order or a bank draft issued by a Scheduled Bank as defined in the Reserve Bank of India Act, 1934, or by deposit into a Government Treasury or a branch of the Reserve Bank of India or the State Bank of India under the head of account : Major Head – ‘XLVI – Miscellaneous’. Minor Head ‘Naturalization, Passport and Copyright Fees’.

(3) Postal orders and bank drafts shall be crossed and draw able in New Delhi.

(4) Payment by bank drafts shall not be valid unless the amount of bank commission is included therein.

(5) Where payment is made by deposit in a Government Treasury or a branch of the Reserve Bank of India or the State Bank of India, the challan evidencing the payment shall be sent to the authority concerned by pre-paid registered post.

27. Right of audience. -

In any proceedings before the Copyright Board or the Registrar of Copyrights any party may appear and be heard either in person or by a pleader or other person duly authorised by such party.

28. Costs -

The costs of, and incidental to, the proceedings before the Copyright Board or the Registrar or Copyrights shall be in the discretion of the Copyright Board or the Registrar of Copyrights, as the case may be:-

FIRST SCHEDULE

FORM I – Notice of relinquishment of Copyright

(See Rule 5)

The Registrar of Copyrights, Copyright Office, New Delhi.

Sir,

In accordance with Section 21 of the Copyright Act, 1957 (14 of 1957), I hereby give notice that, with effect from the dae of this notice, I do relinquish, to the extent specified in the enclosed affidavit, my rights in the work described in the said affidavit.

Yours faithfully,

(Signature)

Place:

Date:

Form of Affidavit referred to above I, …………………………………………………of…………………………… (full name in block letters)

…………………………………………………………………………………….. do hereby one (address) solemn affirmation state that:

(1) I am the author of the work described in the Statement below;

(2) I am the owner of the copyright in the said work to the extent specified in the said Statement; and

(3) I do hereby relinquish my rights in the said work to the extent specified in the said Statement

1. Description of the Work:

(a) Class of the work (Literary, Dramatic, Musical, Artistic, Cinematograph Film, Record).

(b) Title of the work.

(d) Language of the work.

(e) Name, address and nationality of the publisher.

(f) Year of first publication.

If the work has appeared as a serial or otherwise in a journal or magazine, give the name of the journal or magazine, the volume number of the issue, the date and page reference.

(g) Country of first publication.

(h) If the copyright in the work is registered under Section 45, the Registration Number.

2. Rights owned by the deponent on the date of the affidavit. (If the rights are owned jointly with others, state names, address and nationalities of the joint owners.)

3. Extent to which rights are relinquished.

4. Reasons for relinquishment of the rights. (The information given here will be kept strictly confidential.)

5. Remarks if any.

Place:

Date:

Signature

Solemnly affirmed before me by ______________________ who is know to me (name of deponent in block letters) personally/who is identified to me by _______________________ who is known to me personally. (name of identifier in block letters)

Place:

Date:

Signature and seal of the Magistrate.

FORM II – Application for a licence for translation

(See Rule 6)

(To be submitted in triplicate)

The Registrar of Copyrights,

Secretary, Copyright Board,

New Delhi.

Sir,

In accordance with Section 32 of the Copyright Act, 1957 (14 of 1957), I hereby apply to the Copyright Board for a licence to produce and publish a translation of the work in accordance with the particulars given in the enclosed Statement.

2. I hereby undertake to abide strictly by the terms and comditions of the licence, if granted to me.

Yours faithfully,

Signature

Place:

Date:

1. Full name of the applicant. (in block letters)

2. Full address and nationality of the applicant.

3. Telegraphic address, if any.

4. Description of the work:

(a) Class of the work (Literary, Dramatic, Musical, Artistic, Cinematograph Film, Record).

(b) Title of the work.

(d) Language of the work.

(e) Name, address and nationality of the publisher.

(f) Year of first publication.

(g) Country of first publication.

(h) Price of a copy of the work.

(i) If the copyright in the work is registered under Section 45, the Registration Number.

If the work has appeared as a serial or otherwise in a journal or magazine, give the name of the journal or magazine, give the name of the journal or magazine, the valume number of the issue, the date and the page reference.

5. Language into which the work is proposed to be translated.

6. Full name, qualifications and address of the translator.

7. Qualifications of the applicant to produce and publish the translation.

8. Number of copies of the translation proposed to be published.

9. Estimated cost of production and publication of the translation.

10. Proposed retail price per copy of the translation.

11. Rate of royalty, which the applicant considers reasonable, to be paid to the copyright owner.

12. Means of the applicant for payment of the royalty.

13. Whether the prescribed fee has been paid and if so, particulars of payment (give Postal Order/Bank Draft/Treasury Challan Number).

14. (a) Full name, address and nationality of the person competent to issue a licence for translation.

(b) Whether the applicant was able to find the said person.

(c) Whether the applicant had requested and had been denied authorisation by the said person to produce and publish the translation.

(d) If the applicant was unable to find the owner, whether he had sent a copy of the request for authorisation to the publisher. If so, the date on which the copy was sent.

Enclose true copies of correspondence, if any.

15. Whether the author of the work has withdrawn from circulation copies of the work.

16. (a) Whether a translation in the same language has been published before.

(b) Whether the earlier translation is out of print.

(c) Full name, address and nationality of the earlier translator and if the said translator is deceased, the date of his decease.

(d) Title of the earlier translation.

(e) Full name, address and nationality of the publisher of the earlier translation.

(f) Year of publication.

(g) Price per copy of the earlier translation.

(h) If the earlier translation is registered under Section 45, the Registration Number.

(i) Rate and amount of royalty paid to the copyright owner in respect of the earlier translation, if known.

17. (a) Whether translation has been made into any language other than the language stated in 5 above.

(b) Full name, address and nationality of the translator and if the said translator is deceased, the date of his decease.

(d) Language of the translation.

(e) Full name, addressand nationality of the publisher of the translation.

(f) Year of publication.

(g) Price per copy of the translation.

(h) If the translation is registered under Section 45, the Registration Number.

(i) Rate and amount of royalty paid to the copyright owner, if known.

18. Remarks, if any

19. List of enclosures.

Place:

Date:

II-A (Note: Form II-A and II-B ins. by Noti. No. G.S.R. 602(E), dt. 9-8-1984 (w.e.f. 9-8-1984) (1985 CCL-III-80).

- Application for a licence for publication/reproduction

(See Rule II-A)

(To be submitted in triplicate)

The Registrar of Copyrights,

Secretary, Copyright Board,

New Delhi

Sir,

In accordance with Section 31/32/32-A of the [(Note: Subs. for “Copyright (Amendment) Act, 1983 (23 of 1983)” by Noti. No. G.S.R. 435(E), dt. 27-4-1992 (w.e.f. 27-4-1992)) Copyright Act, 1957 (14 of 1957)], I hereby apply to the Copyright Board for a licence to publish an unpublished Indian work, or reproduce a published work or to translate a work in accordance with the particulars given in the enclosed Statement.

2. I hereby untertake to abide strictly by the terms and conditions of the licence, if granted to me.

3. I hereby verify that the particulars given in this form are true to the best my knowledge, belief and information and nothing has been concealed therefrom.

Place:

Date:

Yours faithfully,

(Signature)

1. Full name of the applicant ………………………………………………. (In block letters)

2. Full address and nationality of the applicant.

3. Telegraphic address, if any.

4. Description of the work:

(a) Class of the work (Literary, Dramatic, Musical, Artistic, Cinematograph Film, Record).

(b) Title of the work.

(d) Language of the work.

(e) Name, address and nationality of the publisher.

(f) Year of first and last publication.

(g) Country of first and last publication.

(h) Price of a copy of the work.

(i) If the copyright in the work is registered under Section 45, the Registration Number.

(If the work has appeared as a serial or otherwise in a journal or magazine, give the name of the journal or magazine, the valume number of the issue, the date and the page reference).

5. If the licence is applied for translation state:

(a) Language into which the work is proposed to be translated.

(b) Full name, qualifications and address of the translator.

6. Indicate the purpose for which the licence is required.

7. Number of copies of work proposed to be published under the licence applied for.

8. Estimated cost of the work to be published.

9. Proposed retail price per copy of the work.

10. Rate of royalty, which the applicant considers reasonable, to be paid to the copyright owner.

11. Means of the applicant forpayment of the royalty.

12. Whether the prescribed fee has been paid and if so, particulars of payment (give Postal Order/Bank Draft/Treasury Challan Number).

13. (a) Full name, address and nationality of the person cometent to issue a licence.

(b) Whether the applicant after due diligence on his part was unable to find the owner.

(c) Whether the applicant has requested and had been denied authorisation by the said person to produce and publish the translation or reproduce the work or publish the unpublished work.

(d) If the applicant has requested and had been denied authorisation by the said person to produce and publish the translation or reproduce the work or publish the unpublished work.

(Enclose true copies of correspondence, if any(.

14. Whether the author of the work has withdrawn from circulation copies of the work.

15. In case of application for translation furnish following additional information:-

(a) Whether a translation in the same language has been published before.

(b) Whether the earlier translation is out of print.

(c) Full name, address and nationality of the earlier translator and if the said translator is deceased, the date of his decease.

(d) Title of the earlier translation.

(e) Full name, address and nationality of the publisher of the earlier translation.

(f) Year of publication.

(g) Price per copy of the earlier translation.

(h) If the earlier translation is registered under Section 45, the Registration Number.

(i) Rate and amount of royalty paid to the copyright owner in respect of the earlier translation, if known.

16. (a) Whether translation has been made into any language other than the language stated in 5 above.

(b) Full name, address and nationality of the translator and if the said translator is deceased, the date of his decease.

(d) Language of the translation.

(e) Full name, address and nationality of the publisher of the translation.

(f) Year of publication.

(g) Price per copy of the translation.

(h) If the translation is registered under Section 45, the Registration Number.

(i) Rate and amount of royalty paid to the copyright owner, if known.

17. Remarks, if any.

18. List of enclosures.

Place:

Date:

(Signature)

FORM II-B

(See Rule II-G)

…………………………………………….
…………………………………………….
…………………………………………….

Sir,

[(Note: Subs. by Noti. No. G.S.R. 435(E), dt. 27-4-1992 (w.e.f. 27-4-1992). In accordance with first proviso to sub-section (1) ro the first proviso to sub-section (2) of Section 32-B of the Copyright Act, 1957 (14 of 1957)], I hereby give notice, that copies of translation/reproduction of the work given below (mention language) have been published by me/under my authorization.

Place:

Date:

Yours faithfully,

(Signature)

1. Title of the work.

2. Name of address of the owner of copyright.

3. Year and country of first publication and name, address and nationality of the publisher.

4. Name and address of the author who has translated the work.

5. Name and address of the publisher and year in which the translation has been published in India.

6. Name and address of the publisher and year in which the reproduction of the work has been published in India.

7. Retail price of the published work.

FORM III – Form of Register of Copyrights

(See Rule 15)

1. Registration Number.

2. Name, address and nationality of the applicant.

3. Nature of the applicant’s interest in the copyright of the work.

4. Class and description of the work.

5. Title of the work.

6. Language of the work.

7. Name, address and nationality of the author and if the author is deceased, the date of his decease.

8. Whether work is pubished or unpublished.

9. Year and country of first publication and namee, address and nationality of the publisher.

10. Years and countries of subsequent publications, if any, and names, address and nationalities of the publishers.

11. Names, address and nationalities of the owners of the various rights comprising the copyright in the work and the extent of rights held by each, together with particulars of assignments and licences, if any.

12. Names, addresses and nationalities of other persons, if any, authorised to assign or licence the rights comprising the copyright.

13. If the work is an ‘Artistic Work’, the location of the original work, including name, address and nationality of the person in possession of it. (In the case of an architectural work, the year of completion of the work should also be shown).

14. Remarks, if any

FORM IV – Application for Registration of Copyright

(See Rule 16)

The Registrar of Copyrights,

New Delhi

Sir,

In accrodance with Section 45 of the Copyright Act, 1957 (14 of 1957), I hereby apply for registration of copyright and request that entries may be made in the Register of Copyrights as in the enclosed Statement of Particulars sent herewith in triplicate.

I also send herewith Rule 16 of the Copyright Rules, 1958, I have sent by prepaid registered post copies of this letter and of the enclosed Statement (s) to the other parties concerned, as shown below:-

Names and addresses of parties	Date of despatch

*See Columns 7,11,12 and 13 of the Register of Copyrights.

3. The prescribed fee has been paid, as per details below:-

4. Communications on this subject may be addressed to:-

[(Note: Ins. by Noti. No. 435(E), dt. 27-4-1992 (w.e.f. 27-4-1992)) I hereby declare that, to the best of my knowledge and belief, no person other than to whom a notice has been sent as per paragraph 2, has any claim, interest or dispute to my copyright of this work, or to its use by me.]

[(Note: Ins. by Noti. No. GSR 602(E), dt. 9-8-1984 (w.e.f. 9-8-1984)) (Note: Para 4-A renumbered as para 6 by Noti. No. 435(E), dt. 27-4-1992 (w.e.f. 27-4-1992)) I hereby verify that the particulars given in this form and the Statement of Particulars are true to the best of my knowledge, belief and information and nothing has been concealed therefrom.]

Yours faithfully,

Place:

Date:

Statement of Particulars

1. Registration Number in the Register of Copyrights.

2. Changes sought in the particulars of copyright as entered in the Register of Copyrights.

Reference to Column Number of the Register of Copyrights

Existing enty in the Register of Copyrights

Proposed entry in place of the existing entry in the Register of Copyrights

Reasons for the changes proposed

(2) The works which are being imported in accordance with the particulars in the said Statement are infringing copies of the work described in the said Statement; and

(3) I am interested in the prevention of importation of the said infringing copies for the following reasons :- (State reasons)

(4) The infringing copies are not being imported for the private and domestic use of the importer. Statement

A. – Particulars of the Work and Rights held.

1. Full name, address and nationality of the applicant.

2. Telegraphic address of the applicant.

3. If the applicant is not the owner of the copyright, full name, address and nationality of the owner of the copyright.

4. Description of the work :-

(a) Class of the work (Literary, Dramatic, Musical, Artistic, Cinematograph Film, Record).

(b) Title of the work.

(d) Language of the work.

(e) Name and address of the publisher.

(f) Year of first publication.

(g) Country of first publication.

(h) If the copyright in the work is registered under Section 45, the Registration Number.

If the work was appeared as a serial or otherwise in a journal or magazine, give the name of the journal or magazine, the volume number of the issue, the date and page reference.

B. Details of import of infringing copies.

1. Country of origin of the infringing copies.

2. Name, address and nationality of the importer in India.

3. Name, address and nationality of the maker of the infringing copies.

4. Expected time and place of import of the infringing copies into India.

5. In case a consignment of the infringing copies is detected and detained, will the applicant be prepared to go himself or depute an authorised agent to identify the said copies to the satisfaction of the Registrar of Copyrights.

C. Any other relevant information not covered above.

Place:

Date:

Solemnly affirmed before me by ……………………………………………………………………………………. (full name of deponent in block letters)

Who is known to me personally/who is identified to me by ……………………………………………………………………………………………

(name of identifier in block letters) who is known to me personally.

Place:

Date:

Signature and seal of the Magistrate.

SECOND SCHEDULE

(Note: Subs. by Noti. No. GSR 602(E), dated 9-8-1984 (w.e.f. 9-8-1984) (1985 CCL-III-80)).

“SECOND SCHEDULE”


	For a licenceto republish a Literary, Dramatic, Musical or Artistic d Work (Sections 31, 31-A and 32-A)	Rs. 100 per work
	For a licence to republish a Cinematograph Film (Section 31)	Rs. 500 per work
	For a licence to republish a Record (Section 31)	Rs. 200 per work
	For licence to perform an Indian work in public or to communicate the work tothe public by Broadcast (Section 31)	Rs. 25 per work
	For an application for a licence to produce and publish a translation of a Literary or Dramatic Work in any language (Section 32 and 312 (I-A))	Rs. 100 per work
	For an application for registration of copyright in a -(a) Literary, Dramatic, Musical or Artistic Work.(b) Provided that in respect of a Literary or Artistic Work which is used or capable of being used in relation to any goods (Section 45)	Rs. 10 per workRs. 50 per work
	For an application for changes in particulars of copyright entered in the Register of Copyrights an respect of a :(a) Literary, Dramatic, Musical or Artistic Work.(b) Provided that in respect of a Literary or Artistic Work which is used or capable of being used in relation to any goods (Section 45).	Rs. 5 per workRs. 25 per work
	For an application for registration of copyright in a Cinematograph Film (Section 45).	Rs. 200 per work
	For an application for registration of changes in particulars of copyright entered in the Register of Copyrights in respect of Cinematograph Film (Section 45).	Rs. 100 per work
	For an application for registration of copyright in a Record (Section 45).	Rs. 50 per work
	For an application for registration of changes in particulars of copyright entered in the Register of Copyrights in respect of a Record (Section 45).	Rs. 25 per work
	For taking extracts from the Register of Copyrights (Section 47).	Rs. 5 per work per hour
	For taking extracts from the Indexes (Section 47).	Rs. 2.50 per work per hour
	For a certified copy of an extracts from the Register of Copyrights or the Indexes (Section 47).	Rs. 5 per copy
	For a certified copy of any other public document inthe custody of the Registrar of Copyrights or the Copyright Board.	Rs. 2.50 per page
	For an application for prevention of importation of infringing copies (Section 53).	Rs. 25 per work per place of entry.]

(Note: Vide Noti. No. S.O. 657(E), dated 30-9-1991, published in the Gezette of India, Extra., Pt. II,

Section 3(ii), dated 30-9-1991, pp. 5-8 [No. F.12-1/90-IC).

In exercise of the powers conferred by Section 40 of the Copyright Act, 1957 (14 of 1957), and in super session of the International Copyright Order, 1958, the Central Government hereby makes the following order :-

1. (1) This Order may be called the International Copyright Order, 1991.

(2) It shall come into force on the date of its publication in the Official Gazette.

2. In this Order, unless the context otherwise requires, -

(a) ‘Berne Convention Country’ means a country which is a member of the Berne Copyright Union, and includes a country mentioned either in Part I or in Part II of the Schedule ;

(b) ‘Phonograms Convention Country’ means a country which has either ratified, or accepted or acceded to the Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms, done at Geneva on the twenty-ninth day of October, one thousand nine hundred and seventy-one, and includes a country mentioned in Part V of the Schedule ;

(d) ‘Universal Copyright Convention Country’ means a country which has either ratified, or accepted or acceded to the Universal Copyright Convention, and includes a country mentioned either in Part III or in Part IV of the Schedule.

Explanation – ‘Phonogram’ means any exclusively aural fixation of sounds of a performance or other sounds.

3. Subject to the provisions of Paragraph 4, all the provisions of the Copyright Act, 1957 (14 of 1957) (hereinafter referred to as the Act), except those of Chapter VIII ; and those other provisions which apply exclusively to Indian works, shall apply, -

(a) To any work first made or published in a country mentioned in Part I, II, III or IV of the Schedule, in like manner as if it was first published in India;

(b) To any work first made or published in a country other than a country mentioned in Part I, II, III or IV of the Schedule, the author of which was, at the date of such publication, or, where the author was dead on that date, he was at the time of his death, a national of a country mentioned in Part I, II, III or IV of the Schedule, in like manner, as if the author was a citizen of India at that point of time;

(c) To an unpublished work, the author whereof was, at the time of the making or publication of the work, a national or domiciled in any country mentioned in Parts I, II, III or IV of the Schedule, in like manner, as if the author was a citizen of, or domiciled in India;

(d) To any work first made or published by a body corporate incorporated under any law of a country mentioned in Part I, II, III or IV of the Schedule, in like manner, as if it was incorporated under a law in force in India; and

(e) To a record first made, the producer of which was, at the date of such production, a national of a country mentioned in Part V of the Schedule or a body corporate incorporated under a law in force in such a country, in like manner as if the producer was the citizen of India; or a body corporate incorporated under a law in force in India, as the case may be, at that point of time.

Explanation – ‘Record’ means any disc, tape, perforated roll or other device in which sounds are embodied so as to be capable of being reproduced therefrom, other than a sound-track associated with a cinematograph film.

4. Notwithstanding anything contained in Paragraph 3(a), the provisions of sub-section (1) of Section 32 of the Act -

(i) Shall not apply to a work first made or published in any Berne Convention Country mentioned in Part I or II of the Schedule ; and

(ii) Shall apply to a work first made or published in any Universal Copyright Convention Country mentioned in Part III or IV of the Schedule, only in respect of the translation of such work into any language specified in the Eighth Schedule to the Constitution of India.

5. The provisions of Section 32 [excluding its sub-section (1)], 32-A and 32-B shall apply to a work first made or published in a Berne Convention Country mentioned in Part I of the Schedule or in a Universal Copyright Convention Country mentioned in Part III of the Schedule.

6. The term of copyright in a work shall not exceed that which is enjoyed by it in its country of origin.

Explanation – In this paragraph, “the country of origin” shall mean -

(a) In this case of a work first made or published in a Berne Convention Country or a Universal Copyright Convention Country, that country;

(b) In the case of a work made or published simultaneously either in a Berne Convention Country or a Universal Copyright Convention Country and in a country which is neither a Berne Convention Country nor a Universal Copyright Convention Country, the former country;

(c) In the case of a work which is made or published simultaneously in several Universal Copyright Convention Countries, the country whose laws grant the shortest term of copyright to such a work ;

(d) In the case of a work which is made or published simultaneously in several Universal Copyright Convention Counties, the country whose laws grant the shortest term of copyright to such a work ;

(e) In the case of an unpublished work or a work first made or published in a country other than a Berne Convention Country or a Universal Copyright Convention Country, the country of which the author was a citizen, or the country in which he was domiciled at the time of its first publication, whichever grants the longer term of copyright.

7. The provisions of the International Copyright Order, 1958 shall cease to have effect from the date his Order comes into force.

Electricity Act

November 30, 2014

Part I – Preliminary

[No. 36 of 2003]

[26 May, 2003]

An Act to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalisation of electricity tariff, ensuring transparent policies regarding subsidies, promotion of efficient and environmentally benign policies constitution of Central Electricity Authority, Regulatory Commissions and establishment of Appellate Tribunal and for matters connected therewith or incidental thereto.

Be it enacted by Parliament in the Fifty- fourth Year of the Republic of India as follows: -

Section 1. Short title, extent and commencement

(1) This Act may be called the Electricity Act, 2003.

