Family Courts Act

November 30, 2014

Section 1. Short title, extent and commencement.

14th September 1984]

An Act to provide for the establishment of Family Court with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and, family affairs and for matters connected therewith.

Be it enacted by Parliament in the Thirty-fifty year of the Republic of India as follows:

(1) This Act may be called the Family Courts Act, 1984.

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

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different States.

Section 2. Definitions.

In this Act, unless the context otherwise requires, -

(a) “Judge” means the Judge or, as the case may be, the Principal Judge. Additional Principal Judge or other Judge of a Family Court;

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

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

(d) “Family Court” means a Family Court established under Section 3;

(e) All other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code.

Section 3. Establishment of Family Courts.

(1) For the purpose of exercising the jurisdiction and powers conferred on a Family Court by this Act, the State Government, alter consultation with the High Court, and by notification. -

(a) Shall, as soon as may be after the commencement of this Act, establish for every area in the State comprising a city or town whose population exceeds one million, a Family Court;

(b) May establish Family Courts for such other areas in the State as it may deem necessary.

(2) The State Government shall, after consultation with the High Court, specify, by notification, the local limits of the area to which the jurisdiction of a Family Court shall extend and may, at any time, increase, reduce or alter such limits.

Section 4. Appointment of Judges.

(1) The State Government may, with the concurrence of the High Court, appoint one or more persons to be the Judge or Judges of’ a Family Court. (2) When a Family Court consists of more than one Judge, -

(a) Each of the Judges may exercise all or any of the powers conferred on the Court by this Act or any other law for the time being in force;

(b) The State Government may, with the concurrence of the High Court, appoint any of the Judges to be the Principal Judges and any other Judge to be the Additional Principal Judge;

(c) The Principal Judge may, from time to time, make such arrangements as he may deem fit for the distribution of the business of the Court among the various Judges thereof,

(d) The Additional Principal Judge may exercise the powers of the Principal Judge in the event of any vacancy in the office of the Principal Judge or when the Principal Judge is unable to discharge his functions owing to absence, illness or any other cause.

(3) A person shall not be qualified for appointment as a Judge unless he-

(a) Has for at least seven years held a judicial office in India or the office of a member of a tribunal or any post under the Union or a State requiring special knowledge of law; or

(b) Has for at least seven years been an advocate of a High Court or of two or more such Courts in succession; or

(c) Possesses such other qualifications as the Central Government may with the concurrence of the Chief Justice of India, prescribe.

(4) In selecting persons for appointment as Judges, -

(a) Every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counseling are selected; and

(b) Preference shall be given to women.

(5) No person shall be appointed as, or hold the office of, a Judge of a Family Court after he has attained the age of sixty-two years.

(6) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of a Judge shall be as the State Government may, in consultation with the High Court, prescribe.

Section 5. Association of social welfare agencies, etc.

The State Government may, in consultation with the High Court, provide, by rules, for the association, in such manner and for such purposes and subject to such conditions as may be specified in the rules, with a Family Court of-

(a) Institutions or organisations engaged in social welfare or the representatives thereof,

(b) Persons professionally engaged in promoting the welfare of the family;

(c) Persons working in the field of social welfare; and

(d) Any other person whose association with a Family Court would enable it to exercise its jurisdiction more effectively in accordance with the purposes of this Act.

Section 6. Counsellors, officers and other employees of Family Courts.

(1) The State Government shall in consultation with the High Court, determine the number and categories of counsellors, officers and other employees required to assist a Family Court in the discharge of its functions and provide the Family Court with such Counsellors, officers and other employees as it may think fit.

(2) The terms and conditions of association of the counsellors and the terms and conditions of service of the officers and other employees, referred to in Sub-section (1), shall be such as may be specified by rules made by the State Government.

Section 7. Jurisdiction.

(1) Subject to the other provisions of this Act, a Family Court shall. -

(a) Have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceeding of the nature referred to in the explanation; and

(b) Be deemed, for the purposes of exercising such jurisdiction under such law to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation. – The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:

(a) A suit or proceeding between the parties to a marriage for a decree of nullity of marriage declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) A suit or proceeding for a declaration as to the validity of a marriage or a, to the matrimonial status of any person;

(c) A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) A suit or proceeding for all order or injunctions in circumstances arising out of a marital relationship;

(e) A suit or proceeding for a declaration as to the legitimacy of any person;

(f) A suit or proceeding for maintenance,

(g) A suit or proceeding in relation to the guardianship of the person or the custody or, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have all exercise-

(a) The jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife. children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and

(b). Such other jurisdictions as may be conferred on it by any other enactment.