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

(3) It shall come into force on such date as the Central Government may, by notification, appoint:

Section 2. Definitions

In this Act, unless the context otherwise requires,

(1) “Appellate Tribunal” means the Appellate Tribunal for Electricity established under section 110;

(2) “appointed date” means such date as the Central Government may, by notification, appoint;

(3) “area of supply” means the area within which a distribution licensee is authorised by his licence to supply electricity;

(4) “Appropriate Commission” means the Central Regulatory Commission referred to in sub-section (1) of section 76 or the State Regulatory Commission referred to in section 82 or the Joint Commission referred to in section 83, as the case may be ;

(5) “Appropriate Government” means, -

(a) the Central Government, -

(i) in respect of a generating company wholly or partly owned by it;

(ii) in relation to any inter-State generation, transmission, trading or supply of electricity and with respect to any mines, oil-fields, railways, national highways, airports, telegraphs, broadcasting stations and any works of defence, dockyard, nuclear power installations;

(iii) in respect of National Load Despatch Centre; and Regional Load Despatch Centre;

(iv) in relation to any works or electric installation belonging to it or under its control ;

(b) in any other case, the State Government, having jurisdiction under this Act;

(6) “Authority “ means the Central Electricity Authority referred to in sub-section(1) of section 70;

(7) “Board” means, a State Electricity Board, constituted before the commencement of this Act, under sub-section (I) of section 5 of the commencement of this Act, under sub-section (I) of section 5 of the Electricity (Supply) Act, 1948;

(8) “ Captive generating plant” means a power plant set up by any person to generate electricity primarily for his own use and includes a power plant set up by any co-operative society or association of persons for generating electricity primarily for use of members of such cooperative society or association;

(9) “Central Commission” means the Central Electricity Regulatory Commission referred to in sub-section (1) of section 76;

(10) “Central Transmission Utility” means any Government company which the Central Government may notify under sub-section (1) of section 38;

(11) ” Chairperson” means the Chairperson of the Authority or Appropriate Commission or the Appellate Tribunal as the case may be;

(12) “ Cogeneration” means a process which simultaneously produces two or more forms of useful energy (including electricity);

(13) “company” means a company formed and registered under the Companies Act, 1956 and includes any body corporate under a Central, State or Provincial Act;

(14) “conservation” means any reduction in consumption of electricity as a result of increase in the efficiency in supply and use of electricity;

(15) “consumer” means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be;

(16) ” Dedicated Transmission Lines ” means any electric supply line for point to point transmission which are required for the purpose of connecting electric lines or electric plants of a captive generating plant referred to in section 9 or generating station referred to in section 10 to any transmission lines or sub-stations or generating stations or the load centre, as the case may be;

(17) “distribution licensee” means a licensee authorised to operate and maintain a distribution system for supplying electricity to the consumers in his area of supply;

(18) “distributing main” means the portion of any main with which a service line is, or is intended to be, immediately connected;

(19) “distribution system” means the system of wires and associated facilities between the delivery points on the transmission lines or the generating station connection and the point of connection to the installation of the consumers;

(20) “electric line” means any line which is used for carrying electricity for any purpose and includes

(a) any support for any such line, that is to say, any structure, tower, pole or other thing in, on, by or from which any such line is, or may be, supported, carried or suspended; and

(b) any apparatus connected to any such line for the purpose of carrying electricity;

(21) “Electrical Inspector” means a person appointed as such by the Appropriate Government under sub-section (1) of section 162 and also includes Chief Electrical Inspector;

(22) “electrical plant” means any plant, equipment, apparatus or appliance or any part thereof used for, or connected with, the generation, transmission, distribution or supply of electricity but does not include-

(a) an electric line; or

(b) a meter used for ascertaining the quantity of electricity supplied to any premises; or

(23) “electricity” means electrical energy-

(a) generated, transmitted, supplied or traded for any purpose; or

(b) used for any purpose except the transmission of a message;

(24) “Electricity Supply Code” means the Electricity Supply Code specified under section 50;

(25) “electricity system” means a system under the control of a generating company or licensee, as the case may be, having one or more -

(a) generating stations; or

(b) transmission lines; or

(c) electric lines and sub-stations; and when used in the context of a State or the Union, the entire electricity system within the territories thereof;

(26) “electricity trader” means a person who has been granted a licence to undertake trading in electricity under section 12;

(27) “ franchisee means a persons authorised by a distribution licensee to distribute electricity on its behalf in a particular area within his area of supply;

(28) “generating company” means any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person, which owns or operates or maintains a generating station;

(29) “generate” means to produce electricity from a generating station for the purpose of giving supply to any premises or enabling a supply to be so given;

(30) “generating station” or “ station” means any station for generating electricity, including any building and plant with step-up transformer, switch yard, switch-gear, cables or other appurtenant equipment, if any used for that purpose and the site thereof, a site intended to be used for a generating station, and any building used for housing the operating staff of a generating station, and where electricity is operating staff of a generating station, and where electricity is generated by water-power, includes penstocks, head and tail works, main and regulating reservoirs, dams and other hydraulic works, but does not in any case include any sub-station;

(31) “ Government company” shall have the meaning assigned to it in section 617 of the Companies Act, 1956;

(32) “grid” means the high voltage backbone system of inter-connected transmission lines, sub-stations and generating plants;

(33) “Grid Code” means the Grid Code specified by the Central Commission under clause (h) of sub-station (1) of section 79;

(34) “Grid Standards” means the Grid Standards specified under clause (d) of section 73 by the Authority;

(35) “high voltage line” means an electric line or cable of a nominal voltage as may be specified by the Authority from time to time;

(36) “ inter-State transmission system” includes -

(i) any system for the conveyance of electricity by means of main transmission line from the territory of one State to another State;

(ii) the conveyance of electricity across the territory of an intervening State as well as conveyance within the State which is incidental to such inter-State transmission of electricity;

(iii) the transmission of electricity within the territory of a State on a system built, owned, operated, maintained or controlled by Central Transmission Utility.

(37) “ intra -State transmission system” means any system for transmission of electricity other than an inter-State transmission system ;

(38) “ licence” means a licence granted under section 14;

(39) “ licensee “ means a person who has been granted a licence under section 14;

(40) “ line” means any wire, cable, tube , pipe, insulator, conductor or other similar thing (including its casing or coating) which is designed or adapted for use in carrying electricity and includes any line which surrounds or supports, or is surrounded or supported by or is installed in close proximity to, or is supported, carried or suspended in association with, any such line;

(41) “ local authority” means any Nagar Panchayat, Municipal Council, municipal corporation, panchayat constituted at the village, intermediate and district levels, body or port commissioners or other authority legally entitled to, or entrusted by the Union or any State Government with, the control or management of any area or local fund;

(42) “main” means any electric supply-“` line through which electricity is, or is intended to be, supplied ;

(43) “Member” means the Member of the Appropriate Commission or Authority or Joint Commission, or the Appellate Tribunal, as the case may be, and includes the Chairperson of such Commission or Authority or appellate tribunal;

(44) “National Electricity Plan” means the National Electricity Plan notified under sub-section (4) of section 3;

(45) “ National Load Despatch Centre” means the Centre established under sub-section (1) of section 26;

(46) “ notification” means notification published in the Official Gazette and the expression “ notify” shall be construed accordingly;

(47) “ open access” means the non-discriminatory provision for the use of transmission lines or distribution system or associated facilities with such lines or system by any licensee or consumer or a person engaged in generation in accordance with the regulations specified by the Appropriate Commission;

(48) “ overhead line” means an electric line which is placed above the ground and in the open air but does not include live rails of a traction system;

(49) “ person” shall include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person;

(50) “power system” means all aspects of generation, transmission, distribution and supply of electricity and includes one or more of the following, namely:-

(a) generating stations;

(b) transmission or main transmission lines;

(d) tie-lines;

(e) load despatch activities;

(f) mains or distribution mains;

(g) electric supply-lines;

(h) overhead lines;

(i) service lines;

(j) works;

(51) “ premises” includes any land, building or structure;

(52) “ prescribed” means prescribed by rules made by the Appropriate Government under this Act;

(53) “public lamp” means an electric lamp used for the lighting of any street;

(54) “real time operation” means action to be taken at a given time at which information about the electricity system is made available to the concerned Load Despatch Centre;

(55) “ Regional Power Committee” means a committee established by resolution by the Central Government for a specified region for facilitating the integrated operation of the power systems in that region;

(56) “Regional Load Despatch Centre” means the centre established under sub-section (1) of section 27;

(57) “regulations” means regulations made under this Act;

(58) “ repealed laws” means the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998 repealed by section 185;

(59) “rules ” means rules made under this Act;

(60) “ schedule” means the schedule to this Act;

(61) “service-line” means any electric supply line through which electricity is, or is intended to be,supplied -

(a) to a single consumer either from a distributing main or immediately from the Distribution Licensee’s premises; or

(b) from a distributing main to a group of consumers on the same premises or on contiguous premises supplied from the same point of the distributing main;

(62) “specified” means specified by regulations made by the Appropriate Commission or the Authority, as the case may be, under this Act;

(63) “ stand alone system” means the electricity system set up to generate power and distribute electricity in a specified area without connection to the grid;

(64) “State Commission” means the State Electricity Regulatory Commission constituted under sub-section (1) of section 82 and includes a Joint Commission constituted under sub-section (1) of section 83;

(65) “State Grid Code” means the State Grid Code referred under clause (h) of sub-section (1) of section 86;

(66) “State Load Despatch Centre” means the centre established under subsection (1) of section 31;

(67) “State Transmission Utility” means the Board or the Government company specified as such by the State Government under sub-section (1) of section 39;

(68) “street” includes any way, road, lane, square, court, alley, passage or open space, whether a thoroughfare or not, over which the public have a right of way, and also the roadway and footway over any public bridge or causeway;

(69) “sub-station” means a station for transforming or converting electricity for the transmission or distribution thereof and includes transformers, converters, switchgears, capacitors, synchronous condensers, structures, cable and other appurtenant equipment and any buildings used for that purpose and the site thereof;

(70) “supply”, in relation to electricity, means the sale of electricity to a licensee or consumer;

(71) “trading” means purchase of electricity for resale thereof and the expression “trade” shall be construed accordingly;

(72) “ transmission lines” means all high pressure cables and overhead lines (not being an essential part of the distribution system of a licensee) transmitting electricity from a generating station to another generating station or a sub-station, together with any step-up and step-down transformers, switch-gear and other works necessary to and used for the control of such cables or overhead lines, and such buildings or part thereof as may be required to accommodate such transformers, switchgear and other works;

(73) “transmission licensee” means a licensee authorised to establish or operate transmission lines;

(74) “transmit” means conveyance of electricity by means of transmission lines and the expression “transmission” shall be construed accordingly;

(75) “utility” means the electric lines or electrical plant, and includes all lands, buildings, works and materials attached thereto belonging to any person acting as a generating company or licensee under the provisions of this Act;

(76) “wheeling” means the operation whereby the distribution system and associated facilities of a transmission licensee or distribution licensee, as the case may be, are used by another person for the conveyance of electricity on payment of charges to be determined under section 62;

(77) “works” includes electric line, and any building, plant, machinery, apparatus and any other thing of whatever description required to transmit, distribute or supply electricity to the public and to carry into effect the objects of a licence or sanction granted under this Act or any other law for the time being in force.

Part I – National Electricity Policy And Plan

Section 3. National Electricity Policy and Plan

(1) The Central Government shall, from time to time, prepare the national electricity policy and tariff policy, in consultation with the State Governments and the Authority for development of the power system based on optimal utilisation of resources such as coal, natural gas, nuclear substances or materials, hydro and renewable sources of energy.

(2) The Central Government shall publish National Electricity Policy and tariff policy from time to time.

(3) The Central Government may, from time to time, in consultation with the State Governments and the Authority, review or revise, the National Electricity Policy and tariff policy referred to in sub-section (1) .

(4) The Authority shall prepare a National Electricity Plan in accordance with the National Electricity Policy and notify such plan once in five years:

Provided that the Authority in preparing the National Electricity Plan shall publish the draft National Electricity Plan and invite suggestions and objections thereon from licensees, generating companies and the public within such time as may be prescribed:

Provided further that the Authority shall -

(a) notify the plan after obtaining the approval of the Central Government;

(b) revise the plan incorporating therein the directions, if any, given by the Central Government while granting approval under clause (a).

(5) The Authority may review or revise the National Electricity Plan in accordance with the National Electricity Policy.

Section 4. National policy on stand alone systems for rural areas and nonconventional energy systems

The Central Government shall, after consultation with the State Governments, prepare and notify a national policy, permitting stand alone systems (including those based on renewable sources of energy and non-conventional sources of energy ) for rural areas.

Section 5. National policy on electrification and local distribution in rural areas

The Central Government shall also formulate a national policy, in consultation with the State Governments and the State Commissions, for rural electrification and for bulk purchase of power and management of local distribution in rural areas through Panchayat Institutions, users’ associations, co-operative socities, non- Governmental organisations or franchisees.

Section 6. ¹Joint responsibility of State Government and Central Government in rural electrification

The concerned State Government and the Central Government shall jointly endeavour to provide access to electricity to all areas including villages and hamlets through rural electricity infrastructure and electrification of households.

——————————————

Subs. Act 26 of 2007, Sec. 2 (w.e.f. 15th June 2007).

Part III – Generation Of Electricity

Section 7. Generating Company and requirement for setting up of generating station

Any generating company may establish, operate and maintain a generating station without obtaining a licence under this Act if it complies with the technical standards relating to connectivity with the grid referred to in clause (b) of section 73.

Section 8. Hydro-electric generation

(1) Notwithstanding anything contained in section 7, any generating company intending to set-up a hydro-generating station shall prepare and submit to the Authority for its concurrence, a scheme estimated to involve a capital expenditure exceeding such sum, as may be fixed by the Central Government, from time to time, by notification.

(2) The Authority shall, before concurring in any scheme submitted to it under sub-section (1) have particular regard to, whether or not in its opinion,-

(a) the proposed river-works will prejudice the prospects for the best ultimate development of the river or its tributaries for power generation, consistent with the requirements of drinking water, irrigation, navigation, flood-control, or other public purposes, and for this purpose the Authority shall satisfy itself, after consultation with the State Government, the Central Government, or such other agencies as it may deem appropriate, that an adequate study has been made of the optimum location of dams and other river-works;

(b) the proposed scheme meets, the norms regarding dam design and safety.

(3) Where a multi-purpose scheme for the development of any river in any region is in operation, the State Government and the generating company shall co-ordinate their activities with the activities of the person responsible for such scheme in so far as they are inter-related.

Section 9. Captive Generation

(1) Notwithstanding anything contained in this Act, a person may construct, maintain or operate a captive generating plant and dedicated transmission lines:

Provided that the supply of electricity from the captive generating plant through the grid shall be regulated in the same manner as the generating station of a generating company.

¹[Provided further that no licence shall be required under this Act for supply of electricity generated from a captive generating plant to any licencee in accordance with the provisions of this Act and the rules and regulations made thereunder and to any consumer subject to the regulations made under subsection (2) of section 42.]

(2) Every person, who has constructed a captive generating plant and maintains and operates such plant, shall have the right to open access for the purposes of carrying electricity from his captive generating plant to the destination of his use:

Provided that such open access shall be subject to availability of adequate transmission facility and such availability of transmission facility shall be determined by the Central Transmission Utility or the State Transmission Utility, as the case may be:

Provided further that any dispute regarding the availability of transmission facility shall be adjudicated upon by the Appropriate Commission.

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1 Ins. by Act 26 of 2007, Sec. 3 (w.e.f.15th June 2007).

Section 10. Duties of Generating Companies

(1) Subject to the provisions of this Act, the duties of a generating company shall be to establish, operate and maintain generating stations, tie-lines, sub-stations and dedicated transmission lines connected therewith in accordance with the provisions of this Act or the rules or regulations made thereunder.

(2) A generating company may supply electricity to any licensee in accordance with this Act and the rules and regulations made thereunder and may, subject to the regulations made under sub-section (2) of section 42, supply electricity to any consumer.

(3) Every generating company shall -

(a) submit technical details regarding its generating stations to the Appropriate Commission and the Authority;

(b) co-ordinate with the Central Transmission Utility or the State Transmission Utility, as the case may be, for transmission of the electricity generated by it.

Section 11. Direction to generating companies

(1) The Appropriate Government may specify that a generating company shall, in extraordinary circumstances operate and maintain any generating station in accordance with the directions of that Government.

Explanation. - For the purposes of this section, the expression “ extraordinary circumstances” means circumstances arising out of threat to security of the State, public order or a natural calamity or such other circumstances arising in the public interest.

(2) The Appropriate Commission may offset the adverse financial impact of the directions referred to in sub-section (1) on any generating company in such manner as it considers appropriate.

Part IV – Licensing

Section 12. Authorised persons to transmit, supply, etc., electricity

No person shall

(a) transmit electricity; or

(b) distribute electricity; or

(c) undertake trading in electricity, unless he is authorised to do so by a licence issued under section 14, or is exempt under section 13.

Section 13. Power to exempt

The Appropriate Commission may, on the recommendations, of the Appropriate Government, in accordance with the national policy formulated under section 5 and in public interest, direct, by notification that subject to such conditions and restrictions, if any, and for such period or periods, as may be specified in the notification, the provisions of section 12 shall not apply to any local authority, Panchayat Institution, users’ association, co-operative societies, nongovernmental organizations, or franchisees:

Section 14. Grant of Licence

The Appropriate Commission may, on application made to it under section 15, grant any person licence to any person -

(a) to transmit electricity as a transmission licensee; or

(b) to distribute electricity as a distribution licensee; or

Provided that any person engaged in the business of transmission or supply of electricity under the provisions of the repealed laws or any Act specified in the Schedule on or before the appointed date shall be deemed to be a licensee under this Act for such period as may be stipulated in the licence, clearance or approval granted to him under the repealed laws or such Act specified in the Schedule, and the provisions of the repealed laws or such Act specified in the Schedule in respect of such licence shall apply for a period of one year from the date of commencement of this Act or such earlier period as may be specified, at the request of the licensee, by the Appropriate Commission and thereafter the provisions of this Act shall apply to such business:

Provided further that the Central Transmission Utility or the State Transmission Utility shall be deemed to be a transmission licensee under this Act:

Provided also that in case an Appropriate Government transmits electricity or distributes electricity or undertakes trading in electricity, whether before or after the commencement of this Act, such Government shall be deemed to be a licensee under this Act, but shall not be required to obtain a licence under this Act:

Provided also that the Damodar Valley Corporation, established under sub-section (1) of section 3 of the Damodar Valley Corporation Act, 1948, shall be deemed to be a licensee under this Act but shall not be required to obtain a licence under this Act and the provisions of the Damodar Valley Corporation Act, 1948, in so far as they are not inconsistent with the provisions of this Act, shall continue to apply to that Corporation:

Provided also that the Government company or the company referred to in sub-section (2) of section 131 of this Act and the company or companies created in pursuance of the Acts specified in the Schedule, shall be deemed to be a licensee under this Act:

Provided also that the Appropriate Commission may grant a licence to two or more persons for distribution of electricity through their own distribution system within the same area, subject to the conditions that the applicant for grant of licence within the same area, subject to the conditions that the applicant for grant of licence within the same area shall, without prejudice to the other conditions or requirements under this Act, comply with the additional requirements ¹(relating to the capital adequacy, credit-worthiness, or code of conduct) as may be prescribed by the Central Government, and no such applicant who complies with all the requirements for grant of licence, shall be refused grant of licence on the ground that there already exists a licensee in the same area for the same purpose:

Provided also that in a case where a distribution licensee proposes to undertake distribution of electricity for a specified area within his area of supply through another person, that person shall not be required to obtain any separate licence from the concerned State Commission and such distribution licensee shall be responsible for distribution of electricity in his area of supply:

Provided also that where a person intends to generate and distribute electricity in a rural area to be notified by the State Government, such person shall not require any licence for such generation and distribution of electricity, but he shall comply with the measures which may be specified by the Authority under section 53:

Provided also that a distribution licensee shall not require a licence to undertake trading in electricity.

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Subs. by Act 57 of 2003, Sec.2 for the words and brackets “(including the capital adequacy credit worthiness, or Code of conduct)” (w.e.f. 27th January, 2004).

Section 15. Procedure for Grant of Licence

(1) Every application under section 14 shall be made in such form and in such manner as may be specified by the Appropriate Commission and shall be accompanied by such fee as may be prescribed.

(2) Any person who has made an application for grant of licence shall, within seven days after making such application, publish a notice of his application with such particulars and in such manner as may be specified and a licence shall not be granted -

(i) until the objections, if any, received by the Appropriate Commission in response to publication of the application have been considered by it:

Provided that no objection shall be so considered unless it is received before the expiration of thirty days from the date of the publication of such notice as aforesaid;

(ii) until, in the case of an application for a licence for an area including the whole or any part of any cantonment, aerodrome, fortress, arsenal, dockyard or camp or of any building or place in the occupation of the Government for defence purposes, the Appropriate Commission has ascertained that there is no objection to the grant of the licence on the part of the Central Government.

(3) A person intending to act as a transmission licensee shall, immediately on making the application, forward a copy of such application to the Central Transmission Utility or the State Transmission Utility, as the case may be.

(4) The Central Transmission Utility or the State Transmission Utility, as the case may be, shall, within thirty days after the receipt of the copy of the application referred to in sub-section (3), send its recommendations, if any, to the Appropriate Commission:

Provided that such recommendations shall not be binding on the Commission.

(5) Before granting a licence under section 14, the Appropriate Commission shall -

(a) publish a notice in two such daily newspapers, as that Commission may consider necessary, stating the name of the person to whom it proposes to issue the licence;

(b) consider all suggestions or objections and the recommendations, if any, of the Central Transmission Utility or State Transmission Utility, as the case may be.

(6) Where a person makes an application under sub-section (1) of section 14 to act as a licensee, the Appropriate Commission shall, as far as practicable, within ninety days after receipt of such application, -

(a) issue a licence subject to the provisions of this Act and the rules and regulations made thereunder; or

(b) reject the application for reasons to be recorded in writing if such application does not conform to the provisions of this Act or the rules and regulations made thereunder or the provisions of any other law for the time being in force:

Provided that no application shall be rejected unless the applicant has been given an opportunity of being heard.

(7) The Appropriate Commission shall, immediately after issue of licence, forward a copy of the licence to the Appropriate Government , Authority, local authority, and to such other person as the Appropriate Commission considers necessary.

(8) A licence shall continue to be in force for a period of twentyfive years unless such licence is revoked.

Section 16. Conditions of licence

The Appropriate Commission may specify any general or specific conditions which shall apply either to a licensee or class of licensees and such conditions shall be deemed to be conditions of such licence:

Provided that the Appropriate Commission shall, within one year from the appointed date, specify any general or specific conditions of licence applicable to the licensees referred to in the first, second, third, fourth and fifth provisos to section 14 after the expiry of one year from the commencement of this Act.

Section 17. Licensee not to do certain things

No licensee shall, without prior approval of the Appropriate Commission, -

(a) undertake any transaction to acquire by purchase or takeover or otherwise, the utility of any other licensee; or

(b) merge his utility with the utility of any other licensee:

Provided that nothing contained in this sub-section shall apply if the utility of the licensee is situate in a State other than the State in which the utility referred to in clause (a) or clause (b) is situate.

(2) Every licensee shall, before obtaining the approval under subsection (1), give not less than one month’s notice to every other licensee who transmits or distributes, electricity in the area of such licensee who applies for such approval.

(3) No licensee shall at any time assign his licence or transfer his utility, or any part thereof, by sale, lease , exchange or otherwise without the prior approval of the Appropriate Commission.

(4) Any agreement relating to any transaction specified in subsection (1) or sub-section (3), unless made with, the prior approval of the Appropriate Commission, shall be void.

Section 18. Amendment of licence

(1) Where in its opinion the public interest so permits, the Appropriate Commission, may, on the application of the licensee or otherwise, make such alterations and amendments in the terms and conditions of a licence as it thinks fit:

Provided that no such alterations or amendments shall be made except with the consent of the licensee unless such consent has, in the opinion of the Appropriate Commission, been unreasonably withheld.

(2) Before any alterations or amendments in the licence are made under this section, the following provisions shall have effect, namely: -

(a) where the licensee has made an application under sub-section (1) proposing any alteration or modifications in his licence, the licensee shall publish a notice of such application with such particulars and in such manner as may be specified;

(b) in the case of an application proposing alterations or modifications in the area of supply comprising the whole or any part of any cantonment, aerodrome, fortress, arsenal, dockyard or camp or of any building or place in the occupation of the Government for defence purposes, the Appropriate Commission shall not make any alterations or modifications except with the consent of the Central Government;

(c) where any alterations or modifications in a licence are proposed to be made otherwise than on the application of the licensee, the Appropriate Commission shall publish the proposed alterations or modifications with such particulars and in such manner as may be specified;

(d) the Appropriate Commission shall not make any alterations or modification unless all suggestions or objections received within thirty days from the date of the first publication of the notice have been considered.

Section 19. Revocation of licence

(1) If the Appropriate Commission, after making an enquiry, is satisfied that public interest so requires, it may revoke a licence in any of the following cases, namely: -

(a) where the licensee, in the opinion of the Appropriate Commission, makes wilful and prolonged default in doing anything required of him by or under this Act or the rules or regulations made thereunder;

(b) where the licensee breaks any of the terms or conditions of his licence the breach of which is expressly declared by such licence to render it liable to revocation;

(c) where the licensee fails, within the period fixed in this behalf by his licence, or any longer period which the Appropriate Commission may have granted therefor –

(i) to show, to the satisfaction of the Appropriate Commission, that he is in a position fully and efficiently to discharge the duties and obligations imposed on him by his licence; or and obligations imposed on him by his licence; or

(ii) to make the deposit or furnish the security, or pay the fees or other charges required by his licence;

(d) where in the opinion of the Appropriate Commission the financial position of the licensee is such that he is unable fully and efficiently to discharge the duties and obligations imposed on him by his licence.

(2) Where in its opinion the public interest so requires, the Appropriate Commission may, on application, or with the consent of the licensee, revoke his licence as to the whole or any part of his area of distribution or transmission or trading upon such terms and conditions as it thinks fit.

(3) No licence shall be revoked under sub-section (1) unless the Appropriate Commission has given to the licensee not less than three months’notice, in writing, stating the grounds on which it is proposed to revoke the licence, and has considered any cause shown by the licensee within the period of that notice, against the proposed revocation.

(4) The Appropriate Commission may, instead of revoking a licence under sub-section (1), permit it to remain in force subject to such further terms and conditions as it thinks fit to impose, and any further terms or conditions so imposed shall be binding upon and be observed by the licensee and shall be of like force and effect as if they were contained in the licence.

(5) Where the Commission revokes a licence under this section, it shall serve a notice of revocation upon the licensee and fix a date on which the revocation shall take effect.

(6) Where an Appropriate Commission has given notice for revocation of licence under sub-section (5), without prejudice to any penalty which may be imposed or prosecution proceeding which may be initiated under this Act, the licensee may, after prior approval of that Commission, sell his utility to any person who is found eligible by that Commission for grant of licence.

Section 20. Sale of utilities of licensees

(1) Where the Appropriate Commission revokes under section 19 the licence of any licensee , the following provisions shall apply, namely:- (a) the Appropriate Commission shall invite applications for acquiring the utility of the licensee whose licence has been revoked and determine which of such applications should be accepted, primarily on the basis of the highest and best price offered for the utility;

(b) the Appropriate Commission may, by notice in writing, require the licensee to sell his utility and thereupon the licensee shall sell his utility to the person (hereafter in this section referred to as the “ purchaser” ) whose application has been accepted by that Commission;

(c) all the rights, duties, obligations and liabilities of the licensee, on and from the date of revocation of licence or on and from the date, if earlier, on which the utility of the licensee is sold to a purchaser, shall absolutely cease except for any liabilities which have accrued prior to that date;

(d) the Appropriate Commission may make such interim arrangements in regard to the operation of the utility as may be considered appropriate including the appointment of Administrators;

(e) The Administrator appointed under clause (d) shall exercise such powers and discharge such functions as the Appropriate Commission may direct.

(2) Where a utility is sold under sub-section (1), the purchaser shall pay to the licensee the purchase price of the utility in such manner as may be agreed upon.

(3) Where the Appropriate Commission issues any notice under subsection (1) requiring the licensee to sell the utility, it may, by such notice, require the licensee to deliver the utility, and thereupon the licensee shall deliver on a date specified in the notice, the utility to the designated purchaser on payment of the purchase price thereof.

(4) Where the licensee has delivered the utility referred to in subsection (3) to the purchaser but its sale has not been completed by the date fixed in the notice issued under that sub-section, the Appropriate Commission may, if it deems fit, permit the intending purchaser to operate and maintain the utility system pending the completion of the sale.

Section 21. Vesting of utility in purchaser

Where a utility is sold under section 20 or section 24, then, upon completion of the sale or on the date on which the utility is delivered to the intending purchaser, as the case may be, whichever is earlier-

(a) the utility shall vest in the purchaser or the intending purchaser, as the case may be, free from any debt, mortgage or similar obligation of the licensee or attaching to the utility:

Provided that any such debt, mortgage or similar obligation shall attach to the purchase money in substitution for the utility; and

(b) the rights, powers, authorities, duties and obligations of the licensee under his licence shall stand transferred to the purchaser and such purchaser shall be deemed to be the licensee.

Section 22. Provisions where no purchase takes place

(1) If the utility is not sold in the manner provided under section 20 or section 24, the Appropriate Commission may, to protect the interest of consumers or in public interest, issue such directions or formulate such scheme as it may deem necessary for operation of the utility.

(2) Where no directions are issued or scheme is formulated by the Appropriate Commission under sub-section (1), the licensee referred to in section 20 or section 24 may dispose of the utility in such manner as it may deem fit:

Provided that, if the licensee does not dispose of the utility, within a period of six months from the date of revocation under section 20 or section 24, the Appropriate Commission may cause the works of the licensee in, under, over, along, or across any street or public land to be removed and every such street or public land to be reinstated, and recover the cost of such removal and reinstatement from the licensee.

Section 23. Directions to licensees

If the Appropriate Commission is of the opinion that it is necessary or expedient so to do for maintaining the efficient supply, securing the equitable distribution of electricity and promoting competition, it may, by order, provide for regulating supply, distribution, consumption or use thereof.

Section 24. Suspension of distribution licence and sale of utility

(1) If at any time the Appropriate Commission is of the opinion that a distribution licensee –

(a) has persistently failed to maintain uninterrupted supply of electricity conforming to standards regarding quality of electricity to the consumers; or

(b) is unable to discharge the functions or perform the duties imposed on it by or under the provisions of this Act; or

(d) has broken the terms and conditions of licence, and circumstances exist which render it necessary for it in public interest so to do, the Appropriate Commission may, for reasons to be recorded in writing, suspend, for a period not exceeding one year, the licence of the distribution licensee and appoint an Administrator to discharge the functions of the distribution licensee in accordance with the terms and conditions of licence:

Provided that before suspending a licence under this section, the Appropriate Commission shall give a reasonable opportunity to the distribution licensee to make representations against the proposed suspension of license and shall consider the representations, if any, of the distrbution licensee.

(2) Upon suspension of license under sub-section (1) the utilities of the distribution licensee shall vest in the Administrator for a period not exceeding one year or up to the date on which such utility is sold in accordance with the provisions contained in section 20, whichever is later.

(3) The Appropriate Commission shall, within one year of appointment of the Administrator under sub-section (1) either revoke the licence in accordance with the provisions contained in section 19 or revoke suspension of the licence and restore the utility to the distribution licensee whose licence had been suspended, as the case may be.

(4) In case where the Appropriate Commission revokes the licence under sub-section (3), the utility of the distribution licensee shall be sold within a period of one year from the date of revocation of the licence in accordance with the provisions of section 20 and the price after deducting the administrative and other expenses on sale of utilities be remitted to the distribution licensee.

Part V – Transmission Of Electricity (Inter-State Transmission)

Section 25. Inter-State, regional and Inter- Regional transmission

For the purposes of this Part, the Central Government may, make regionwise demarcation of the country, and, from time to time, make such modifications therein as it may consider necessary for the efficient, economical and integrated transmission and supply of electricity, and in particular to facilitate voluntary interconnections and co-ordination of facilities for the inter-State, regional and interregional generation and transmission of electricity.

Section 26. National Load Despatch Centre

(1) The Central Government may establish a centre at the national level, to be known as the National Load Despatch Centre for optimum scheduling and despatch of electricity among the Regional Load Despatch Centres.

(2) The constitution and functions of the National Load Despatch Centre shall be such as may be prescribed by the Central Government:

Provided that the National Load Despatch Centre shall not engage in the business of trading in electricity.

(3) The National Load Despatch Centre shall be operated by a Government company or any authority or corporation established or constituted by or under any Central Act, as may be notified by the Central Government.

Section 27. Constitution of Regional Load Despatch Centre

(1) The Central Government shall establish a centre for each region to be known as the Regional Load Despatch Centre having territorial jurisdiction as determined by the Central Government in accordance with section 25 for the purposes of exercising the powers and discharging the power and discharging the functions under this Part.

(2) The Regional Load Despatch Centre shall be operated by a Government Company or any authority or corporation established or constituted by or under any Central Act, as may be notified by the Central Government:

Provided that until a Government company or authority or corporation referred to in this sub-section is notified by the Central Government, the Central Transmission Utility shall operate the Regional Load Despatch Centre:

Provided further that no Regional Load Despatch Centre shall engage in the business of generation of electricity or trading in electricity.

Section 28. Functions of Regional Load Despatch Centre

(1) The Regional Load Despatch Centre shall be the apex body to ensure integrated operation of the power system in the concerned region.

(2) The Regional Load Despatch Centre shall comply with such principles, guidelines and methodologies in respect of the wheeling and optimum scheduling and despatch of electricity as the Central Commission may specify in the Grid Code.

(3) The Regional Load Despatch Centre shall -

(a) be responsible for optimum scheduling and despatch of electricity within the region, in accordance with the contracts entered into with the licensees or the generating companies operating in the region;

(b) monitor grid operations;

(d) exercise supervision and control over the inter-State transmission system; and

(e) be responsible for carrying out real time operations for grid control and despatch of electricity within the region through secure and economic operation of the regional grid in accordance with the Grid Standards and the Grid Code.

(4) The Regional Load Despatch Centre may levy and collect such fee and charges from the generating companies or licensees engaged in inter-State transmission of electricity as may be specified by the Central Commission.

Section 29. Compliance of directions

(1) The Regional Load Despatch Centre may give such directions and exercise such supervision and control as may be required for ensuring stability of grid operations and for achieving the maximum economy and efficiency in the operation of the power system in the region under its control.

(2) Every licensee, generating company, generating station, substation and any other person connected with the operation of the power system shall comply with the direction issued by the Regional Load Despatch Centres under sub-section (1).

(3) All directions issued by the Regional Load Despatch Centres to any transmission licensee of State transmission lines or any other licensee of the State or generating company (other than those connected to inter State transmission system) or sub-station in the State shall be issued through the State Load Despatch Centre and the State Load Despatch Centres shall ensure that such directions are duly complied with the licensee or generating company or sub-station.

(4) The Regional Power Committee in the region may, from time to time, agree on matters concerning the stability and smooth operation of the integrated grid and economy and efficiency in the operation of the power system in that region.

(5) If any dispute arises with reference to the quality of electricity or safe, secure and integrated operation of the regional grid or in relation to any direction given under sub-section (1), it shall be referred to the Central Commission for decision :

Provided that pending the decision of the Central Commission, the directions of the Regional Load Despatch Centre shall be complied with by the State Load Despatch Centre or the licensee or the generating company, as the case may be.

(6) If any licensee, generating company or any other person fails to comply with the directions issued under sub-section (2) or sub-section (3), he shall be liable to penalty not exceeding rupees fifteen lacs.

Section 30. Transmission within a State

The State Commission shall facilitate and promote transmission, wheeling and inter-connection arrangements within its territorial jurisdiction for the transmission and supply of electricity by economical and efficient utilisation of the electricity.

Section 31. Constitution of State Load Despatch Centres

(1) The State Government shall establish a Centre to be known as the State Load Despatch Centre for the purposes of exercising the powers and discharging the functions under this Part.

(2) The State Load Despatch Centre shall be operated by a Government company or any authority or corporation established or constituted Government company or any authority or corporation established or constituted by or under any State Act, as may be notified by the State Government.

Provided that until a Government company or any authority or corporation is notified by the State Government, the State Transmission Utility shall operate the State Load Despatch Centre:

Provided further that no State Load Despatch Centre shall engage in the business of trading in electricity.

Section 32. Functions of State Load Despatch Centres

(1) The State Load Despatch Centre shall be the apex body to ensure integrated operation of the power system in a State.

(2) The State Load Despatch Centre shall -

(a) be responsible for optimum scheduling and despatch of electricity within a State, in accordance with the contracts entered into with the licensees or the generating companies operating in that State;

(b) monitor grid operations;

(d) exercise supervision and control over the intra-state transmission system; and

(e) be responsible for carrying out real time operations for grid control and despatch of electricity within the State through secure and economic operation of the State grid in accordance with the Grid Standards and the State Grid Code.

(3) The State Load Despatch Centre may levy and collect such fee and charges from the generating companies and licensees engaged in intra-State transmission of electricity as may be specified by the State Commission.

Section 33. Compliance of directions

(1) The State Load Despatch Centre in a State may give such directions and exercise such supervision and control as may be required for ensuring the integrated grid operations and for achieving the maximum economy and efficiency in the operation of power system in that State.

(3) The State Load Despatch Centre shall comply with the directions of the Regional Load Despatch Centre.

(4) If any dispute arises with reference to the quality of electricity or safe, secure and integrated operation of the State grid or in relation to any direction given under sub-section (1) , it shall be referred to the State Commission for decision:

Provided that pending the decision of the State Commission, the direction of the State Load Despatch Centre shall be complied with by the licensee or generating company.

(5) If any licensee, generating company or any other person fails to comply with the directions issued under sub-section(1), he shall be liable to penalty not exceeding rupees five lacs.

Section 34. Grid Standards

Every transmission licensee shall comply with such technical standards, of operation and maintenance of transmission lines, in accordance with the Grid Standards, as may be specified by the Authority.

Section 35. Intervening transmission facilities

The Appropriate Commission may, on an application by any licensee, by order require any other licensee owning or operating intervening transmission facilities to provide the use of such facilities to the extent of surplus capacity available with such licensee.

Provided that any dispute regarding the extent of surplus capacity available with the licensee, shall be adjudicated upon by the Appropriate Commission.

Section 36. Charges for intervening transmission facilities

(1) Every licensee shall, on an order made under section 35, provided his intervening transmission facilities at rates, charges and terms and conditions as may be mutually agreed upon :

Provided that the Appropriate Commission may specify rates, charges and terms and conditions if these cannot be mutually agreed upon by the licensees.

(2) The rates, charges and terms and conditions referred to in subsection

(1) shall be fair and reasonable, and may be allocated in proportion to the use of such facilities.

Explanation. - For the purposes of section 35 and 36, the expression “ intervening transmission facilities” means the electric lines owned or operated by a licensee where such electric lines can be utilised for transmitting electricity for and on behalf of another licensee at his request and on payment of a tariff or charge.

Section 37. Direction by appropriate Government

The Appropriate Government may issue directions to the Regional Load Despatch Centres or State Load Despatch Centres, as the case may be, to take such measures as may be necessary for maintaining smooth and stable transmission and supply of electricity to any region or State.

Section 38. Central Transmission Utility and functions

(1) The Central Government may notify any Government company as the Central Transmission Utility:

Provided that the Central Transmission Utility shall not engage in the business of generation of electricity or trading in electricity:

Provided further that, the Central Government may transfer, and vest any property, interest in property, rights and liabilities connected with, and personnel involved in transmission of electricity of such Central Transmission Utility, to a company or companies to be incorporated under the Companies Act, 1956 to function as a transmission licensee, through a transfer scheme to be effected in the manner specified under Part XIII and such company or companies shall be deemed to be transmission licensees under this Act.

(2) The functions of the Central Transmission Utility shall be -

(a) to undertake transmission of electricity through inter-State transmission system;

(b) to discharge all functions of planning and co-ordination relating to inter-state transmission system with -

(i) State Transmission Utilities;

(ii) Central Government;

(iii) State Governments;

(iv) generating companies;

(v) Regional Power Committees;

(vi) Authority;

(vii) licensees;

(viii) any other person notified by the Central Government in this behalf;

(c) to ensure development of an efficient, co-ordinated and economical system of inter-State transmission lines for smooth flow of electricity from generating stations to the load centres;

(d) to provide non-discriminatory open access to its transmission system for use by-

(i) any licensee or generating company on payment of the transmission charges; or

(ii) any consumer as and when such open access is provided by the State Commission under sub-section (2) of section 42, on payment of the transmission charges and a surcharge thereon, as may be specified by the Central Commission:

Provided that such surcharge shall be utilised for the purpose of meeting the requirement of current level cross-subsidy:

Provided further that such surcharge and cross subsidies shall be progressively reduced ¹[*****] in the manner as may be specified by the Central Commission:

²[*****]

Provided also that such surcharge may be levied till such time the cross subsidies are not eliminated:

Provided also that the manner of payment and utilisation of the surcharge shall be specified by the Central Commission:

Provided also that such surcharge shall not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use.

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1 The words “and eliminated” omitted by Act 26 of 2007, Sec.4 [w.e.f. 15th June 2007].

2 The words “Provided also that such surcharge may be levied till such time the cross subsidies are not eliminated:” omitted by Act 26 of 2007, Sec.4 [w.e.f. 15th June 2007].

Section 39. State Transmission Utility and functions

(1) The State Government may notify the Board or a Government company as the State Transmission Utility:

Provided that the State Transmission Utility shall not engage in the business of trading in electricity:

Provided further that the State Government may transfer, and vest any property, interest in property, rights and liabilities connected with, and personnel involved in transmission of electricity, of such State Transmission Utility, to a company or companies to be incorporated under the Companies Act, 1956 to function as transmission licensee through a transfer scheme to be effected in the function as transmission licensee through a transfer scheme to be effected in the manner specified under Part XIII and such company or companies shall be deemed to be transmission licensees under this Act.

(2) The functions of the State Transmission Utility shall be -

(a) to undertake transmission of electricity through intra-State transmission system;

(b) to discharge all functions of planning and co-ordination relating to intra-state transmission system with -

(i) Central Transmission Utility;

(ii) State Governments;

(iii) generating companies;

(iv) Regional Power Committees;

(v) Authority;

(vi) licensees;

(vii) any other person notified by the State Government in this behalf;

(c) to ensure development of an efficient, co-ordinated and economical system of intra-State transmission lines for smooth flow of electricity from a generating station to the load centres;

(d) to provid non-discriminatory open access to its transmission system for use by-

(i) any licensee or generating company on payment of the transmission charges ; or

Provided that such surcharge shall be utilised for the purpose of meeting the requirement of current level cross-subsidy:

Provided further that such surcharge and cross subsidies shall be progressively reduced ¹[*****] in the manner as may be specified by the State Commission:

²[*****]

Provided also that such surcharge may be levied till such time the cross subsidies are not eliminated:

Provided also that the manner of payment and utilisation of the surcharge shall be specified by the State Commission.

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1. The words “and eliminated” omitted by Act 26 of 2007, Sec.5 [w.e.f. 15th June 2007]

2. The words “Provided also that such surcharge may be levied till such time the cross subsidies are not eliminated:” omitted by Act 26 of 2007, Sec.5 [w.e.f. 15th June 2007].

Section 40. Duties of Transmission licensees

It shall be the duty of a transmission licensee -

(a) to build, maintain and operate an efficient, co-ordinated and economical inter-State transmission system or intra-State transmission economical inter-State ransmission system or intra-State transmission system, as the case may be;

(b) to comply with the directions of the Regional Load Despatch Centre and the State Load Despatch Centre as the may be;.

(i) any licensee or generating company on payment of the transmission charges; or

Provided that such surcharge shall be utilised for the purpose of meeting the requirement of current level cross-subsidy:

Provided further that such surcharge and cross subsidies shall be progressively reduced ¹[*****] in the manner as may be specified by the Appropriate Commission:

²[*****]

Provided also that such surcharge may be levied till such time the cross subsidies are not eliminated:

Provided also that the manner of payment and utilisation of the surcharge shall be specified by the Appropriate Commission:

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1 The words “and eliminated” omitted by Act 26 of 2007, Sec.6 [w.e.f. 15th June 2007]

2 The words “Provided also that such surcharge may be levied till such time the cross subsidies are not eliminated:” omitted by Act 26 of 2007, Sec.6 [w.e.f. 15th June 2007].

Section 41. Other business of Transmission Licensee

A transmission licensee may, with prior intimation to the Appropriate Commission , engage in any business for optimum utilisation of its assets:

Provided that a proportion of the revenues derived from such business shall, as may be specified by the Appropriate Commission, be utilised for reducing its charges for transmission and wheeling:

Provided further that the transmission licensee shall maintain separate accounts for each such business undertaking to ensure that transmission business neither subsidies in any way such business undertaking nor encumbers its transmission assets in any way to support such business:

Provided also that no transmission licensee shall enter into any contract or otherwise engage in the business to in trading electricity :

(1) It shall be the duty of a distribution licensee to develop and maintain an efficient, co-ordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act.

(2) The State Commission shall introduce open access in such phases and subject to such conditions, (including the cross subsidies, and other operational constraints) as may be specified within one year of the appointed date by it and in specifying the extent of open access in successive phases and in determining the charges for wheeling, it shall have due regard to all relevant factors including such cross subsidies, and other operational constraints:

Provided that ¹[such open access may be allowed on payment of a surcharge] in addition to the charges for wheeling as may be determined by the State Commission :

Provided further that such surcharge shall be utilised to meet the requirements of current level of cross subsidy within the area of supply of the distribution licensee:

Provided also that such surcharge and cross subsidies shall be progressively reduced ²[*****] in the manner as may be specified by the State Commission:

³[Provided also that the State Commission shall, not later than five years from the date of commencement of the Electricity (Amendment) Act, 2003, by regulations, provide such open access to all consumers who require a supply of electricity where the maximum power to be made available at any time exceeds one megawatt.]

(3) Where any person, whose premises are situated within the area of supply of a distribution licensee, (not being a local authority engaged in the business of distribution of electricity before the appointed date) requires a supply of electricity from a generating company or any licensee other than such distribution licensee, such person may, by notice, require the distribution licensee for wheeling such electricity in accordance with regulations made by the State Commission and the duties of the distribution licensee with respect to such supply shall be of a common carrier providing non-discriminatory open access .

(4) Where the State Commission permits a consumer or class of consumers to receive supply of electricity from a person other than the distribution licensee of his area of supply, such consumer shall be liable to pay an additional surcharge on the charges of wheeling, as may be specified by the State Commission, to meet the fixed cost of such distribution licensee arising out of his obligation to supply.