8. Exclusion of jurisdiction and pending proceedings.

Where a Family Court has been established for any area:-

(a) No district court or any subordinate civil court referred to in subsection (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect, of any suit or proceeding of the nature referred to in the explanation to that sub-section; (b) No magistrate shall, in relation to such area, have or exercise any jurisdiction or power under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);

(c) Every suit or proceeding of the nature referred to in the explanation to, sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), -

(i) Which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be before any magistrate under the said Code; and

(ii) Which would have been required to he instituted or taken before such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had conic into force and such Family Court had been established,

Shall stand transferred to such Family Court on the date on which it is established.

Section 9. Duty of Family Court to make efforts for settlement.

(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.

(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family (stiff may adjourn the proceedings for such period as it think fit to enable attempts to be Inside to effect such a settlement.

(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of any other power of the Family Court to adjourn the proceedings.

Section 10. Procedure generally.

(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court. (2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court. (3) Nothing in sub-section (1) or subsection (2) shall prevent a Family Court front laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by the other.

Section 11. Proceedings to be held in Camera.

Every suit or proceedings to which this Act applies, the proceedings may be held in camera if the Family Court so desires and shall be so held if either party so desires.

Section 12. Assistance of medical and welfare experts.

In every suit or proceedings, it shall be open to a Family Court to secure the services of a medical expert or such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purposes of assisting the Family Court in discharging the functions imposed by this Act.

Section 13. Right to legal representation.

Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall he entitled, as of right, to be represented by a legal practitioner: Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae

Section 14. Application of Indian Evidence Act, 1872.

A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872).

Section 15. Record of oral evidence.

In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded a memorandum of the substance of what the witness deposes, and such memorandum Shall be signed by the witness and the Judge and shall form part of the record.

Section 16. Evidence of formal character on affidavit.

(1) The evidence of any person where such evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court. (2) The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such person as to the facts contained in his affidavit.

Section 17. Judgement.

Judgement of a Family Court shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision.

Section 18. Execution of decrees and orders.

(1) A decree or all order [other than an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)], passed by a Family Court shall have the same force and effect as a decree or order of a civil court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the execution of decrees and orders.

(2) An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) shall be executed in the manner prescribed for the execution of such order by that Code.

(3) A decree or order may be executed either by the Family Court which passed it or by the other Family Court or ordinary civil court to which it is sent for execution.

Section 19. Appeal.

Chapter V 

1[APPEALS AND REVISIONS]

1 Substituted by Act. No. 59 of 1991

(1) Save as provided in subsection (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties 1[or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974). Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act 1991].

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court. 2[(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being ail interlocutory order, and, as to the regularity of such proceeding.

(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.

(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.

1 Inserted by Act. No. 59 of 1991

2. Sub-sec (4) inserted and original sub-section (4) & (5) re-numbered as (5) & (6) by Act No. 59 of 1991

Section 20. Act to have overriding effect.

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

Section 21. Power of High Court to make rules.

(1) The High Court may, by notification in the Official Gazette, make such rules as it may deem necessary for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:

(a) Normal working hours of Family Courts and holding of sittings of Family Courts on holidays and outside normal working hours;

(b) Holding of sittings of Family Courts at places other than their ordinary places of sitting;

(c) Efforts which may be made by, and the procedure which may be followed by a Family Court for assisting and persuading parties to arrive at a settlement.

Section 22. Power of the Central Government to make rules.

(1) The Central Government may, with the concurrence of the Chief Justice of India, by notification, make rules prescribing the other qualifications for appointment of a Judge referred to in clause (c) of subsection (3) of Section 4.

(2) Every rule made under this Act by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making it 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 else 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 23. Power of the State Government to make rules.

(1) The State Government may, after consultation with the High Court, by notification, make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the provisions of subsection (1) such rules may provide for all or any of the following matters, namely: -

(a) The salary or honorarium and other allowances payable to, and the other terms and conditions of Judges under subsection (6) of Section 4;

(b) The terms and conditions of association of counselors and the terms and conditions of service of the officers and other employees referred to in See section 6;

(c) Payment of fees and expenses (including travelling expenses) of medical and other experts and other persons referred to in Section 13 out of the revenues of the State Government and the scales of such fees and expenses;

(d) Payment of fees and expenses to legal practitioners appointed under Section 13 as amicus and curiae out of the revenues of the State Government and the scales of such fees and expenses;

(e) Any other matter which is required to be, or may be, prescribed or provided for by rules.