(5) Every distribution licensee shall, within six months from the appointed date or date of grant of licence, whichever is earlier, establish a forum for redressal of grievances of the consumers in accordance with the guidelines as may be specified by the State Commission.

(6) Any consumer, who is aggrieved by non-redressal of his grievances under sub-section (5), may make a representation for the redressal of his grievance to an authority to be known as Ombudsman to be appointed or designated by the State Commission.

(7) The Ombudsman shall settle the grievance of the consumer within such time and in such manner as may be specified by the State Commission.

(8) The provisions of sub-sections (5),(6) and (7) shall be without prejudice to right which the consumer may have apart from the rights conferred upon him by those sub-sections.

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1 Subs. by Act 26 of 2007, Sec.7 for the words “such open access may be allowed before the cross subsidies are eliminated on payment of a surcharge” [w.e.f. 15th June 2007].

2 The words “and eliminated” omitted by Act 26 of 2007, Sec.7 [w.e.f. 15th June 2007].

3 Ins. by Act 57 of 2003, Sec.3 [w.e.f. 27th January, 2004].

Part VI – Distribution Of Electricity (Provisions with respect to distribution licensees)

Section 43. Duty to supply on request

(1) ¹[Save as otherwise provided in this Act, every distribution licensee], shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply :

Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate commissioning or within such period as may be specified by the Appropriate Commission.

Provided further that in case of a village or hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area.

¹[Explanation.- For the purposes of this sub-section, “application” means the application complete in all respects in the appropriate form, as required by the distribution licensee, along with documents showing payment of necessary charges and other compliances.]

(2) It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1) :

Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission .

(3) If a distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default.

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Ins. by Act 26 of 2007, Sec. 8 (w.e.f.. 15th June 2007).

Section 44. Exceptions from duty to supply electricity

Nothing contained in section 43 shall be taken as requiring a distribution licensee to give supply of electricity to any premises if he is prevented from doing so by cyclone, floods, storms or other occurrences beyond his control.

Section 45. Power to recover charges

(1) Subject to the provisions of this section, the prices to be charged by a distribution licensee for the supply of electricity by him in pursuance of section 43 shall be in accordance with such tariffs fixed from time to time and conditions of his licence.

(2) The charges for electricity supplied by a distribution licensee shall be -

(a) fixed in accordance with the methods and the principles as may be specified by the concerned State Commission ;

(b) published in such manner so as to give adequate publicity for such charges and prices.

(3) The charges for electricity supplied by a distribution licensee may include -

(a) a fixed charge in addition to the charge for the actual electricity supplied;

(b) a rent or other charges in respect of any electric meter or electrical plant provided by the distribution licensee.

(4) Subject to the provisions of section 62, in fixing charges under this section a distribution licensee shall not show undue preference to any person or class of persons or discrimination against any person or class of persons.

(5) The charges fixed by the distribution licensee shall be in accordance with the provisions of this Act and the regulations made in this behalf by the concerned State Commission.

Section 46. Power to recover expenditure

The State Commission may, by regulations, authorise a distribution licensee to charge from a person requiring a supply of electricity in pursuance of section 43 any expenses reasonably incurred in providing any electric line or electrical plant used for the purpose of giving that supply.

Section 47. Power to require security

(1) Subject to the provisions of this section, a distribution licensee may require any person, who requires a supply of electricity in pursuance of section 43, to give him reasonable security, as determined by regulations, for the payment to him of all monies which may become due to him -

(a) in respect of the electricity supplied to such persons; or

(b) where any electric line or electrical plant or electric meter is to be provided for supplying electricity to person, in respect of the provision of such line or plant or meter, and if that person fails to give such security, the distribution licensee may, if he thinks fit, refuse to give the supply or to provide the line or plant or meter for the period during which the failure continues.

(2) Where any person has not given such security as is mentioned in subsection (1) or the security given by any person has become invalid or insufficient, the distribution licensee may, by notice, require that person, within thirty days after the service of the notice, to give him reasonable security for the payment of all monies which may become due to him in respect of the supply of electricity or provision of such line or plant or meter.

(3) If the person referred to in sub-section(2) fails to give such security, the distribution licensee may, if he thinks fit, discontinue the supply of electricity for the period during which the failure continues.

(4) The distribution licensee shall pay interest equivalent to the bank rate or more, as may be specified by the concerned State Commission, on the security referred to in sub-section (1) and refund such security on the request of the person who gave such security.

(5) A distribution licensee shall not be entitled to require security in pursuance of clause (a) of sub-section (1) if the person requiring the supply is prepared to take the supply through a pre-payment meter.

Section 48. Additional terms of supply

A distribution licensee may require any person who requires a supply of electricity in pursuance of section 43 to accept -

(a) any restrictions which may be imposed for the purpose of enabling the distribution licensee to comply with regulations made under section 53;

(b) any terms restricting any liability of the distribution licensee for economic loss resulting from negligence of the person to whom the electricity is supplied.

Section 49. Agreements with respect to supply or purchase of electricity

Where the Appropriate Commission has allowed open access to certain consumers under section 42, such consumers notwithstanding the provisions contained in clause (d) of sub-section (1) of section 62, may enter into an agreement with any person for supply or purchase of electricity on such terms and conditions (including tariff) as may be agreed upon by them.

Section 50. ¹The Electricity Supply Code

The State Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges disconnection of supply of electricity for non-payment thereof; restoration of supply of electricity; tampering, distress or damage to electrical plant, electric lines or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter; entry for replacing, altering or maintaining electric lines or electrical plant or meter.

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Subs. by Act 26 of 2007, Sec.9 [w.e.f. 15th June 2007].

Section 51. Other businesses of distribution licensees

(1) A distribution licensee may, with prior intimation to the Appropriate Commission, engage in any other business for optimum utilisation of its assets:

Provided that a proportion of the revenues derived from such business shall, as may be specified by the concerned State Commission, be utilised for reducing its charges for wheeling :

Provided further that the distribution licensee shall maintain separate accounts for each such business undertaking to ensure that distribution business neither subsidies in any way such business undertaking nor encumbers its distribution assets in any way to support such business.

Provided also that nothing contained in this section shall apply to a local authority engaged, before the commencement of this Act, in the business of distribution of electricity.

Section 52. Provisions with respect to electricity traders

(1) Without prejudice to the provisions contained in clause (c) of section 12, the Appropriate Commission may, specify the technical requirement, capital adequacy requirement and credit worthiness for being an electricity trader.

(2) Every electricity trader shall discharge such duties, in relation to supply and trading in electricity, as may be specified by the Appropriate Commission.

Section 53. Provisions relating to safety and electricity supply

(1) The Authority may in consultation with the State Government, specify suitable measures for –

(a) protecting the public (including the persons engaged in the generation, transmission or distribution or trading) from dangers arising from the generation, transmission or distribution or trading of electricity, or use of electricity supplied or installation, maintenance or use of any electric line or electrical plant;

(b) eliminating or reducing the risks of personal injury to any person, or damage to property of any person or interference with use of such property ;

(c) prohibiting the supply or transmission of electricity except by means of a system which conforms to the specification as may be specified;

(d) giving notice in the specified form to the Appropriate Commission and the Electrical Inspector, of accidents and failures of supplies or transmissions of electricity;

(e) keeping by a generating company or licensee the maps, plans and sections relating to supply or transmission of electricity;

(f) inspection of maps, plans and sections by any person authorised by it or by Electrical Inspector or by any person on payment of specified fee;

(g) specifying action to be taken in relation to any electric line or electrical plant, or any electrical appliance under the control of a consumer for the purpose of eliminating or reducing a risk of personal injury or damage to property or interference with its use;

Section 54. Control of transmission and use of electricity

(1) Save as otherwise exempted under this Act, no person other than Central Transmission Utility or a State Transmission Utility, or a licensee shall transmit or use electricity at a rate exceeding two hundred and fifty watts and one hundred volts –

(a) in any street, or

(b) in any place,-

(i) in which one hundred or more persons are ordinarily likely to be assembled; or

(ii) which is a factory within the meaning of the Factories Act, 1948 or a mine within the meaning of the Mines Act, 1952; or

(iii) to which the State Government, by general or special order, declares the provisions of this sub-section to apply, without giving, before the commencement of transmission or use of electricity, not less than seven days’ notice in writing of his intention to the Electrical Inspector and to the District Magistrate, or the Commissioner of Police, as the case may be, containing particulars of the electrical installation and plant, if any, the nature and the purpose of supply and complying with such of the provisions of Part XI of this Act, as may be applicable:

Provided that nothing in this section shall apply to electricity used for the public carriage of passengers, animals or goods, on, or for the lighting or ventilation of the rolling stock of any railway or tramway subject to the provisions of the Railways Act, 1989.

(2) Where any difference or dispute arises as to whether a place is or is not one in which one hundred or more persons are ordinarily likely to be assembled, the matter shall be referred to the State Government, and the decision of the State Government thereon shall be final.

(3) The provisions of this section shall be binding on the Government.

Section 55. Use, etc., of meters

(1) No licensee shall supply electricity, after the expiry of two years from the appointed date, except through installation of a correct meter in accordance with regulations to be made in this behalf by the Authority:

Provided that the licensee may require the consumer to give him security for the price of a meter and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter:

Provided further that the State Commission may, by notification extend the said period of two years for a class or classes of persons or for such area as may be specified in that notification.

(2) For proper accounting and audit in the generation, transmission and distribution or trading of electricity, the Authority may direct the installation of meters by a generating company or licensee at such stages of generation, transmission or distribution or trading of electricity and at such locations of generation, transmission or distribution or trading , as it may deem necessary.

(3) If a person makes default in complying with the provisions contained in this section or regulations made under sub-section (1), the Appropriate Commission may make such order as it thinks fit for requiring the default to be made good by the generating company or licensee or by any officers of a company or other association or any other person who is responsible for its default.

Section 56. Disconnection of supply in default of payment

(1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer:

Provided that the supply of electricity shall not be cut off if such person deposits , under protest, -

(a) an amount equal to the sum claimed from him, or

(b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee.

(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity:

Section 57. Consumer Protection: Standards of performance of licensee

(1) The Appropriate Commission may, after consultation with the licensees and persons likely to be affected, specify standards of performance of a licensee or a class of licensees.

(2) If a licensee fails to meet the standards specified under subsection (1), without prejudice to any penalty which may be imposed or prosecution be initiated, he shall be liable to pay such compensation to the person affected as may be determined by the Appropriate Commission:

Provided that before determination of compensation, the concerned licensee shall be given a reasonable opportunity of being heard.

(3) The compensation determined under sub-section (2) shall be paid by the concerned licensee within ninety days of such determination.

Section 58. Different Standards of performance by licensee

The Appropriate Commission may specify different standards under subsection (1) of section 57 for a class or classes of licensee.

Section 59. Information with respect to levels of performance

(1) Every licensee shall, within the period specified by the Appropriate Commission, furnish to the Commission the following information, namely:-

(a) the level of performance achieved under sub-section (1) of the section 57;

(b) the number of cases in which compensation was made under subsection (2) of section 57 and the aggregate amount of the compensation.

(2) The Appropriate Commission shall at least once in every year arrange for the publication, in such form and manner as it considers appropriate, of such of the information furnished to it under sub-section (1).

Section 60. Market destination

The Appropriate Commission may such issue directions as it considers appropriate to a licensee or a generating company if such licensee or generating company enters into any agreement or abuses its dominant position or enters into a combination which is likely to cause or causes an adverse effect on competition in electricity industry.

Part VII – Tariff

Section 61. Tariff Regulations

The Appropriate Commission shall, subject to the provisions of this Act, specify the terms and conditions for the determination of tariff, and in doing so, shall be guided by the following, namely:-

(a) the principles and methodologies specified by the Central Commission for determination of the tariff applicable to generating companies and transmission licensees;

(b) the generation, transmission, distribution and supply of electricity are conducted on commercial principles;

(c) the factors which would encourage competition, efficiency, economical use of the resources, good performance and optimum investments;

(d) safeguarding of consumers’ interest and at the same time, recovery of the cost of electricity in a reasonable manner;

(e) the principles rewarding efficiency in performance;

(f) multi year tariff principles;

(g) ¹that the tariff progressively reflects the cost of supply of electricity and also, reduces and eliminates cross-subsidies within the period to be specified by the Appropriate Commission;

(h) the promotion of co-generation and generation of electricity from renewable sources of energy;

(i) the National Electricity Policy and tariff policy:

Provided that the terms and conditions for determination of tariff under the Electricity (Supply) Act, 1948, the Electricity Regulatory Commission Act, 1998 and the enactments specified in the Schedule as they stood immediately before the appointed date, shall continue to apply for a period of one year or until the terms and conditions for tariff are specified under this section, whichever is earlier.

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Subs. by Act 26 of 2007, Sec. 10 [w.e.f. 15th June 2007].

Section 62. Determination of Tariff

(1) The Appropriate Commission shall determine the tariff in accordance with provisions of this Act for –

(a) supply of electricity by a generating company to a distribution licensee:

Provided that the Appropriate Commission may, in case of shortage of supply of electricity, fix the minimum and maximum ceiling of tariff for sale or purchase of electricity in pursuance of an agreement, entered into between a generating company and a licensee or between licensees, for a period not exceeding one year to ensure reasonable prices of electricity;

(b) transmission of electricity ;

(d) retail sale of electricity.

Provided that in case of distribution of electricity in the same area by two or more distribution licensees, the Appropriate Commission may, for promoting competition among distribution licensees, fix only maximum ceiling of tariff for retail sale of electricity.

(2) The Appropriate Commission may require a licensee or a generating company to furnish separate details, as may be specified in respect of generation, transmission and distribution for determination of tariff.

(3) The Appropriate Commission shall not, while determining the tariff under this Act, show undue preference to any consumer of electricity but may differentiate according to the consumer’s load factor, power factor, voltage, total consumption of electricity during any specified period or the time at which the supply is required or the geographical position of any area, the nature of supply and the purpose for which the supply is required.

(4) No tariff or part of any tariff may ordinarily be amended more frequently than once in any financial year, except in respect of any changes expressly permitted under the terms of any fuel surcharge formula as may be specified.

(5) The Commission may require a licensee or a generating company to comply with such procedures as may be specified for calculating the expected revenues from the tariff and charges which he or it is permitted to recover.

(6) If any licensee or a generating company recovers a price or charge exceeding the tariff determined under this section, the excess amount shall be recoverable by the person who has paid such price or charge along with interest equivalent to the bank rate without prejudice to any other liability incurred by the licensee.

Section 63. Determination of tariff by bidding process

Notwithstanding anything contained in section 62, the Appropriate Commission shall adopt the tariff if such tariff has been determined through transparent process of bidding in accordance with the guidelines issued by the Central Government.

Section 64. Procedure for tariff order

(1) An application for determination of tariff under section 62 shall be made by a generating company or licensee in such manner and accompanied by such fee, as may be determined by regulations.

(2) Every applicant shall publish the application, in such abridged form and manner, as may be specified by the Appropriate Commission.

(3) The Appropriate Commission shall, within one hundred and twenty days from receipt of an application under sub-section (1) and after considering all suggestions and objections received from the public,-

(a) issue a tariff order accepting the application with such modifications or such conditions as may be specified in that order;

(b) reject the application for reasons to be recorded in writing if such application is not in accordance with the provisions of this Act and the rules and regulations made thereunder or the provisions of any other law for the time being in force:

Provided that an applicant shall be given a reasonable opportunity of being heard before rejecting his application.

(4) The Appropriate Commission shall, within seven days of making the order, send a copy of the order to the Appropriate Government, the Authority, and the concerned licensees and to the person concerned.

(5) Notwithstanding anything contained in Part X, the tariff for any inter-State supply, transmission or wheeling of electricity, as the case may be, involving the territories of two States may, upon application made to it by the parties intending to undertake such supply, transmission or wheeling, be determined under this section by the State Commission having jurisdiction in respect of the licensee who intends to distribute electricity and make payment therefor:

(6) A tariff order shall, unless amended or revoked, shall continue to be in force for such period as may be specified in the tariff order.

Section 65. Provision of subsidy by State Government

If the State Government requires the grant of any subsidy to any consumer or class of consumers in the tariff determined by the State Commission under section 62, the State Government shall, notwithstanding any direction which may be given under section 108, pay, within in advance in the manner as may be specified , by the State Commission the amount to compensate the person affected by the grant of subsidy in the manner the State Commission may direct, as a condition for the licence or any other person concerned to implement the subsidy provided for by the State Government:

Provided that no such direction of the State Government shall be operative if the payment is not made in accordance with the provisions contained in this section and the tariff fixed by State Commission shall be applicable from the date of issue of orders by the Commission in this regard.

Section 66. Development of market

The Appropriate Commission shall endeavour to promote the development of a market (including trading) in power in such manner as may be specified and shall be guided by the National Electricity Policy referred to in section 3 in this regard.

Part VIII – Works (Works of licensees)

Section 67. Provision as to opening up of streets, railways etc.

(1) A licensee may, from time to time but subject always to the terms and conditions of his licence, within his area of supply or transmission or when permitted by the terms of his licence to lay down or place electric supply lines without the area of supply, without that area carry out works such as -

(a) to open and break up the soil and pavement of any street, railway or tramway;

(b) to open and break up any sewer, drain or tunnel in or under any street, railway or tramway;

(d) to lay down and place electric lines, electrical plant and other works;

(e) to repair, alter or remove the same;

(f) to do all other acts necessary for transmission or supply of electricity.

(2) The Appropriate Government may, by rules made by it in this behalf, specify, -

(a) the cases and circumstances in which the consent in writing of the Appropriate Government, local authority, owner or occupier, as the case may be, shall be required for carrying out works;

(b) the authority which may grant permission in the circumstances where the owner or occupier objects to the carrying out of works;

(d) the procedure and manner of consideration of objections and suggestion received in accordance with the notice referred to in clause (c);

(e) the determination and payment of compensation or rent to the persons affected by works under this section;

(f) the repairs and works to be carried out when emergency exists;

(g) the right of the owner or occupier to carry out certain works under this section and the payment of expenses therefor;

(h) the procedure for carrying out other works near sewers, pipes or other electric lines or works;

(i) the procedure for alteration of the position of pipes, electric lines, electrical plant, telegraph lines, sewer lines, tunnels, drains, etc.;

(j) the procedure for fencing, guarding, lighting and other safety measures relating to works on streets, railways, tramways, sewers, drains or tunnels and immediate reinstatement thereof;

(k) the avoidance of public nuisance, environmental damage and unnecessary damage to the public and private property by such works;

(1) the procedure for undertaking works which are not reparable by the Appropriate Government, licensee or local authority;

(m) the manner of deposit of amount required for restoration of any railways, tramways, waterways, etc.;

(n) the manner of restoration of property affected by such works and maintenance thereof;

(o) the procedure for deposit of compensation payable by the licensee and furnishing of security; and

(p) such other matters as are incidental or consequential to the construction and maintenance of works under this section.

(3) A licensee shall, in exercise of any of the powers conferred by or under this section and the rules made thereunder, cause as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage, detriment or inconvenience caused by him or by any one employed by him.

(4) Where any difference or dispute [including amount of compensation under sub-section (3)] arises under this section, the matter shall be determined by the Appropriate Commission.

(5) The Appropriate Commission, while determining any difference or dispute arising under this section in addition to any compensation under sub-section (3), may impose a penalty not exceeding the amount of compensation payable under that sub-section.

Section 68. Provisions relating to Overhead lines

(1) An overhead line shall, with prior approval of the Appropriate Government, be installed or kept installed above ground in accordance with the provisions of sub-section (2).

(2) The provisions contained in sub-section (1) shall not apply-

(a) in relation to an electric line which has a nominal voltage not exceeding 11 kilovolts and is used or intended to be used for supplying to a single consumer;

(b) in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation; or

(3) The Appropriate Government shall, while granting approval under sub-section (1), impose such conditions (including conditions as to the ownership and operation of the line) as appear to it to be necessary

(4) The Appropriate Government may vary or revoke the approval at any time after the end of such period as may be stipulated in the approval granted by it.

(5) Where any tree standing or lying near an overhead line or where any structure or other object which has been placed or has fallen near an overhead line subsequent to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or transmission of electricity or the to interrupt or interfere with, the conveyance or transmission of electricity or the accessibility of any works, an Executive Magistrate or authority specified by the Appropriate Government may, on the application of the licensee, cause the tree, structure or object to be removed or otherwise dealt with as he or it thinks fit.

(6) When disposing of an application under sub-section (5), an Executive Magistrate or authority specified under that sub-section shall, in the case of any tree in existence before the placing of the overhead line, award to the person interested in the tree such compensation as he thinks reasonable, and such person may recover the same from the licensee.

Explanation. - For purposes of this section, the expression “ tree” shall be deemed to include any shrub, hedge, jungle growth or other plant.

Section 69. Notice to telegraph authority

(1) A licensee shall, before laying down or placing, within ten meters of any telegraph line, electric line, electrical plant or other works, not being either service lines, or electric lines or electrical plant, for the repair, renewal or amendment of existing works of which the character or position is not to be altered,-

(a) submit a proposal in case of a new installation to an authority to be designated by the Central Government and such authority shall take a decision on the proposal within thirty days;

(b) give not less than ten days’ notice in writing to the telegraph authority in case of repair, renewal or amendment or existing works , specifying-

(i) the course of the works or alterations proposed ;

(ii) the manner in which the works are to be utilised ;

(iii) the amount and nature of the electricity to be transmitted;

(iv) the extent to, and the manner in which (if at all), earth returns are to be used , and the licensee shall conform to such reasonable requirements, either general or special, as may be laid down by the telegraph authority within that period for preventing any telegraph line from being injuriously affected by such works or alterations:

Provided that in case of emergency (which shall be stated by the licensee in writing to the telegraph authority) arising from defects in any of the electric lines or electrical plant or other works of the licensee, the licensee shall be required to give only such notice as may be possible after the necessity for the proposed new works or alterations has arisen.

(2) Where the works of the laying or placing of any service line is to be executed the licensee shall, not less than forty-eight hours before commencing the work, serve upon the telegraph authority a notice in writing of his intention to execute such works.

Part IX – Central Electricity Authority (Constitution and functions of Authority)

Section 70. Constitution, etc., of Central Electricity Authority

(1) There shall be a body to be called the Central Electricity Authority to exercise such functions and perform such duties as are assigned to it under this Act.

(2) The Central Electricity Authority, established under section 3 of the Electricity (Supply) Act, 1948 and functioning as such immediately before the appointed date, shall be the Central Electricity Authority for the purposes of this Act and the Chairperson , Members, Secretary and other officers and employees thereof shall be deemed to have been appointed under this Act and they shall continue to hold office on the same terms and conditions on which they were appointed under the Electricity (Supply) Act, 1948.

(3) The Authority shall consist of not more than fourteen Members (including its Chairperson) of whom not more than eight shall be full-time Members to be appointed by the Central Government.

(4) The Central Government may appoint any person, eligible to be appointed as Member of the Authority, as the Chairperson of the Authority, or, designate one of the full time Members as the Chairperson of the Authority.

(5) The Members of the Authority shall be appointed from amongst persons of ability, integrity and standing who have knowledge of, and adequate experience and capacity in, dealing with problems relating to engineering, finance, commerce, economics or industrial matters, and at least one Member shall be appointed from each of the following categories, namely:-

(a) engineering with specialisation in design, construction, operation and maintenance of generating stations;

(b) engineering with specialisation in transmission and supply of electricity;

(d) applied economics, accounting, commerce or finance.

(6) The Chairperson and all the Members of the Authority shall hold office during the pleasure of the Central Government.

(7) The Chairperson shall be the Chief Executive of the Authority.

(8) The head quarters of the Authority shall be at Delhi.

(9) The Authority shall meet at the head office or any other place at such time as the Chairperson may direct, and shall observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at its meetings) as it may specify.

(10) The Chairperson, or if he is unable to attend a meeting of the Authority, any other Member nominated by the Chairperson in this behalf and in the absence of such nomination or where there is no Chairperson, any Member chosen by the Members present from among themselves shall preside at the meeting.

(11) All questions which come up before any meeting of the Authority shall be decided by a majority of votes of the Members present and voting, and in the event of an equality of votes, the Chairperson or the person presiding shall have the right to exercise a second or casting vote.

(12) All orders and decisions of the Authority shall be authenticated by the Secretary or any other officer of the Authority duly authorised by the Chairperson in this behalf.

(13) No act or proceedings of the Authority shall be questioned or shall be invalidated merely on the ground of existence of any vacancy in, or any defect in, the constitution of, the Authority.

(14) The Chairperson of the Authority and other full time Members shall receive such salary and allowances as may be determined by the Central Government and other Members shall receive such allowances and fees for attending the meetings of the Authority, as the Central Government may prescribe.

(15) The other terms and conditions of service of the Chairperson and Members of the Authority including, subject to the provisions of sub-section (6), their terms of office shall be such as the Central Government may prescribe.

Section 71. Members not to have certain interest

No Member of the Authority shall have any share or interest, whether in his own name or otherwise, in any company or other body corporate or an association of persons (whether incorporated or not), or a firm engaged in the business of generation, transmission, distribution and trading of electricity or fuel for the generation thereof or in the manufacture of electrical equipment.

Section 72. Officers and staff of Authority

The Authority may appoint a Secretary and such other officers and employees as it considers necessary for the performance of its functions under this Act and on such terms as to salary, remuneration, fee, allowance, pension, leave and gratuity, as the authority may in consultation with the Central Government, fix:

Provided that the appointment of the Secretary shall be subject to the approval of the Central Government.

Section 73. Functions and duties of Authority

The Authority shall perform such functions and duties as the Central Government may prescribe or direct, and in particular to -

(a) advise the Central Government on the matters relating to the national electricity policy, formulate short-term and perspective plans for development of the electricity system and co- ordinate the activities of the planning agencies for the optimal utilisation of resources to subserve the interests of the national economy and to provide reliable and affordable electricity for all consumers;

(b) specify the technical standards for construction of electrical plants, electric lines and connectivity to the grid;

(d) specify the Grid Standards for operation and maintenance of transmission lines;

(e) specify the conditions for installation of meters for transmission and supply of electricity;

(f) promote and assist in the timely completion of schemes and projects for improving and augmenting the electricity system;

(g) promote measures for advancing the skill of persons engaged in the electricity industry;

(h) advise the Central Government on any matter on which its advice is sought or make recommendation to that Government on any matter if, in the opinion of the Authority, the recommendation would help in improving the generation, transmission, trading, distribution and utilisation of electricity;

(i) collect and record the data concerning the generation, transmission, trading, distribution and utilisation of electricity and carry out studies relating to cost, efficiency, competitiveness and such like matters;

(j) make public from time to time information secured under this Act, and provide for the publication of reports and investigations;

(k) promote research in matters affecting the generation, transmission, distribution and trading of electricity;

(l) carry out, or cause to be carried out , any investigation for the purposes of generating or transmitting or distributing electricity;

(m) advise any State Government, licensees or the generating companies on such matters which shall enable them to operate and maintain the electricity system under their ownership or control in an improved manner and where necessary, in co-ordination with any other Government, licensee or the generating company owning or having the control of another electricity system;

(n) advise the Appropriate Government and the Appropriate Commission on all technical matters relating to generation, transmission and distribution of electricity;and

(o) discharge such other functions as may be provided under this Act.

Section 74. Power to require statistics and returns

It shall be the duty of every licensee, generating company or person generating electricity for its or his own use to furnish to the Authority such statistics, returns or other information relating to generation, transmission, distribution, trading and use of electricity as it may require and at such times and in such form and manner as may be specified by the Authority.

Section 75. Directions by Central Government to Authority

(1) In the discharge of its functions, the Authority shall be guided by such directions in matters of policy involving public interest as the Central Government may give to it in writing.

(2) If any question arises as to whether any such direction relates to a matter of policy involving public interest, the decision of the Central Government thereon shall be final.

Part X – Regulatory Commissions (Constitution, powers and functions of Central Commission)

Section 76. Constitution of Central Commission

(1) There shall be a Commission to be known as the Central Electricity Regulatory Commission to exercise the powers conferred on, and discharge the functions assigned to, it under this Act.

(2) The Central Electricity Regulatory Commission, established under section 3 of the Electricity Regulatory Commissions Act, 1998 and functioning as such immediately before the appointed date, shall be deemed to be the Central Commission for the purposes of this Act and the Chairperson, Members, Secretary, and other officers and employees thereof shall deemed to have been appointed under this Act and they shall continue to hold office on the same terms and conditions on which they were appointed under the Electricity Regulatory Commissions Act, 1998.

Provided that the Chairperson and other Members of the Central Commission appointed, before the commencement of this Act, under the Electricity Regulatory Commissions Act, 1998, may, on the recommendations of the Selection Committee constituted under sub-section (1) of section 78, be allowed, to opt for the terms and conditions under this Act by the Central Government.

(3) The Central Commission shall be a body corporate by the name aforesaid, having perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued.

(4) The head office of the Central Commission shall be at such place as the Central Government may, by notification, specify.

(5) The Central Commission shall consist of the following Members namely:-

(a) a Chairperson and three other Members;

(b) the Chairperson of the Authority who shall be the Member, ex officio.

(6) The Chairperson and Members of the Central Commission shall be appointed by the Central Government on the recommendation of the Selection Committee referred to in section 78.

Section 77. Qualification for appointment of Members of Central Commission

(1) The Chairperson and the Members of the Central Commission shall be persons having adequate knowledge of, or experience in,or shown capacity in, dealing with, problems relating to engineering, law, economics, commerce, finance or, management and shall be appointed in the following manner, namely:-

(a) one person having qualifications and experience in the field of engineering with specialisation in generation, transmission or distribution of electricity;

(b) one person having qualifications and experience in the field of finance;

c) two persons having qualifications and experience in the field of economics, commerce, law or management:

Provided that not more than one Member shall be appointed under the same category under clause (c).

(2) Notwithstanding anything contained in sub-section (1), the Central Government may appoint any person as the Chairperson from amongst persons who is,or has been, a Judge of the Supreme Court or the Chief Justice of a High Court:

Provided that no appointment under this sub-section shall be made except after consultation with the Chief Justice of India.

(3) The Chairperson or any other Member of the Central Commission shall not hold any other office.

(4) The Chairperson shall be the Chief Executive of the Central Commission.

Section 78. Constitution of Selection Committee to recommend Members

(1) The Central Government shall, for the purposes of selecting the Members of the Appellate Tribunal and the Chairperson and Members of the Central Commission, constitute a Selection Committee consisting of –

(a) Member of the Planning Commission incharge of the energy sector ……………… Chairperson;

(b) Secretary-in-charge of the Ministry of the Central Government dealing with the Department of the Legal Affairs …………. Member;

(d) a person to be nominated by the Central Government in accordance with sub-section (2)………………… Member ;

(e) a person to be nominated by the Central Government in accordance with sub-section (3) ………………… Member ;

(f) Secretary-in-charge of the Ministry of the Central Government dealing with power ………………….. Member.

(2) For the purposes of clause (d) of sub-section (1), the Central Government shall nominate from amongst persons holding the post of chairperson or managing director, by whatever name called, of any public financial institution specified in section 4A of the Companies Act, 1956. (1 of 1956)

(3) For the purposes of clause (e) of sub-section (1), the Central Government shall, by notification, nominate from amongst persons holding the post of director or the head of the institution, by whatever name called, of any research, technical or management institution for this purpose.

(4) Secretary-in-charge of the Ministry of the Central Government dealing with Power shall be the Convenor of the Selection Committee.

(5) The Central Government shall, within one month from the date of occurrence of any vacancy by reason of death, resignation or removal of a Member of the Appellate Tribunal or the Chairperson or a Member of the Central Commission and six months before the superannuation or end of tenure of the Member of the Appellate Tribunal or Member of the Central Commission, make a reference to the Selection Committee for filling up of the vacancy.

(6) The Selection Committee shall finalise the selection of the Chairperson and Members referred to in sub-section (5) within three month from the date on which the reference is made to it.

(7) The Selection Committee shall recommend a panel of two names for every vacancy referred to it.

(8) Before recommending any person for appointment as Member of the Appellate Tribunal or the Chairperson or other Member of the Central Commission, the Selection Committee shall satisfy itself that such person does not have any financial or other interest which is likely to affect prejudicially his functions as the Chairperson or Member.

(9) No appointment of the Chairperson or other Member shall be invalid merely by reason of any vacancy in the Selection Committee:

Provided that nothing contained in this section shall apply to the appointment of a person as the Chairperson of the Central Commission where such person is, or has been , a Judge of the Supreme Court or the Chief Justice of a person is, or has been , a Judge of the Supreme Court or the Chief Justice of a High Court.

Section 79. High Functions of Central Commission

(1) The Central Commission shall discharge the following functions, namely:-

(a) to regulate the tariff of generating companies owned or controlled by the Central Government;

(b) to regulate the tariff of generating companies other than those owned or controlled by the Central Government specified in clause (a), if such generating companies enter into or otherwise have a composite scheme for generation and sale of electricity in more than one State;

(d) to determine tariff for inter-State transmission of electricity;

(e) to issue licenses to persons to function as transmission licensee and electricity trader with respect to their inter-State operations.

(f) to adjudicate upon disputes involving generating companies or transmission licensee in regard to matters connected with clauses (a) to (d) above and to refer any dispute for arbitration;

(g) to levy fees for the purposes of this Act;

(h) to specify Grid Code having regard to Grid Standards;

(i) to specify and enforce the standards with respect to quality, continuity and reliability of service by licensees.

(j) to fix the trading margin in the inter-State trading of electricity, if considered, necessary;

(k) to discharge such other functions as may be assigned under this Act.

(2) The Central Commission shall advise the Central Government on all or any of the following matters, namely :-

(a) Advise the Central Government on all or any of the following matters, namely:-

(i) formulation of National electricity Policy and tariff policy:

(ii) promotion of competition, efficiency and economy in activities of the electricity industry;

(iii) promotion of investment in electricity industry;

(iv) any other matter referred to the Central Commission by that Government.

(3) The Central Commission shall ensure transparency while exercising its powers and discharging its functions.

(4) In discharge of its functions, the Central Commission shall be guided by the National Electricity Policy, National Electricity Plan and tariff policy published under section 3.

Section 80. Central Advisory Committee

(1) The Central Commission may, by notification, establish with effect from such date as it may specify in such notification, a Committee to be known as the Central Advisory Committee.

(2) The Central Advisory Committee shall consist of not more than thirty-one members to represent the interests of commerce, industry, transport, agriculture, labour, consumers, non-governmental organisations and academic and research bodies in the electricity sector.

(3) The Chairperson of the Central Commission shall be the exofficio Chairperson of the Central Advisory Committee and the Members of that Commission and Secretary to the Government of India in charge of the Ministry or Department of the Central Government dealing with Consumer Affairs and Public Distribution System shall be the ex-officio Members of the Committee.

Section 81. Objects of Central Advisory Committee

The objects of the Central Advisory Committee shall be to advise the Central Commission on:–

(i) major questions of policy;

(ii) matters relating to quality, continuity and extent of service provided by the licensees;

(iii) compliance by the licensees with the conditions and requirements of their licence;

(iv) protection of consumer interest;

(v) electricity supply and overall standards of performance by utilities.

Section 82. Constitution Of State Commissions

(1) Every State Government shall, within six months from the appointed date, by notification, constitute for the purposes of this Act, a Commission for the State to be known as the (name of the State) Electricity Regulatory Commission:

Provided that the State Electricity Regulatory Commission, established by a State Government under section 17 of the Electricity Regulatory Commissions Act, 1998 and the enactments specified in the Schedule, and functioning as such immediately before the appointed date shall be the State Commission for the purposes of this Act and the Chairperson, Members, Secretary, and other officers and other employees thereof shall continue to hold office, on the same terms and conditions on which they were appointed under those Acts.

Provided further that the Chairperson and other Members of the State Commission appointed before the commencement of this Act under the Electricity Regulatory Commissions Act, 1998 or under the enactments specified in the Schedule, may on the recommendations of the Selection Committee constituted under sub-section

(1) of Section 85 be allowed to opt for the terms and conditions under this Act by the concerned State Government.

(2) The State Commission shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued.

(3) The head office of the State Commission shall be at such place as the State Government may, by notification, specify.

(4) The State Commission shall consist of not more than three Members, including the Chairperson.

(5) The Chairperson and Members of the State Commission shall be appointed by the State Government on the recommendation of a Selection Committee referred to in section 85.

Section 83. Joint Commission

(1) Notwithstanding anything to the contrary contained in section 82, a Joint Commission may be constituted by an agreement to be entered into.

(a) by two or more Governments of States; or

(b) by the Central Government, in respect of one or more Union territories, and one or more Governments of States, and shall be in force for such period and shall be subject to renewal for each further period, if any, as may be stipulated in the agreement:

Provided that the Joint Commission, constituted under section 21 A of Electricity Regulatory Commissions Act, 1998 and functioning as such immediately before the appointed day, shall be the Joint Commission for the purposes of this Act and the Chairperson, members, Secretary and other officers and employees thereof shall be deemed to have been appointed as such under this Act and they shall continue to hold office, on the same terms and conditions on which they were appointed under the Electricity Regulatory Commissions Act, 1998. (14 of 1998)

(2) The Joint Commission shall consists of 1 Member from each of the participating States and Union Territories and the Chairperson shall be appointed from amongst the Members by consensus, failing which by rotation.

(3) An agreement under sub-section (1) shall contain provisions as to the name of the Joint Commission, the manner in which the participating States may be associated in the selection of the Chairperson and Members of the Joint Commission, manner of appointment of Members and appointment of Chairperson by rotation or consensus, places at which the Commission shall sit, apportionment among the participating States of the expenditure in connection with the Joint Commission, manner in which the differences of opinion between the Joint Commission and the State Government concerned would be resolved and may also contain such other supplemental, incidental and consequential provisions not inconsistent with this Act as may be deemed necessary or expedient for giving effect to the agreement.

(4) The Joint Commission shall determine tariff in respect of the participating States or Union Territories separately and independently.

(5) Notwithstanding anything contained in this section, the Central Government may, if so authorised by all the participating States, constitute a Joint Commission and may exercise the powers in respect of all or any of the matters specified under sub-section (3) and specifically so authorized by the participating States.

The Electricity Act, 2003

Section 84. Qualifications of appointment of Chairperson and Members of State Commission

(1) The Chairperson and the Members of the State Commission shall be persons of ability, integrity and standing who have adequate knowledge of, and have shown capacity in, dealing with problems relating to engineering, finance, commerce, economics, law or management.

(2) Notwithstanding anything contained in sub-section (1), the State Government may appoint any person as the Chairperson from amongst persons who is, or has been, a Judge of a High Court:

Provided that no appointment under this sub-section shall be made except after consultation with the Chief Justice of that High Court.

(3) The Chairperson or any other Member of the State Commission shall not hold any other office.

(4) The Chairperson shall be the Chief Executive of the State Commission.

Section 85. Constitution of Selection Committee to select Members of State Commission

(1) The State Government shall, for the purposes of selecting the Members of the State Commission, constitute a Selection Committee consisting of –

(a) a person who has been a Judge of the High Court…. Chairperson;

(b) the Chief Secretary of the concerned State… … … … . ….Member;

Provided that nothing contained in this section shall apply to the appointment of a person as the Chairperson who is or has been a Judge of the High Court.

(2) The State Government shall, within one month from the date of occurrence of any vacancy by reason of death, resignation or removal of the Chairperson or a Member and six months before the superannuation or end of tenure of the Chairperson or Member, make a reference to the Selection Committee for filling up of the vacancy.

(3) The Selection Committee shall finalise the selection of the Chairperson and Members within three month from the date on which the reference is made to it.

(4) The Selection Committee shall recommend a panel of two names for every vacancy referred to it.

(5) Before recommending any person for appointment as the Chairperson or other Member of the State Commission, the Selection Committee shall satisfy itself that such person does not have any financial or other interest which is likely to affect prejudicially his functions as Chairperson or Member, as the case may be.

(6) No appointment of Chairperson or other Member shall be invalid merely by reason of any vacancy in the Selection Committee.

Section 86. Functions of State Commission

(1) The State Commission shall discharge the following functions, namely: -

(a) determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State:

Providing that where open access has been permitted to a category of consumers under section 42, the State Commission shall determine only the wheeling charges and surcharge thereon, if any, for the said category of consumers;

(b) regulate electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companies or licensees or from other sources through agreements for purchase of power for distribution and supply within the State;

(d) issue licences to persons seeking to act as transmission licensees, distribution licensees and electricity traders with respect to their operations within the State;

(e) promote congenration and generation of electricity from renewable sources of energy by providing suitable measures for connectivity with the grid and sale of electricity to any person, and also specify, for purchase of electricity from such sources, a percentage of the total consumption of electricity in the area of a distribution licence;

(f) adjudicate upon the disputes between the licensees, and generating companies and to refer any dispute for arbitration;

(g) levy fee for the purposes of this Act;

(h) specify State Grid Code consistent with the Grid Code specified under clause (h) of sub-section (1) of section 79;

(i) specify or enforce standards with respect to quality, continuity and reliability of service by licensees;

(j) fix the trading margin in the intra-State trading of electricity, if considered, necessary; and

(k) discharge such other functions as may be assigned to it under this Act.

(2) The State Commission shall advise the State Government on all or any of the following matters, namely :-.

(i) promotion of competition, efficiency and economy in activities of the electricity industry;

(ii) promotion of investment in electricity industry;

(iii) reorganization and restructuring of electricity industry in the State;

(iv) matters concerning generation, transmission , distribution and trading of electricity or any other matter referred to the State Commission by that Government.

(3) The State Commission shall ensure transparency while exercising its powers and discharging its functions.

(4) In discharge of its functions the State Commission shall be guided by the National Electricity Policy, National Electricity Plan and tariff policy published under section 3.

Section 87. State Advisory Committee

(1) The State Commission may, by notification, establish with effect from such date as it may specify in such notification, a Committee to be known as the State Advisory Committee.

(2) The State Advisory Committee shall consist of not more than twenty-one members to represent the interests of commerce, industry, transport, agriculture, labour, consumers, non-governmental organisations and academic and research bodies in the electricity sector.

(3) The Chairperson of the State Commission shall be the ex-officio Chairperson of the State Advisory Committee and the Members of the State Commission and the Secretary to State Government in charge of the Ministry or Commission and the Secretary to State Government in charge of the Ministry or Department dealing with Consumer Affairs and Public Distribution System shall be the ex-officio Members of the Committee.

Section 88. Objects of State Advisory Committee

The objects of the State Advisory Committee shall be to advise the Commission on –

(i) major questions of policy;

(ii) matters relating to quality, continuity and extent of service provided by the licensees;

(iii) compliance by licensees with the conditions and requirements of their licence:

(iv) protection of consumer interest; and

(v) electricity supply and overall standards of performance by utilities.

Section 89. Term of office and conditions of service of members

(1) The Chairperson or other Member shall hold office for a term of five years from the date he enters upon his office;

Provided that the Chairperson or other Member in the Central Commission or the State Commission shall not be eligible for re-appointment in the same capacity as the Chairperson or a Member in that Commission in which he had earlier held office as such :

Provided further that no Chairperson or Member shall hold office as such after he has attained the age of sixty-five years.

(2) The salary, allowances and other terms and conditions of service of the Chairperson and Members shall be such as may be prescribed by the Appropriate Government.

Provided that the salary, allowances and other terms and conditions of service of the Members, shall not be varied to their disadvantage after appointment.

(3) Every Member shall, before entering upon his office, make and subscribe to an oath of office and secrecy in such form and in such manner and before such authority as may be prescribed.

(4) Notwithstanding anything contained in sub-section (1), a Member may-

(a) Relinquish his office by giving in writing to the Appropriate Government a notice of not less than three months; or

(b) be removed from his office in accordance with the provisions of section 90.

(5) Any member ceasing to hold office as such shall –

(a) not accept any commercial employment for a period of two years from the date he ceases to hold such office; and (b) not represent any person before the Central Commission or any State Commission in any manner.

Explanation. – For the purposes of this sub-section “commercial employment” means employment in any capacity in any organisation which has been a party to the proceedings before the Appropriate Commission or employment in any capacity under, or agency of, a person engaged in trading, commercial, industrial or financial business in electricity industry and includes a director of a company or partner of a firm or setting up practice either independently or as partner of a firm or as an advisor or a consultant.

Section 90. Removal of member

(1) No Member shall be removed from office except in accordance with the provisions of this section.

(2) The Central Commission, in the case of a Member of the Central Commission, and the State Government, in the case of a Member of the State Commission, may by order remove from office any Member, if he-

(a) has been adjudged an insolvent;

(b) has been convicted of an offence which, in the opinion of the Appropriate Government, involves moral turpitude;

(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member;

(e) has so abused his position as to render his continuance in office prejudicial to the public interest; or

(f) has been guilty of proved misbehaviour:

Provided that no Member shall be removed from his office on any ground specified in clauses (d), (e) and (f) unless the Chairperson of the Appellate Tribunal on a reference being made to him in this behalf by the Central Government, or the State Government, as the case may be, has, on an inquiry, held by him in accordance with such procedure as may be prescribed by the Central Government, reported that the Member ought on such ground or grounds to be removed.

(3) The Central Government or the State Government, as the case may be, may, in consultation with the Chairperson of the Appellate Tribunal suspend any Member of the Appropriate Commission in respect of whom a reference has been made to the Chairperson of the Appellate Tribunal, under sub-section (2) until the Central Government or the State Government, as the case may be, has passed orders on receipt of the report of the Chairperson of the Appellate Tribunal, on such reference:

Provided that nothing contained in this section shall apply to the Chairperson of the Appropriate Commission who, at the time of his appointment as such is a sitting Judge of the Supreme court or the chief Justice of a High Court or a Judge of a High Court.

Section 91. Secretary Officers and other employees of Appropriate Commission

(1) The Appropriate Commission may appoint a Secretary to exercise such powers and perform such duties as may be specified.

(2) The Appropriate Commission may, with the approval of the Appropriate Government, specify the numbers, nature and categories of other officers and employees. (5 of 1908)

(3) The salaries and allowances payable to, and other term and conditions of service of, the Secretary, officers and other employees shall be such as may be specified with the approval of the Appropriate Government.

(4) The Appropriate Commission may appoint consultants required to assist that Commission in the discharge of its functions on the terms and conditions as may be specified.

Section 92. Proceedings of Appropriate Commission

(1) The Appropriate Commission shall meet at the head office or any other place at such time as the Chairperson may direct, and shall observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at its meetings) as it may specify.

(2) The Chairperson, or if he is unable to attend a meeting of the Appropriate Commission, any other Member nominated by the Chairperson in this behalf and, in the absence of such nomination or where there is no Chairperson, any Member chosen by the Members present from among themselves, shall preside at the meeting.

(3) All questions which come up before any meeting of the Appropriate Commission shall be decided by a majority of votes of the Members present and voting, and in the event of an equality of votes, the Chairperson or in his absence, the person presiding shall have a second or casting vote.

(4) Save as otherwise provided in sub-section (3), every Member shall have one vote.

(5) All orders and decisions of the Appropriate Commission shall be authenticated by its Secretary or any other officer of the Commission duly authorised by the Chairperson in this behalf.

Section 93. Vacancies, etc., not to invalidate proceedings

No act or proceedings of the Appropriate Commission shall be questioned or shall be invalidated merely on the ground of existence of any vacancy or defect in the constitution of the Appropriate Commission.

Section 94. Powers of Appropriate Commission

(1) The Appropriate Commission shall, for the purposes of any inquiry or proceedings under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 in respect of the following matters, namely: -

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) discovery and production of any document or other material object producible as evidence;

(d) requisitioning of any public record;

(e) issueing commission for the examination of witnesses;

(f) reviewing its decisions, directions and orders;

(g) any other matter which may be prescribed.

(2) The Appropriate Commission shall have the powers to pass such interim order in any proceeding, hearing or matter before the Appropriate Commission, as that Commission may consider appropriate.

(3) The Appropriate Commission may authorise any person, as it deems fit, to represent the interest of the consumers in the proceedings before it

Section 95. Proceedings before Commission

All proceedings before the Appropriate Commission shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code and the Appropriate Commission shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973.

Section 96. Powers of entry and seizure

The Appropriate Commission or any officer, not below the rank of a Gazetted Officer specially authorised in this behalf by the Commission, may enter any building or place where the Commission has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document or take extracts or copies therefrom subject to the provisions of section 100 of the Code of Criminal Procedure, 1973, insofar as it may be applicable.

Section 97. Delegation

The Appropriate Commission may, by general or special order in writing, delegate to any Member, Secretary officer of the Appropriate Commission or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the powers to adjudicate disputes under Section 79 and Section 86 and the powers to make regulations under section 178 or section 181) as it may deem necessary.

Section 98. Grants, Fund, Accounts, Audit and Report

The Central Government may, after due appropriation made by Parliament in this behalf, make to the Central Commission grants and loans of such sums of money as that Government may consider necessary.

Section 99. Establishment of Fund by Central Government

1) There shall be constituted a Fund to be called the Central Electricity Regulatory Commission Fund and there shall be credited thereto-

(a) any grants and loans made to the Central Commission by the Central Government under section 98;

(b) all fees received by the Central Commission under this Act;

(c) all sums received by the Central Commission from such other sources as may be decided upon by the Central Government.

(2) The Fund shall be applied for meeting –

(a) the salary, allowances and other remuneration of Chairperson, Members, Secretary, officers and other employees of the Central Commission;

(b) the expenses of the Central Commission in discharge of its function under section 79;

(3) The Central Government may, in consultation with the Comptroller and Auditor-General of India, prescribe the manner of applying the Fund for meeting the expenses specified in clause (b) or clause (c) of sub-section (2).

Section 100. Accounts and Audit of Central Commission

(1) The Central Commission shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India.

(2) The accounts of the Central Commission shall be audited by the Comptroller and Auditor-General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Central Commission to the Comptroller and Auditor General of India.

(3) The Comptroller and Auditor-General of India and any person appointed by him in connection with the auditing of the accounts of the Central Commission under this Act shall have the same rights and privileges and authority in connection with such audit as the Comptroller and Auditor-General of India has in connection with the audit of the Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Central Commission.

(4) The accounts of the Central Commission, as certified by the Comptroller and Auditor- General of India or any other person appointed by him in this behalf, together with the audit report thereon, shall be forwarded annually to the Central Government and that Government shall cause the same to be laid, as soon as may be after it is received, before each House of Parliament.

Section 101. Annual Report of Central Commission

(1) The Central Commission shall prepare once every year, in such form and at such time as may be prescribed, an annual report giving a summary of its activities during the previous year and copies of the report shall be forwarded to the Central Government.

(2) A copy of the report received under sub-section (1) shall be laid, as soon as may be after it is received, before each House of Parliament.

Section 102. Grants and Loans by State Government

The State Government may, after due appropriation made by Legislature of a State in this behalf, make to the State Commission grants and loans of such sums of money as that Government may consider necessary.

Section 103. Establishment of Fund by State Government

(1) There shall be constituted a Fund to be called the State Electricity Regulatory Commission fund and there shall be credited thereto-

(a) any grants and loans made to the State Commission by the State Government under Section 102;

(b) all fees received by the State Commission under this Act;

(2) The Fund shall be applied for meeting –

(a) the salary, allowances and other remuneration of Chairperson, Members, Secretary, officers and other employees of the State Commission;

(b) the expenses of the State Commission in discharge of its function under Section 86; and

(3) The State Government may, in consultation with the Comptroller and Auditor-General of India, prescribe the manner of applying the Fund for meeting the expenses specified in clause (b) or clause (c) of sub-section (2).

Section 104. Establishment of Audit of State Government

(1) The State Commission shall maintain proper accounts and other relevant records and prepare annual statement of accounts in such forms as may be prescribed by the State Government in consultation with the Comptroller and Auditor-General of India.

(2) The Accounts of the State Commission shall be audited by the Comptroller and Auditor-General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the State Commission to the Comptroller and Auditor- General of India.

(3) The Comptroller and Auditor-General of India and any person appointed by him in connection with the audit of the accounts of the State Commission under this Act shall have the same rights and privileges and authority in connection with such audit as the Comptroller and Auditor-General of India generally 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 State Commission.

(4) The accounts of the State Commission, as certified by the Comptroller and Auditor-General of India or any other person appointed by him in this behalf, together with the audit report thereon shall be forwarded annually to the State Government and that Government shall cause the same to be laid , as soon as may be after it is received, before the State Legislature.

Section 105. Annual report of State Commission

(1) The State Commission shall prepare once every year in such form and at such time as may be prescribed, an annual report giving a summary of its activities during the previous year and copies of the report shall be forwarded to the State Government.

(2) A copy of the report received under sub-section ( 1 ) shall be laid, as soon as may be after it is received, before the State Legislature.

Section 106. Budget of Appropriate Commission

The Appropriate Commission shall prepare, in such form and at such time in each financial year as may be prescribed, its budget for the next financial year, showing the estimated receipts and expenditure of that Commission and forward the same to the Appropriate Government.

Section 107. Directions by Central Government

(1) In the discharge of its functions, the Central Commission shall be guided by such directions in matters of policy involving public interest as the Central Government may give to it in writing.

(2) If any question arises as to whether any such direction relates to a matter of policy involving public interest, the decision of the Central Government thereon shall be final.

Section 108. Directions by State Government

(1) In the discharge of its functions, the State Commission shall be guided by such directions in matters of policy involving public interest as the State Government may give to it in writing.

(2) If any question arises as to whether any such direction relates to a matter of policy involving public interest, the decision of the State Government thereon shall be final.

Section 109. Directions to Joint Commission

Notwithstanding anything contained in this Act, where any Joint Commission is established under section 83 –

(a) the Government of the State, for which the Joint Commission is established, shall be competent to give any direction under this Act only in cases where such direction relates to matter within the exclusive territorial jurisdiction of the State;

(b) the Central Government alone shall be competent to give any direction under this Act where such direction relates to a matter within the territorial jurisdiction of two or more States or pertaining to a Union territory if the participating Governments fail to reach an agreement or the participating States or majority of them request the Central Government to issue such directions.

Part XI – Appellate Tribunal For Electricity

Section 110. Establishment of Appellate Tribunal

The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Appellate Tribunal for Electricity to hear appeals against the orders of the adjudicating officer or the Appropriate Commission under this Act.

Section 111. Appeal to Appellate Tribunal

(1) Any person aggrieved by an order made by an adjudicating officer under this Act (except under section 127) or an order made by the Appropriate Commission under this Act may prefer an appeal to the Appellate Tribunal for Electricity:

Provided that any person appealing against the order of the adjudicating officer levying and penalty shall, while filling the appeal , deposit the amount of such penalty:

Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, it may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty.

(2) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the adjudicating officer or the Appropriate Commission is received by the aggrieved person and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed:

(4) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned adjudicating officer or the Appropriate Commission, as the case may be.

(6) The Appellate Tribunal may, for the purpose of examining the legality, propriety or correctness of any order made by the adjudicating officer or the Appropriate Commission under this Act, as the case may be, in relation to any proceeding, on its own motion or otherwise, call for the records of such proceedings and make such order in the case as it thinks fit.

Section 112. Composition of Appellate Tribunal

(1) The Appellate Tribunal shall consist of a Chairperson and three other Members.

(2) Subject to the provisions of this Act,-

(a) the jurisdiction of the Appellate Tribunal may be exercised by Benches thereof;

(b) a Bench may be constituted by the Chairperson of the Appellate Tribunal with two or more Members of the Appellate Tribunal as the Chairperson of the Appellate Tribunal may deem fit:

Provided that every Bench constituted under this clause shall include at least one Judicial Member and one Technical Member;

(c) the Benches of the Appellate Tribunal shall ordinarily sit at Delhi and such other places as the Central Government may, in consultation with the Chairperson of the Appellate Tribunal, notify;

(d) the Central Government shall notify the areas in relation to which each Bench of the Appellate Tribunal may exercise jurisdiction.

(3) Notwithstanding anything contained in sub-section (2), the Chairperson of the Appellate Tribunal may transfer a Member of the Appellate Tribunal from one Bench to another Bench.

Explanation.- For the purposes of this Chapter,-

(i) “ Judicial Member” means a Member of the Appellate Tribunal appointed as such under sub-clause (i) of caluse (b) of sub-section (1) of section 113, and includes the Chairperson of the Appellate Tribunal;

(ii) “ Technical Member” means a Member of the Appellate Tribunal appointed as such under sub-clause (ii) or sub-clause (iii) of clause (b) of subsection (1) of section 113.

Section 113. Qualifications for appointment of Chairperson and Member of the Appellate Tribunal

(1) A person shall not be qualified for appointment as the Chairperson of the Appellate Tribunal or a Member of the Appellate Tribunal unless he-

(a) in the case of the Chairperson of the Appellate Tribunal, is, or has been, a judge of the Supreme Court or the Chief Justice of a High Court; and

(b) in the case of a Member of the Appellate Tribunal,-

(i) is, or has been, or is qualified to be, a Judge of a High Court; or

(ii) is, or has been, a Secretary for at least one year in the Ministry or Department of the Central Government dealing with economic affairs or matters or infrastructure; or

(iii) is, or has been, a person of ability and standing, having adequate knowledge or experience in dealing with the matters relating to electricity generation, transmission and distribution and regulation or economics, commerce, law or management.

(2) The Chairperson of the Appellate Tribunal shall be appointed by the Central Government after consultation with the Chief Justice of India.

(3) The Members of the Appellate Tribunal shall be appointed by the Central Government on the recommendation of the Selection Committee referred to in section 78.

(4) Before appointing any person for appointment as Chairperson or other Member of the Appellate Tribunal, the Central Government shall satisfy itself that such person does not have any financial or other interest which is likely to affect prejudicially his functions as such Chairperson or Member.

Section 114. Term of office

The Chairperson of the Appellate Tribunal or a Member of the Appellate Tribunal shall hold office as such for a term of three years from the date on which he enters upon his office:

Provided that such Chairperson or other Member shall be eligible for reappointment for a second term of three years:

Provided further that no Chairperson of the Appellate Tribunal or Member of the Appellate Tribunal shall hold office as such after he has attained,-

(a) in the case of the Chairperson of the Appellate Tribunal , the age of seventy years;

(b) in the case of a Member of the Appellate Tribunal, the age of sixty-five years.

Section 115. Terms and conditions of service

The salary and allowances payable to, and the other terms and conditions of service of, the Chairperson of the Appellate Tribunal and Members of the Appellate Tribunal shall be such as may be prescribed by the Central Government :

Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson of the Appellate Tribunal or a Member of the Appellate Tribunal shall be varied to his disadvantage after appointment.

Section 116. Vacancies

If, for reason other than temporary absence, any vacancy occurs in the office of the Chairperson of the Appellate Tribunal or a Member of the Appellate Tribunal, the Central Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Appellate Tribunal from the stage at which the vacancy is filled.

Section 117. Resignation and removal

(1) The Chairperson of the Appellate Tribunal or a Member of the Appellate Tribunal may, by notice in writing under his hand addressed to the Central Government, resign his office:

Provided that the Chairperson of the Appellate Tribunal or a Member of the Appellate Tribunal shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of term of office, whichever is the earliest.

(2) The Chairperson of the Appellate Tribunal or a Member of the Appellate Tribunal shall not be removed from his office except by an order by the Central Government on the ground of proved misbehaviour or incapacity after an inquiry made by a judge of the Supreme Court as the Central Government may appoint for this purpose in which the Chairperson or a Member of the Appellate Tribunal concerned has been informed of the charges against him and given a reasonable opportunity of being heard in respect of such charges.

Section 118. Member to act as Chairperson in certain circumstances

(1) In the event of the occurrence of any vacancy in the office of the Chairperson of the Appellate Tribunal by reason of his death, resignation or otherwise, the senior-most Member of the Appellate Tribunal shall act as the Chairperson of the Appellate Tribunal until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.

(2) When the Chairperson of the Appellate Tribunal is unable to discharge his functions owing to absence, illness or any other cause, the seniormost Member of the Appellate Tribunal shall discharge the functions of the Chairperson of the Appellate Tribunal until the date on which the Chairperson of the Appellate Tribunal resumes his duties.

Section 119. Officers and other employees of Appellate Tribunal

(1) The Central Government shall provide the Appellate Tribunal with such officers and other employees as it may deem fit.

(2) The officers and other employees of the Appellate Tribunal shall discharge their functions under the general superintendence of the Chairperson of the Appellate Tribunal.

(3) The salaries and allowances and other terms and conditions of service of the officers and other employees of the Appellate Tribunal shall be such as may be prescribed by the Central Government. (5 of 1908)

Section 120. Procedure and powers of Appellate Tribunal

(1) The Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Appellate Tribunal shall have powers to regulate its own procedure.

(2) The Appellate Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or copy of such record or document from any office;

(e) issuing commissions for the examination of witnesses or documents;

(f) reviewing its decisions;

(g) dismissing a representation of default or deciding it ex parte;

(h) setting aside any order of dismissal or any representation for default or any order passed by it ex parte;

(i) any other matter which may be prescribed by the Central Government.

(3) An order made by the Appellate Tribunal under this Act shall be executable by the Appellate Tribunal as a decree of civil court and, for this purpose, the Appellate Tribunal shall have all the powers of a civil court.

(4) Notwithstanding anything contained in sub-section (3), the Appellate Tribunal may transmit any order made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by that court.

(5) All proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code and the Appellate Tribunal shall be deemed to be a civil court for the purposes of section 345 and 346 of the Code of Criminal Procedure, 1973 .

Section 121. ¹Power of Appellate Tribunal

The Chairperson of the Appellate Tribunal shall exercise general power of super-intendance and control over the Appropriate Commission.

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Subs. by Act 57 of 2003, Sec. 4 (w.e.f. 27th January, 2004).

Section 122. Distribution of business amongst Benches and transfer of cases from one Bench to another Bench

(1) Where Benches are constituted, the Chairperson of the Appellate Tribunal may, from time to time, by notification, make provisions as to the distribution of the business of the Appellate Tribunal amongst the Benches and also provide for the matters which may be dealt with by each Bench.

(2) On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairperson of the Appellate Tribunal may transfer any case pending before one Bench, for disposal, to any other Bench.

Section 123. Decision to be by majority

If the Members of the Appellate Tribunal of a Bench consisting of two Members differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson of the Appellate Tribunal who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of the Members of the Appellate Tribunal who have heard the case, including those who first heard it.

124. Right of appellant to take assistance of legal practitioner and of Appropriate Commission to appoint presenting officers

(1) A person preferring an appeal to the Appellate Tribunal under this Act may either appear in person or take the assistance of a legal practitioner of his choice to present his case before the Appellate Tribunal, as the case may be.

(2) The Appropriate Commission may authorise one or more legal practitioners or any of its officers to act as presenting officers and every person so authorised may present the case with respect to any appeal before the Appellate Tribunal, as the case may be.

Section 125. Appeal to Supreme Court

Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure,1908:

Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.

Part XII – Investigation And Enforcement

Section 126. Assessment

(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

(3) ¹The person, on whom a notice has been served under subsection (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person.

(4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:

²[*****]

(5) ³If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorized use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.

(6) The assessment under this section shall be made at a rate equal to one-and-half times the tariff rates applicable for the relevant category of services specified in sub-section (5).

Explanation.- For the purposes of this section,-

(a) “ assessing officer” means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government ;

(b) “ unauthorised use of electricity” means the usage of electricity –

(i) by any artificial means; or

(ii) by a means not authorised by the concerned person or authority or licensee; or

(iii) through a tampered meter; or

(iv) for the purpose other than for which the usage of electricity was authorised.

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1 Subs. by Act 26 of 2007, Sec.11 (w.e.f. 15th June 2007).

2 The words “Provided that in case the person deposits the assessed amount he shall not be subjected to any further liability or any action by any authority whatsoever” omitted by Act 26 of 2007, Sec.11 (w.e.f. 15th June 2007).

3 Subs. by Act 26 of 2007, Sec.11 (w.e.f. 15th June 2007).

Section 127. Appeal to Appellate Authority

(1) Any person aggrieved by a final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed.

(2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to one third of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.

(3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant.

(4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final.

(5) No appeal shall lie to the appellate authority referred to in subsection (1) against the final order made with the consent of the parties.

(6) When a person default in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent per annum compounded every six months.

Section 128. Investigation of certain matters

(1) The Appropriate Commission may, on being satisfied that a licensee has failed to comply with any of the conditions of licence or a generating company or a licensee has failed to comply with any of the provisions of this Act or rules or regulations made thereunder, at any time, by order in writing, direct any person (hereafter in this section referred to as “ Investigating Authority” ) specified in the order to investigate the affairs of any generating company or licensee and to report to that Commission on any investigation made by such Investigating Authority:

Provided that the Investigating Authority may, wherever necessary,employ any auditor or any other person for the purpose of assisting him in any investigation under this section.

(2) Notwithstanding anything to the contrary contained in section 235 of the Companies Act, 1956, the Investigating Authority may, at any time, and shall, on being directed so to do by the Appropriate Commission, cause an inspection to be made, by one or more of his officers, of any licensee or generating company and his books of account; and the Investigating Authority shall supply to the licensee or generating company, as the case may be, a copy of his report on such inspection.

(3) It shall be the duty of every manager, managing director or other officer of the licensee or generating company, as the case may be, to produce before the Investigating Authority directed to make the investigation under subsection (1), or inspection under sub-section (2), all such books of account, registers and other documents in his custody or power and to furnish him with any statement and information relating to the affairs of the licensee or generating company, as the case may be, as the said Investigating Authority may require of him within such time as the said Investigating Authority may specify.

(4) Any Investigating Authority, directed to make an investigation under sub-section (1), or inspection under sub-section (2), may examine on oath any manager, managing director or other officer of the licensee or generating company, as the case may be, in relation to his business and may administer oaths accordingly.

(5) The Investigating Authority, shall, if it has been directed by the Appropriate Commission to cause an inspection to be made, and may, in any other case, report to the Appropriate Commission on any inspection made under this section.

(6) On receipt of any report under sub-section (1) or sub-section (5), the Appropriate Commission may, after giving such opportunity to the licensee or generating company, as the case may be, to make a representation in connection with the report as in the opinion of the Appropriate Commission, seems reasonable, by order in writing—

(a) require the licensee or the generating company to take such action in respect of any matter arising out of the report as the Appropriate Commission may think fit; or

(b) cancel the licenece; or

(7) The Appropriate Commission may, after giving reasonable notice to the licensee or the generating company, as the case may be, publish the report submitted by the Investigating Authority under sub-section (5) or such portion thereof as may appear to it to be necessary.

(8) The Appropriate Commission may specify the minimum information to be maintained by the licensee or the generating company in their books, the manner in which such information shall be maintained, the checks and

other verifications to be adopted by licensee or the generating company in that connection and all other matters incidental thereto as are, in its opinion, necessary to enable the Investigating Authority to discharge satisfactorily its functions under this section.

Explanation.- For the purposes of this section, the expression “ licensee or the generating company” shall include in the case of a licensee incorporated in India—

(a) all its subsidiaries formed for the purpose of carrying on the business of generation or transmission or distribution or trading of electricity exclusively outside India; and

(b) all its branches whether situated in India or outside India.

(9) All expenses of, and incidental to, any investigation made under this section shall be defrayed by the licensee or generating company, as the case may be, and shall have priority over that debts due from the licensee or the generating company and shall be recoverable as an arrear of land revenue.

Section 129. Orders for securing compliance

(1) Where the Appropriate Commission, on the basis of material in its possession, is satisfied that a licensee is contravening, or is likely to contravene, any of the conditions mentioned in his licence or conditions for grant of exemption or the licensee or the generating company has contravened or is likely to contravene any of the provisions of this Act, it shall, by an order, give such directions as may be necessary for the purpose of securing compliance with that condition or provision.

(2) While giving direction under sub-section (1), the Appropriate Commission shall have due regard to the extent to which any person is likely to sustain loss or damage due to such contravention.

Section 130. Procedure for issuing directions by Appropriate Commission

The Appropriate Commission, before issuing any direction under section 129, shall–

(a) serve notice in the manner as may be specified to the concerned licensee or generating company;

(b) publish the notice in the manner as may be specified for the purpose of bringing the matters to the attention of persons, likely to be affected,or affected;

(c) Consider suggestions and objections from the concerned licensee or generating company and the persons, likely to be affected, or affected.

Part XIII – Reorganisation Of Board

Section 131. Vesting of property of Board in State Government

(1) With effect from the date on which a transfer scheme, prepared by the State Government to give effect to the objects and purposes of this Act, is published or such further date as may be stipulated by the State Government (hereafter in this Part referred to as the effective date), any property, interest in property, rights and liabilities which immediately before the effective date belonged to the State Electricity Board (hereafter referred to as the Board) shall vest in the State Government on such terms as may be agreed between the State Government and the Board.

(2) Any property, interest in property, rights and liabilities vested in the State Government under sub-section (1) shall be re-vested by the State Government in a Government company or in a company or companies, in accordance with the transfer scheme so published along with such other property, interest in property, rights and liabilities of the State Government as may be stipulated in such scheme, on such terms and conditions as may be agreed between the State Government and such company or companies being State Transmission Utility or generating company or transmission licensee or distribution licensee, as the case may be :

Provided that the transfer value of any assets transferred hereunder shall be determined, as far as may be, based on the revenue potential of such assets at such terms and conditions as may be agreed between the State Government and the State Transmission Utility or generating company or transmission licensee or distribution licensee, as the case may be.

(3) Notwithstanding anything contained in this section, where,-

(a) the transfer scheme involves the transfer of any property or rights to any person or undertaking not wholly owned by the State Government, the scheme shall give effect to the transfer only for fair value to be paid by the transferee to the State Government;

(b) a transaction of any description is effected in pursuance of a transfer scheme, it shall be binding on all persons including third parties and even if such persons or third parties have not consented to it.

(4) The State Government may, after consulting the Government company or company or companies being State Transmission Utility or generating company or transmission licensee or distribution licensee, referred to in sub-section (2) (hereinafter referred to as the transferor), require such transferor to draw up a transfer scheme to vest in a transferee being any other generating company or transmission licensee or distribution licensee, the property, interest in property, rights and liabilities which have been vested in the transferor under this section, and publish such scheme as statutory transfer scheme under this Act.

(5) A transfer scheme under this section may-

(a) provide for the formation of subsidiaries, joint venture companies or other schemes of division, amalgamation, merger, reconstruction or arrangements which shall promote the profitability and viability of the resulting entity, ensure economic efficiency, encourage competition and protect consumer interests;

(b) define the property, interest in property, rights and liabilities to be allocated -

(i) by specifying or describing the property, rights and liabilities in question; or

(ii) by referring to all the property, interest in property, rights and liabilities comprised in a described part of the transferor’s undertaking; or

(iii) partly in one way and partly in the other;

(c) provide that any rights or liabilities stipulated or described in the scheme shall be enforceable by or against the transferor or the transferee;

(d) impose on the transferor an obligation to enter into such written agreements with or execute such other instruments in favour of any other subsequent transferee as may be stipulated in the scheme;

(e) mention the functions and duties of the transferee;

(f) make such supplemental, incidental and consequential provisions as the transferor considers appropriate including provision stipulating the order as taking effect; and

(g) provide that the transfer shall be provisional for a stipulated period.

(6) All debts and obligations incurred, all contracts entered into and all matters and things engaged to be done by the Board, with the Board or for the Board, or the State Transmission Utility or generating company or transmission licensee or distribution licensee, before a transfer scheme becomes effective shall, to the extent specified in the relevant transfer scheme, be deemed to have been incurred, entered into or done by the Board, with the Board or for the State Government or the transferee and all suits or other legal proceedings instituted by or against the Board or transferor, as the case may be, may be continued or instituted by or against the State Government or concerned transferee, as the case may be.

(7) The Board shall cease to be charged with and shall not perform the functions and duties with regard to transfers made on and after the effective date.

Explanation.- For the purpose of this Part, -

(a) “Government company” means a Government Company formed and registered under the Companies Act, 1956.

(b) “company” means a company to be formed and registered under the Companies Act, 1956 to undertake generation or transmission or distribution in accordance with the scheme under this Part.

Section 132. Use of proceeds of sale or transfer of the Board etc.

In the event that a Board or any utility owned or controlled by the Appropriate Government is sold or transferred in any manner to a person who is not owned or controlled by the Appropriate Government, the proceeds from such sale or transfer shall be utilised in priority to all other dues in the following order, namely :-

(a) dues (including retirement benefits due) to the officers and employees of such Board or utility, who have been affected by the aforesaid sale or transfer;

(b) payment of debt or other liabilities of the transferor as may be required by the existing loan covenants

Section 133. Provisions relating to officers and employees

(1) The State Government may, by a transfer scheme, provide for the transfer of the officers and employees to the transferee on the vesting of properties, rights and liabilities in such transferee as provided under section 131.

(2) Upon such transfer under the transfer scheme, the personnel shall hold office or service under the transferee on such terms and conditions as may be determined in accordance with the transfer scheme:

Provided that such terms and conditions on the transfer shall not in any way be less favourable than those which would have been applicable to them if there had been no such transfer under the transfer scheme:

Provided further that the transfer can be provisional for a stipulated period.

Explanation: – For the purposes of this section and the transfer scheme, the expression “officers and employees” shall mean all officers and employees who on the date specified in the scheme are the officers and employees of the Board or transferor, as the case may be.

Section 134. Payment of compensation or damages on transfer

Notwithstanding anything contained in the Industrial Disputes Act, 1947 or any other law for the time being in force and except for the provisions made in this Act, the transfer of the employment of the officers and employees referred to in sub-section (1) of section 133 shall not entitle such officers and employees to any compensation or damages under this Act, or any other Central or State law, save as provided in the transfer scheme.

Part XIV – Offences And Penalties

Section 135. Theft of Electricity

(1) ¹Whoever, dishonestly, –

(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or

(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or

(c)damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity,

(d) uses electricity through a tempered meter; or

(e) uses electricity for the purpose other than for which the usage of electricity was authorised,

Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -

(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;

(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:

Provided further that if it is proved that any artificial means or means not authorized by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.

Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted bstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:

Provided also that if it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.

(1A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity:

Provided that only such officer of the licensee or supplier, as authorized for the purpose by the Appropriate Commission or any other officer of the licensee or supplier, as the case may be, of the rank higher than the rank so authorised shall disconnect the supply line of electricity:

Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty four hours from the time of such disconnection:

Provided also that the licensee or supplier, as the case may be, on deposit or payment of the assessed amount or electricity charges in accordance with the provisions of this Act, shall, without prejudice to the obligation to lodge the complaint as referred to in the second proviso to this clause, restore the supply line of electricity within forty-eight hours of such deposit or payment.]

(2) ²[Any officer authorized in this behalf by the State Government may be,] authorized in this behalf by the State Government may- -

(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been, is being, or is likely to be, used unauthorisedly;

(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, is being, or is likely to be, used for unauthorized use of electricity;

(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.

(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:

Provided that no inspection, search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.

(4) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure shall apply, as far as may be, to searches and seizure under this Act.

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1 Subs. by Act 26 of 2007, Sec. 13 for the words “Any officer authorized” (w.e.f. 15th June 2007)

2 Subs. by Act 57 of 2003, Sec. 5 for the words “has been or is being or is likely to be” (w.e.f. 27th January, 2004).

Section 136. Theft of electric lines and materials

(1) Whoever, dishonestly –

(a) cuts or removes or takes way or transfers any electric line, material or meter from a tower, pole, any other installation or place of installation or any other place, or site where it may be rightfully or lawfully stored, deposited, kept, stocked, situated or located including during transportation, without the consent of the licensee or the owner, as the case may be, whether or not the act is done for profit or gain; or

(b) stores, possesses or otherwise keeps in his premises, custody or control, any electric line, material or meter without the consent of the owner, whether or not the act is committed for profit or gain; or

(c) loads, carries, or moves from one place to another any electric line, material or meter without the consent of its owner, whether or not the act is done for profit or gain, done for profit or gain, is said to have committed an offence of theft of electric lines and materials, and shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

(2) If a person, having been convicted of an offence punishable under sub-section (1) is again guilty of an offence punishable under that subsection, he shall be punishable for the second or subsequent offence for a term of imprisonment which shall not be less than six months but which may extend to five years and shall also be liable to fine which shall not be less than ten thousand rupees.

Section 137. Punishment for receiving stolen property

Whoever, dishonestly receives any stolen electric lines or materials knowing or having reasons to believe the same to be stolen property, shall be punishable with imprisonment of either description for a term which may extend to three years or with fine or with both.

Section 138. Interference with meters or works of licensee

(1) Whoever, -

(a) unauthorisedly connects any meter, indicator or apparatus with any electric line through which electricity is supplied by a licensee or disconnects the same from any such electric line; or

(b) unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected; or

(c) lays or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee; or

(d) maliciously injures any meter, indicator, or apparatus belonging to a licensee or willfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering, shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and , in the case of a continuing offence, with a daily fine which may extend to five hundred rupees; and if it is proved that any means exist for making such connection as is referred to in clause (a) or such re-connection as is referred to in clause (b), or such

communication as is referred to in clause (c), for causing such alteration or prevention as is referred to in clause (d), and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection, reconnection, communication, alteration, prevention or improper use, as the case may be, has been knowingly and willfully caused by such consumer.

Section 139. ¹Negligently breaking or damaging works

Whoever, negligently causes electricity to be wasted or diverted or negligently breaks, injures, throws down or damages any material connected with the supply of electricity, shall be punishable with fine which may extend to ten thousand rupees.

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Subs. by Act 57 of 2003, Sec.6 for Sections 139 and 140 (w.e.f. 27th January 2004).

Section 140. Penalty for maliciously wasting electricity or injuring works

Whoever, maliciously causes electricity to be wasted or diverted, or , with intent to cut off the supply of electricity, cuts or injures, or attempts to cut or injure, any electric supply line or works, shall be punishable with fine which may extend to ten thousand rupees.

Section 141. Extinguishing public lamps

Whoever, maliciously extinguishes any public lamp shall be punishable with fine which may be extend to two thousand rupees.

Section 142. Punishment for non-compliance of directions by Appropriate Commission

In case any complaint is filed before the Appropriate Commission by any person or if that Commission is satisfied that any person has contravened any provisions of this Act or rules or regulations made thereunder, or any direction issued by the Commission, the Appropriate Commission may after giving such person an opportunity of being heard in the matter, by order in writing, direct that, without prejudice to any other penalty to which he may be liable under this Act, such person shall pay, by way of penalty, which shall not exceed one lakh rupees for each contravention and in case of a continuing failure with an additional penalty which may extend to six thousand rupees for every day during which the failure continues after contravention of the first such direction.

Section 143. Power to adjudicate

(1) For the purpose of adjudging under this Act, the Appropriate Commission shall appoint any of its Members to be an adjudicating officer for holding an inquiry in such manner as may be prescribed by the Appropriate Government ,after giving any person concerned a reasonable opportunity of being heard for the purpose of imposing any penalty.

(2) While holding an inquiry, the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or produce any document which in the opinion of the adjudicating officer, may be useful for or relevant to the subject-matter of the inquiry, and if, on such inquiry, he is satisfied that the person has failed to comply with the provisions of section 29 or section 33 or section 43, he may impose such penalty as he thinks fit in accordance with the provisions of any of those sections.

Section 144. Factors to be taken into account by adjudicating officer

While adjudicating the quantum of penalty under section 29 or section 33 or section 43, the adjudicating officer shall have due regard to the following factors, namely:-

(a) the amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of the default;

(b) the repetitive nature of the default.

Section 145. Civil court not to have jurisdiction

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

Section 146. Punishment for non-compliance of orders or directions

Whoever, fails to comply with any order or direction given under this Act, within such time as may be specified in the said order or direction or contravenes or attempts or abets the contravention of any of the provisions of this Act or any rules or regulations made thereunder, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one lakh rupees, or with both in respect of each offence and in the case of a continuing failure, with an additional fine which may extend to five thousand rupees for every day during which the failure continues after conviction of the first such offence.

¹[Provided that nothing contained in this section shall apply to the orders, instructions or directions issued under section 121.]

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Ins. by Act 57 of 2003, Sec. 7 (w.e.f. 27th January 2004).

Section 147. Penalties not to affect other liabilities

The penalties imposed under this Act shall be in addition to, and not in derogation of, any liability in respect of payment of compensation or, in the case of a licensee, the revocation of his licence which the offender may have incurred.

Section 148. Penalty where works belong to Government

The provisions of this Act shall, so far as they are applicable, be deemed to apply also when the acts made punishable thereunder are committed in the case of electricity supplied by or of works belonging to the Appropriate Government.

Section 149. 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 having committed the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of having committed such offence and shall be liable to be proceeded against and punished accordingly.

Explanation. – For the purpose 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 150. Abatement

(1) Whoever abets an offence punishable under this Act, shall, notwithstanding anything contained in the Indian Penal Code, be punished with the punishment provided for the offence. (45 of 1860.)

(2) Without prejudice to any penalty or fine which may be imposed or prosecution proceeding which may be initiated under Act or any other law for the time being in force, if any officer or other employee of the Board or the licensee enters intro or acquiesces in any agreement to do, abstains from doing, permits, conceals or connives at any act or thing whereby any theft of electricity is committed, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

¹[(3) Notwithstanding anything contained in sub-section (1) of section 135, subsection (1) of section136, section 137 and section 138, the licence or certificate of competency or permit or such other authorisation issued under the rules made or deemed to have been made under this Act to any person who acting as an electrical contractor, supervisor or worker abets the commission of an offence punishable under sub-section (1) of section 135, sub-section (1) of section 136, section 137, or section 138, on his conviction for such abetment, may also be cancelled by the licensing authority:

Provided that no order of such cancellation shall be made without giving such person an opportunity of being heard.

Explanation.– For the purposes of this sub-section, “licencing authority” means the officer who for the time being in force is issuing or renewing such licence or certificate of competency or permit or such other authorisation.]

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Ins. by Act 26 of 2007, Sec.14 (w.e.f. 15th June 2007).

Section 151. Cognizance of offences

No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose.

¹[Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under section 173 of the Code of Criminal Procedure, 1973:

Provided further that a special court constituted under section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.]

²[151A. For the purposes of investigation of an offence punishable under this Act, the police officer shall have all the powers as provided in Chapter XII of the Code of Criminal Procedure, 1973.

151B. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under sections 135 to 140 or section 150 shall be cognizable and non-bailable.]

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1 Ins. by Act 26 of 2007, Sec.15 (w.e.f. 15th June 2007).

2 Ins. by Act 26 of 2007, Sec.16 (w.e.f. 15th June 2007).

Section 152. Compounding of offences

(1)Notwithstanding anything contained in the Code of Criminal Procedure 1973, the Appropriate Government or any officer authorized by it in this behalf may accept from any consumer or person who committed or who is reasonably suspected of having committed an offence of theft of electricity punishable under this Act, a sum of money by way of compounding of the offence as specified in the Table below: (2 of 1974.)

TABLE ______________________________________________________
Nature of Service ________________________	Rate at which the sum of money for Compounding to be collected per Kilowatt(KW)/Horse Power(HP) or part thereof for Low Tension (LT) supply and per Kilo Volt Ampere(KVA) of contracted demand for High Tension (HT) ______________________________
(1) ________________________	(2) ______________________________
1. Industrial Service	twenty thousand rupees;
2. Commercial Service	ten thousand rupees;
3. Agricultural Service	two thousand rupees;
4. Other Services four	thousand rupees:
___________________________	__________________________________

Provided that the Appropriate Government may, by notification in the Official Gazette, amend the rates specified in the Table above.

(2) On payment of the sum of money in accordance with sub-section (1), any person in custody in connection with that offence shall be set at liberty and no proceedings shall be instituted or continued against such consumer or person in any criminal court.

(3) The acceptance of the sum of money for compounding an offence in accordance with sub-section (1) by the Appropriate Government or an officer authorised in this behalf empowered in this behalf shall be deemed to amount to an acquittal within the meaning of section 300 of the Code of Criminal Procedure, 1973.

(4)The Compounding of an offence under sub-section (1) shall be allowed only once for any person or consumer.

Part XV – Special Courts

Section 153. Constitution of Special Courts

(1) The State Government may, for the purposes of providing speedy trial of offences referred to in ¹[sections 135 to 140 and section 150], by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas, as may be specified in the notification.

(2) A Special Court shall consist of a single Judge who shall be appointed by the State Government with the concurrence of the High Court.

(3) A person shall not be qualified for appointment as a Judge of a Special Court unless he was, immediately before such appointment, an Additional District and Sessions Judge.

(4) Where the office of the Judge of a Special Court is vacant, or such Judge is absent from the ordinary place of sitting of such Special Court, or he is incapacitated by illness or otherwise for the performance of his duties, any urgent business in the Special Court shall be disposed of –

(a) by a Judge, if any, exercising jurisdiction in the Special Court;

(b) where there is no such other Judge available, in accordance with the direction of District and Sessions Judge having jurisdiction over the ordinary place of sitting of Special Court, as notified under sub- section(1).

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Subs. by Act 26 of 2007, Sec.17 for the words “sections 135 to 139” (w.e.f. 15th June 2007).

Section 154. Procedure and power of Special Court

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under sections 135 to 139 shall be triable only by the Special Court within whose jurisdiction such offence has been committed.

(2) Where it appears to any court in the course of any inquiry or trial that an offence punishable under sections 135 to 139 in respect of any offence that the case is one which is triable by a Special Court constituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act : (2 of 1974)

Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any court in the case of presence of the accused before the transfer of the case to any Special Court :

Provided further that if such Special Court is of opinion that further examination, cross-examination and re-examination of any of the witnesses whose evidence has already been recorded, is required in the interest of justice, it may resummon any such witness and after such further examination, cross-examination or re-examination, if any, as it may permit, the witness shall be discharged.

(3) The Special Court may, notwithstanding anything contained in subsection (1) of section 260 or section 262 of the Code of Criminal Procedure, 1973, try the offence referred to in sections 135 to 139 in a summary way in accordance with the procedure prescribed in the said Code and the provisions of sections 263 to 265 of the said Code shall, so far as may be, apply to such trial :

Provided that where in the course of a summary trial under this subsection, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence:

Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.

(4) A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any offence tender pardon to such person on condition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof, and any pardon so tendered shall , for the purposes of section 308 of the Code of Criminal Procedure,1973, be deemed to have been tendered under section 307 thereof.

(5) The Special Court may determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined which ever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court.

(6) In case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment.

Explanation. - For the purposes of this section, “ civil liability” means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in sections 135 to 139.

155. Special Court to have powers of court of session

Save as otherwise provided in this Act, the Code of Criminal Procedure, 1973, in so far as they are not inconsistent with the provisions of this Act, shall apply to the proceedings before the Special Court and for the purpose of the provisions of the said enactments, the Special Court shall be deemed to be a Court of Session and shall have all powers of a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor.

Section 156. Appeal and revision

The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973, as if the Special Court within the local limits of the jurisdiction of the High Court is a District Court, or as the case may be , the Court of Session , trying cases within the local limits of jurisdiction of the High Court.

Section 157. Review

The Special Court may , on a petition or otherwise and in order to prevent miscarriage of justice, review its judgment or order passed under section 154, but no such review petition shall be entertained except on the ground that it was such order passed under a mistake of fact, ignorance of any material fact or any error apparent on the face of the record :

Provided that the Special Court shall not allow any review petition and set aside its previous order or judgment without hearing the parties affected.

Explanation.- For the purpose of this Part, “Special Courts” means the Special Courts constituted under sub-section (1) of section 153.

Part XVI – Dispute Resolution

Section 158. Arbitration

Where any matter is, by or under this Act, directed to be determined by arbitration, the matter shall, unless it is otherwise expressly provided in the licence of a licensee, be determined by such person or persons as the Appropriate Commission may nominate in that behalf on the application of either party; but in all other respects the arbitration shall be subject to the provisions of the Arbitration and Conciliation Act, 1996.

Part XVII – Other Provision

Section 159. Protection of railways, highways, airports and canals, docks, wharfs and piers

No person shall, in the generation, transmission, distribution, supply or use of electricity, in any way injure any railway, highway, airports, tramway, canal or water-way or any dock, wharf or pier vested in or controlled by a local authority, or obstruct or interfere with the traffic on any railway, airway, tramway, canal or water-way.

Section 160. Protection of telegraphic, telephonic and electric signalling lines

(1) Every person generating, transmitting, distributing, supplying or using electricity (hereinafter in this section referred to as the “operator”) shall take all reasonable precautions in constructing, laying down and placing his electric lines, electrical plant and other works and in working his system, so as not injuriously to affect, whether by induction or otherwise, the working of any wire or line used for the purpose of telegraphic, telephone or electric signalling communication, or the currents in such wire or line.

(2) Where any difference or dispute arises between the operator, and the telegraph authority as to whether the operator has constructed, laid down or placed his electric lines, electrical plant or other works, or worked his system, in contravention of sub-section (1), or as to whether the working of any wire, line or current is or is not injuriously affected thereby, the matter shall be referred to the Central Government and the Central Government, unless it is of opinion that the wire or line has been placed in unreasonable proximity to the electric lines, electrical plant or works of the operator after the construction of such lines, plant or works, may direct the operator to make such alterations in, or additions to, his system as may be necessary in order to comply with the provisions of this section, and the operator shall

make such alterations or additions accordingly:

Provided that nothing in this sub-section shall apply to the repair, renewal or amendment of any electric line or electrical plant so long as the course of the electric line or electrical plant and the amount and nature of the electricity transmitted thereby are not altered.

(3) Where the operator makes default in complying with the requirements of this section, he shall make full compensation for any loss or damage incurred by reason thereof, and, where any difference or dispute arises as to the amount of such compensation, the matter shall be determined by arbitration.

Explanation. - For the purposes of this section, a telegraph line shall be deemed to be injuriously affected if telegraphic, telephonic or electric signalling communication by means of such line is, whether through induction or otherwise, prejudicially interfered with by an electric line , electrical plant or other work or by any use made thereof.

Section 161. Notice of accidents and inquiries

(1) If any accident occurs in connection with the generation, transmission, distribution, supply or use of electricity in or in connection with, any part of the electric lines or electrical plant of any person and the accident results or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person shall give notice of the occurrence and of any such loss or injury actually caused by the accident, in such form and within such time as may be prescribed, to the Electrical Inspector or such other person as aforesaid and to such other authorities as the Appropriate Government may by general or special order, direct.

(2) The Appropriate Government may, if it thinks fit, require any Electrical Inspector, or any other person appointed by it in this behalf, to inquire and report-

(a) as to the cause of any accident affecting the safety of the public, which may have been occasioned by or in connection with, the generation, transmission, distribution, supply or use of electricity, or

(b) as to the manner in, and extent to, which the provisions of this Act or rules and regulations made thereunder or of any licence, so far as those provisions affect the safety of any person, have been complied with.

(3) Every Electrical Inspector or other person holding an inquiry under sub-section (2) shall have all the powers of a civil court under the Code of Civil Procedure, 1908 for the purpose of enforcing the attendance of witnesses and compelling the production of documents and material objects, and every person required by an Electrical Inspector be legally bound to do so within the meaning of section 176 of the Indian Penal Code.

Section 162. Appointment of Chief Electrical Inspector and Electrical Inspector

(1)The Appropriate Government may, by notification, appoint duly qualified persons to be Chief Electrical Inspector or Electrical Inspectors and every such Inspector so appointed shall exercise the powers and perform the functions of a Chief Electrical Inspector or an Electrical Inspector under this Act and exercise such other powers and perform such other functions as may be prescribed within such areas or in respect of such class of works and electric installations and subject to such restrictions as the Appropriate Government may direct.

(2) In the absence of express provision to the contrary in this Act, or any rule made thereunder, an appeal shall lie from the decision of a Chief Electrical Inspector or an Electrical Inspector to the Appropriate Government or if the Appropriate Government, by general or special order so directs, to an Appropriate Commission.

Section 163. Power for licensee to enter premises and to remove fittings or other apparatus of licensee

(1) A licensee or any person duly authorised by a licence may, at any reasonable time, and on informing the occupier of his intention, enter any premises to which electricity is, or has been, supplied by him, of any premises or land, under, over, along, across, in or upon which the electric supply-lines or other works have been lawfully placed by him for the purpose of –

(a) inspecting, testing, repairing or altering the electric supply lines, meters, fittings, works and apparatus for the supply of electricity belonging to the licensee; or

(b) ascertaining the amount of electricity supplied or the electrical quantity contained in the supply; or

(c) removing where a supply of electricity is no longer required, or where the licensee is authorised to take away and cut off such supply, any electric supply-lines, meters, fittings, works or apparatus belonging to the licensee.

(2) A licensee or any person authorised as aforesaid may also, in pursuance of a special order in this behalf made by an Executive Magistrate and after giving not less than twenty-four hours notice in writing to the occupier, -

(a) enter any premises or land referred to in sub-section (1) for any of the purposes mentioned therein;

(b) enter any premises to which electricity is to be supplied by him, for the purpose of examining and testing the electric wires fittings, works and apparatus for the use of electricity belonging to the consumer.

(3) Where a consumer refuses to allow a licensee or any person authorised as aforesaid to enter his premises or land in pursuance of the provisions of sub-section (1) or, sub-section (2), when such licensee or person has so entered, refuses to allow him to perform any act which he is authorised by those subsections to perform, or fails to give reasonable facilities for such entry or performance, the licensee may, after the expiry of twenty-four hours from the service of a notice in writing on the consumer, cut off the supply to the consumer for so long as such refusal or failure continues, but for no longer.

Section 164. Exercise of powers of Telegraph Authority in certain cases

The Appropriate Government may, by order in writing, for the placing of electric lines or electrical plant for the transmission of electricity or for the purpose of telephonic or telegraphic communications necessary for the proper co-ordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying electricity under this Act, subject to such conditions and restrictions, if any, as the Appropriate Government may think fit to impose and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph authority possesses under that Act with respect to the placing of telegraph

authority possesses under that Act with respect to the placing of telegraph lines and posts for the purposes of a telegraph established or maintained, by the Government or to be so established or maintained.

Section 165. Amendment of Sections 40 and 41 of Act 1 of 1894

(1) In section 40, sub-section (1) of clause (b) and section 41, subsection (5) of the Land Acquisition Act, 1894, the term “work” shall be deemed to include electricity supplied or to be supplied by means of the work to be constructed. (1 of 1894)

(2) The Appropriate Government may, on recommendation of the Appropriate Commission in this behalf, if it thinks fit, on the application of any person, not being a company desirous of obtaining any land for its purposes, direct that he may acquire such land under the provisions of the Land Acquisition Act, 1894 in the same manner and on the same conditions as it might be acquired if the person were a company. (1 of 1894)

Part VIII – Miscellaneous

Section 166. Coordination Forum

(1) The Central Government shall constitute a Coordination Forum consisting of the Chairperson of the Central Commission and Members thereof, the Chairperson of the Authority, representatives of generating companies and transmission licensees engaged in inter-State transmission of electricity for smooth and coordinated development of the power system in the country.

(2) The Central Government shall also constitute a forum of regulators consisting of the Chairperson of the Central Commission and Chairpersons of the State Commissions.

(3) The Chairperson of the Central Commission shall be the Chairperson of the Forum of regulators referred to in sub-section (2).

(4) The State Government shall constitute a Coordination Forum consisting of the Chairperson of the State Commission and Members thereof representatives of the generating companies, transmission licensee and distribution licensees engaged in generation, transmission and distribution of electricity in that State for smooth and coordinated development of the power system in the State.

(5) There shall be a committee in each district to be constituted by the Appropriate Government -

(a) to coordinate and review the extension of electrification in each district;

(b) to review the quality of power supply and consumer satisfaction;

Section 167. Exemption of electric lines or electrical plants from attachment in certain cases

Where any electric lines or electrical plant, belonging to a licensee are placed in or upon any premises or land not being in the possession of the licensee, such electric lines or electrical plant shall not be liable to be taken in execution under any process of any civil court or in any proceedings in insolvency against the person in whose possession the same may be.

Section 168. Protection of action taken in good faith

No suit, prosecution or other proceeding shall lie against the Appropriate Government or Appellate Tribunal or the Appropriate Commission or any officer of Appropriate Government, or any Member, Officer or other employees of the Appellate Tribunal or any Members, officer or other employees of the Appropriate Commission or the assessing officer or any public servant for anything done or in good faith purporting to be done under this Act or the rules or regulations made thereunder.

Section 169. Members, officers, etc. of Appellate Tribunal, Appropriate Commission to be public servants

The Chairperson, Members, officers and other employees of the Appellate Tribunal and the Chairperson, Members, Secretary, officers and other employees of the Appropriate Commission and the assessing officer referred to in section 126 shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act to be public servants within the meaning of section 21 of the Indian Penal Code.

Section 170. Recovery of penalty payable under Act

Any penalty payable by a person under this Act, if not paid, may be recovered as if it were an arrear of land revenue.

Section 171. Service of notices, orders or documents

(1) Every notice, order or document by or under this Act required, or authorised to be addressed to any person may be served on him by delivering the same after obtaining signed acknowledgement receipt therefor or by registered post or such means of delivery as may be prescribed -

(a) where the Appropriate Government is the addressee, at the office of such officer as the Appropriate Government may prescribe in this behalf;

(b) where the Appropriate Commission is the addressee, at the office of the Appropriate Commission;

(c) where a company is the addressee, at the registered office of the company or, in the event of the registered office of the company not being in India, at the head office of the company in India;

(d) where any other person is the addressee, at the usual or last known place of abode or business of the person.

(2) Every notice, order or document by or under this Act required or authorised to be addressed to the owner or occupier of any premises shall be deemed to be properly addressed if addressed by the description of the owner or occupier of the premises (naming the premises), and may be served by delivering it, or a true copy thereof, to some person on the premises, or if there is no person on the premises to whom the same can with reasonable diligence be delivered, by affixing it on some conspicuous part of the premises.

Section 172. Transitional provisions

Notwithstanding anything to the contrary contained in this Act,-

(a) a State Electricity Board constituted under the repealed laws shall be deemed to be the State Transmission Utility and a licensee under the provisions of this Act for a period of one year from the appointed date or such earlier date as the State Government may notify, and shall perform the duties and functions of the State Transmission Utility and a licensee in accordance with the provisions of this Act and rules and regulations made thereunder:

Provided that the State Government may, by notification, authorise the State Electricity Board to continue to function as the State Transmission Utility or a licensee for such further period beyond the said period of one year as may be mutually decided by the Central Government and the State Government.

(b) all licences, authorisations approvals, clearances and permissions granted under the provisions of the repealed laws may, for a period not exceeding one year from the appointed date or such earlier period; as may be notified by the Appropriate Government, continue to operate as if the repealed laws were in force with respect to such licence, authorisations, approvals, clearances and permissions, as the case may be, and thereafter such licences clearances and permissions, as the case may be, and thereafter such licences, authorisations, approvals, clearances and permissions shall be deemed to be licences, authorisation, approvals, clearances and permission under this Act and all provisions of this Act shall apply accordingly to such licences authorisations approvals, clearances and permissions.

(c) the undertaking of the State Electricity Boards established under section 5 of the Electricity (Supply) Act, 1948 may after the expiry of the period specified in clause (a) be transferred in accordance with the provisions of Part XIII of this Act;

(d) the State Government may, by notification, declare that any or all the provisions contained in this Act, shall not apply in that State for such period, not exceeding six months from the appointed date, as may be stipulated in the notification.

Section 173. Inconsistency in laws

Nothing contained in this Act or any rule or regulation made thereunder or any instrument having effect by virtue of this Act, rule or regulation shall have effect in so far as it is inconsistent with any other provisions of the Consumer Protection Act, 1986 or the Atomic Energy Act, 1962 or the Railways Act, 1989.

Section 174. Act to have overriding effect

Save as otherwise provided in section 173, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

Section 175. Provisions of this Act to be in addition to and not in derogation of other laws

The provisions of this Act are in addition to and not in derogation of any other law for the time being in force.

Section 176. Power of Central Government to make rules

(1) The Central Government may, by notification, make rules for carrying out the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: -

(a) the time within which the objection and suggestions on the draft National Electricity Plan to be invited by the Authority under the proviso to sub-section (4) of section 3;

(b) the additional requirements ¹(relating to the capital adequacy, creditworthiness or code of conduct) under sixth proviso to section 14; (c) the payment of fees for application for grant of licence under sub-section (I) of section 15;

(d) the constitution and functions of the National Load Despatch Centre under sub-section (2) of section 26;

(e) the works of licensees affecting the property of owner or occupier under sub-section (2) of section 67;

(f) such other works which may be prescribed under clause (c) of sub-section (2) of Section 68;

(g) allowances and fees payable to others Members for attending the meetings of Authority under sub-section (14) of section 70.

(h) other terms and conditions of service of the Chairperson and Members of the Authority under sub-section (15) of section 70;

(i) the functions and duties of the Central Electricity Authority under section 73;

(j) the salary, allowances and other conditions of service of Chairperson and Member of Central Commission under sub-section (2) of section 89;

(k) the form and manner in which and the authority before whom oath of office and secrecy should be subscribed under sub-section (3) of section 89;

(l) the procedure to be prescribed by the Central Commission under the proviso to sub- section (2) of section 90;

(m) any other matter required to be prescribed under clause (g) of sub-section (1) of section 94;

(n) the form in which the Central Commission shall prepare its annual statements of accounts under sub-section (1) of section 100;

(o) the form in which and time at which the Central Commission shall prepare its annual report under sub-section (1) 101;

(p) the form in which and time at which the Central Commission shall prepare its budget under section 106;

(q) the form and the manner of verifying such form, and fee for filing appeal under sub-section (2) of section 111;

(r) the salary and allowances payable to and the other terms and conditions of service of the Chairperson of the Appellate Tribunal and Members of the Appellate Tribunal under section 115;

(s) the salary and allowances and other conditions of service of the officers and employees of the Appellate Tribunal under sub-section (3) of section 119;

(t) the additional matters in respect of which the Appellate Tribunal may exercise the powers of a civil court under clause (i) of sub-section (2) of section 120;

(u) the authority to whom the appeal shall be filed under sub-section (1) of section 127;

(v) manner of holding inquiry by an adjudicating officer and subsection (1) of section 143;

(w) the form in which and the time at which service of notices to any person or to the Central Government for the purpose under sub-section (1) of section 161;

(x) the powers to be exercised and the functions to be performed by the Inspectors under sub-section (1) of section 162;

(y) the manner of delivery of every notice, order or document to be served under sub-section (1) of section 171;

(z) any other matter which is required to be, or may be, prescribed.

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Subs. by Act 26 of 2007, Sec.19 for the words “(including the capital adequacy, creditworthiness or code of conduct) (w.e.f. 15th June 2007).

Section 177. Powers of Authority to make regulations

(1) The Authority may, by notification, make regulations consistent with this Act and the rules generally to carry out the provisions of this Act.

(2) In particular and without prejudice to the generality of the power conferred in sub-section (1), such regulations may provide for all or any of the following matters, namely:–

(a) the Grid Standards under section 34;

(b) suitable measures relating to safety and electric supply under section 53;

(d) the rules of procedure for transaction of business under sub-section (9) of section 70;

(e) the technical standards for construction of electrical plants and electric lines and connectivity to the grid under clause (b) of section 73;

(f) the form and manner in which and the time at which the State Government and licensees shall furnish statistics, returns or other information under section 74.

(g) any other matter which is to be, or may be, specified;

(3) All regulations made by the Authority under this Act shall be subject to the conditions of previous publication.

Section 178. Powers of Central Commission to make regulations

(1) The Central Commission may, by notification make regulations consistent with this Act and the rules generally to carry out the provisions of this Act.

(2) In particular and without prejudice to the generality of the power contained in sub-section (1), such regulations may provide for all or any of following matters, namely:-

(a) period to be specified under the first proviso to section 14;

(b) the form and the manner of the application under sub-section (1) of section 15;

(d) the conditions of licence under section 16;

(e) the manner and particulars of notice under clause (a) of sub-section (2) of section 18;

(f) publication of alterations or amendments to be made in the licence under clause(c) of sub-section (2) of section 18;

(g) Grid Code under sub-section (2) of section 28;

(h) levy and collection of fees and charge from generating companies or transmission utilities or licensees under sub-section (4) of section 28;

(i) rates, charges and terms and conditions in respect of intervening transmission facilities under proviso to section 36;

(j) payment of the transmission charges and a surcharge under-sub clause

(ii) of clause (d) of sub-section (2) of section 38;

(k) reduction ¹[*****] of surcharge and cross subsidies under second proviso to sub-clause (ii) of clause (d) of sub-section (2) of section 38;

(l) payment of transmission charges and a surcharge under sub-clause (ii) of clause(c) of section 40;

(m) reduction ²[*****] of surcharge and cross subsidies under the second proviso to sub-clause (ii) of clause (c) of section 40;

(n) proportion of revenues from other business to be utilised for reducing the transmission and wheeling charges under proviso to section 41;

(o) duties of electricity trader under sub-section (2) of section 52;

(p) standards of performance of a licensee or class of licensees under sub-section (1) of section 57;

(q) the period within which information to be furnished by the licensee under sub-section (1) of section 59;

(r) ¹the manner of reduction cross-subsidies shall be reduced and eliminated under clause (g) of section 61;

(s) the terms and conditions for the determination of tariff under section 61;

(t) details to be furnished by licensee or generating company under sub-section (2) of section 62;

(u) the procedures for calculating the expected revenue from tariff and charges under sub-section (5) of section 62;

(v) the manner of making an application before the Central Commission and the fee payable therefor under sub-section (1) of section 64;

(w) the manner of publication of draft tariff order under sub-section (3) of section 64;

(x) issue of tariff order with modifications or conditions under subsection (4) of section 64;

(y) the manner by which development of market in power including trading specified under section 66;

(z) the powers and duties of the Secretary of the Central Commission under sub-section (1) of section 91;

(za) the terms and conditions of service of the Secretary, officers and other employees of Central Commission under sub-section (3) of section 91;

(zb) the rules of procedure for transaction of business under subsection (1) of section 92;

(zc) minimum information to be maintained by a licensee or the generating company and the manner of such information to be maintained under sub-section (8) of section 128;

(zd) the manner of service and publication of notice under section 130;

(ze) any other matter which is to be, or may be, specified by regulations.

(3) All regulations made by the Central Commission under this Act shall be subject to the conditions of previous publication.

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1 The words “and elimination” omitted by Act 26 of 2007, Sec.20 (w.e.f. 15th June 2007).

2 The words “and elimination” omitted by Act 26 of 2007, Sec.20 (w.e.f. 15th June 2007).

Section 179. Rules and regulations to be laid before Parliament

Every rule made by the Central Government, every regulation made by the Authority, and every regulation made by the Central Commission shall be laid, as soon as may be after it is made, before each House of the Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

Section 180. Powers of State Governments to make rules

(1) The State Government may, by notification, make rules for carrying out the provisions of this Act.

(2) In particular and without prejudice to the generality of foregoing power, such rules may provide for all or any of the following matters, namely: -

(a) the payment of fees for application for grant of licence under subsection (1) of section 15;

(b) the works of licensees affecting the property of other persons under sub- section(2) of section 67;

(d) the salary, allowances and other terms and conditions of service of the Chairperson and Members of the State Commission under sub-section (2) of section 89;

(e) the form and manner in which and the authority before whom oath of office and secrecy should be subscribed under sub-section (3) of section 89;

(f) any other matter required to be prescribed by the State Commission under clause (g) of sub- section (1) of section 94;

(g) the manner of applying the Fund under sub-section (3) of section 103;

(h) the form in which and time at which the State Commission shall prepare its annual accounts under sub-section (1) of section 104;

(i) the form in which and time at which the State Commission shall prepare its annual report under sub-section (1) of section 105;

(j) the form in which and time at which the State Commission shall prepare its budget under section 106;

(k) manner of service of provisional order of assessment under subsection (2) of section 126;

(l) manner of holding inquiry by an adjudicating officer under subsection (1) of section 143;

(m) the form in which and the time at which notice to the Electrical Inspector under sub-section (1) of section 161;

(n) the manner of delivery of every notice, order or document under sub-section (1) of section 171; and

(o) any other matter which is required to be, or may be, prescribed.

Section 181. Powers of State Commissions to make regulations

(1) The State Commissions may, by notification, make regulations consistent with this Act and the rules generally to carry out the provisions of this Act.

(2) In particular and without prejudice to the generality of the power contained in sub-section (1), such regulations may provide for all or any of the following matters, namely: -

(a) period to be specified under the first proviso of section 14;

(b) the form and the manner of application under sub-section (1) of section 15;

(d) the conditions of licence section 16;

(e) the manner and particulars of notice under clause(a) of subsection (2) of section 18;

(f) publication of the alterations or amendments to be made in the licence under clause (c) of sub-section (2) of section 18;

(g) levy and collection of fees and charges from generating companies or licensees under sub-section (3) of section 32;

(h) rates, charges and the term and conditions in respect of intervening transmission facilities under proviso to section 36;

(i) payment of the transmission charges and a surcharge under subclause

(ii) of clause(d) of sub-section (2) of section 39;

(j) reduction ¹[*****] of surcharge and cross subsidies under second proviso to sub-clause (ii) of clause (d) of sub-section (2) of section 39;

(k) manner and utilisation of payment and surcharge under the fourth proviso to sub-clause(ii) of clause (d) of sub-section (2) of section 39;

(l) payment of the transmission charges and a surcharge under subclause(ii) of clause (c) of section 40;

(m) reduction ¹[*****] of surcharge and cross subsidies under second proviso to sub-clause (ii) of clause (c) of section 40;

(n) the manner of payment of surcharge under the fourth proviso to sub-clause (ii) of clause (c) of section 40;

(o) proportion of revenues from other business to be utilised for reducing the transmission and wheeling charges under proviso to section 41;

(p) reduction ²[*****] of surcharge and cross-subsidies under the third proviso to sub-section (2) of section 42;

(q) payment of additional charges on charges of wheeling under subsection (4) of section 42;

(r ) guidelines under sub-section (5) of section 42;

(s) the time and manner for settlement of grievances under sub-section (7) of section 42;

(t) the period to be specified by the State Commission under sub-section (1) of section 43;

(u) methods and principles by which charges for electricity shall be fixed under sub-section (2) of section 45;

(v) reasonable security payable to the distribution licensee under sub-section (1) of section 47;

(w) payment of interest on security under sub-section (4) of section 47;

(x) electricity supply code under section 50;

(y) the proportion of revenues from other business to be utilised for reducing wheeling charges under proviso to section 51;

(z) duties of electricity trader under sub-section (2) of section 52;

(za) standards of performance of a licensee or a class of licensees under sub-section (1) of section 57;

(zb) the period within which information to be furnished by the licensee under sub-section (1) of section 59;

(zc) ³[*****] the mannerof reduction of cross-subsidies shall be reduced and eliminated under clause (g) of section 61;

(zd) the terms and conditions for the determination of tariff under section 61;

(ze) details to be furnished by licensee or generating company under sub-section (2) of section 62;

(zf) the methodologies and procedures for calculating the expected revenue from tariff and charges under sub-section (1) of section 62;

(zg) the manner of making an application before the State Commission and the fee payable therefor under sub-section (1) of section 64;

(zh) issue of tariff order with modifications or conditions under subsection(3) of section 64;

(zi) the manner by the which development of market in power including trading specified under section 66;

(zj) the powers and duties of the Secretary of the State Commission under sub-section (1) of section 91;

(zk) the terms and conditions of service of the secretary, officers and other employees of the State Commission under sub-section (2) of section 91;

(zl) rules of procedure for transaction of business under sub-section (1) of section 92;

(zm) minimum information to be maintained by a licensee or the generating company and the manner of such information to be maintained under sub-section (8) of section 128;

(zn) the manner of service and publication of notice under section 130;

(zo) the form of and preferring the appeal and manner in which such form shall be verified and the fee for preferring the appeal under sub-section (1) of section 127;

(zp) any other matter which is to be, or may be, specified.

(3) All regulations made by the State Commission under this Act shall be subject to the condition of previous publication.

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1 The words “and elimination” omitted by Act 26 of 2007, Sec. 21 (w.e.f. 15th June 2007).

2 The words “and elimination” omitted by Act 26 of 2007, Sec. 21 (w.e.f. 15th June 2007).

3. Subs. by Act 26 of 2007, Sec.21 (w.e.f. 15th June 2007).

Section 182. Rules and regulations to be laid before State Legislature

Every rule made by the State Government and every regulation made by the State Commission shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.

Section 183. 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, make such provisions not inconsistent with the provisions of this Act, as may appear to be necessary for removing the difficulty:

Provided that no order shall be made under this section after the expiry of two years from the date of commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House’ of Parliament.

Section 184. Provisions of Act not to apply in certain cases

The provisions of this Act shall not apply to the Ministry or Department of the Central Government dealing with Defence, Atomic Energy or such other similar Ministries or Departments or undertakings or Boards or institutions under the control of such Ministries or Departments as may be notified by the Central Government.

Section 185. Repeal and saving

(1) Save as otherwise provided in this Act, the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998 are hereby repealed.

(2) Notwithstanding such repeal, -

(a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given under the repealed laws shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.

(b) the provisions contained in sections 12 to 18 of the Indian Electricity Act, 1910 and rules made thereunder shall have effect until the rules under section 67 to 69 of this Act are made;.

(c) Indian Electricity Rules, 1956 made under section 37 of the Indian Electricity Act, 1910 as it stood before such repeal shall continue to be in force till the regulations under section 53 of this Act are made.

(d) all rules made under sub-section (1) of section 69 of the Electricity (Supply) Act, 1948 shall continue to have effect until such rules are rescinded or modified, as the case may be;

(e) all directives issued, before the commencement of this Act, by a State Government under the enactments specified in the Schedule shall continue to apply for the period for which such directions were issued by the State Government.” .

(3) The provisions of the enactments specified in the Schedule, not inconsistent with the provisions of this Act, shall apply to the States in which such enactments are applicable.

(4) The Central Government may, as and when considered necessary, by notification, amend the Schedule.

(5) Save as otherwise provided in sub-section (2), the mention of particular matters in that section, shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897, with regard to the effect of repeals.

The Schedule

ENACTMENTS

( See sub-Section (3) of Section 185)

1. The Orissa Electricity Reform Act, 1995 (Orissa Act no. 2 of 1996)

2. The Haryana Electricity Reform Act, 1997 (Haryana Act no. 10 of 1998)

3. The Andhra Pradesh Electricity Reform Act, 1998 (Andhra Pradesh Act no. 30 of 1998)

4. The Uttar Pradesh Electricity Reform Act, 1999 (Uttar Pradesh Act no. 24 of 1999)

5. The Karnataka Electricity Reform Act, 1999 (Karnataka Act no. 25 of 1999)

6. The Rajasthan Electricity Reform Act, 1999 (Rajasthan Act no. 23 of 1999)

7. The Delhi Electricity Reforms Act, 2000 (Delhi Act No.2 of 2001)

8. The Madhya Pradesh Vidyut Sudhar Adhiniyam, 2000 (Madhya Pradesh Act No. 4 of 2001)

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