(3) Every rule made by State Government under this Act shall be laid as soon as may be after it is made, before the State Legislature.

Minimum Wages Act

November 30, 2014

Preamble

[15th March, 1948]

An act to provide for fixing minimum rate of wages in certain employments.

Where it is expedient to provide for fixing minimum rates of wages in certain employments:

It is hereby enacted as follows:

“The justification for statutory fixation of minimum wages is obvious. Such provisions which exists in more advanced countries are even more necessary in India, where workers organisations are yet poorly developed and worker’s bargaining power is consequently poor.” (Gazette of India).

Section 1. Short title and extent

(1) This Act may be called the Minimum Wages Act 1948.

(2) It extends to the whole of India.

Section 2. Interpretation

In this Act unless there is anything repugnant in the subject or context -

(a) “adolescent” means a person who has completed his fourteenth year of age but has not completed his eighteenth year;

(aa) “adult” means a person who has completed his eighteenth year of age;

(b) “appropriate government” means -

(i) in relation to any scheduled employment carried on by or under the authority of the Central Government or a railway administration] or in relation to a mine oilfield or major port or any corporation established by a Central Act the Central Government and

(ii) in relation to any other scheduled employment the State Government;

(bb) “child” means a person who has not completed his fourteenth year of age;

(c) “competent authority” means the authority appointed by the appropriate government by notification in its Official Gazette to ascertain from time to time the cost of living index number applicable to the employees employed in the scheduled employments specified in such notification;

(d) “cost of living index number” in relation to employees in any scheduled employment in respect of which minimum rates of wages have been fixed means the index number ascertained and declared by the competent authority by notification in the Official Gazette to be the cost of living index number applicable to employee in such employment;

(e) “employer” means any person who employs whether directly or through another person or whether on behalf of himself or any other person one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act and includes except in sub-section (3) of section 26 -

(i) in a factory where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act any person named under clause (f) of sub-section (1) of section 7 of the Factories Act 1948 (63 of 1948) as manager of the factory;

(ii) in any scheduled employment under the control of any government in India in respect of which minimum rates of wages have been fixed under this Act the person or authority appointed by such government for the supervision and control of employees or where no person or authority is so appointed the head of the department;

(iii) in any scheduled employment under any local authority in respect of which minimum rates of wages have been fixed under this Act the persons appointed by such authority for the supervision and control of employees or where no person is so appointed the chief executive officer of the local authority;

(iv) in any other case where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act any person responsible to the owner for the supervision and control of the employees or for the payment of wages;

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

(g) “schedule employment” means an employment specified in the Schedule or any process or branch of work forming part of such employment;

(h) “wages” means all remuneration capable of being expressed in terms of money which would if the terms of the contract of employment express or implied were fulfilled be payable to a person employed in respect of his employment or of work done in such employment and includes house rent allowance but does not include -

(i) the value of -

(a) any house accommodation supply of light water medical attendance or

(b) any other amenity or any service excluded by general or special order of the appropriate government;

(ii) any contribution paid by the employer to any person fund or provident fund or under any scheme of social insurance;

(iii) any traveling allowance or the value of any traveling concession;

(iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or

(v) any gratuity payable on discharge;

(i) “employee” means any person who is employed for hire or reward to do any work skilled or unskilled manual or clerical in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up cleaned washed altered ornamented finished repaired adapted or otherwise processed for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the out-worker or in some other premises not being premises under the control and management of that other person; and also includes an employee declared to be an employee by the appropriate government; but does not include any member of the Armed Forces of the Union.

Section 3. Fixing of minimum rates of wages

(1) The appropriate government shall in the manner hereinafter provided -

(a) fix the minimum rates of wages payable to employees employed in an employment specified in Part I or Part II of the Schedule and in an employment added to either Party by notification under section 27 :

Provided that the appropriate government may in respect of employees employed in an employment specified in Part II of the Schedule instead of fixing minimum rates of wages under this clause for the whole State fix such rates for a part of the State or for any specified class or classes of such employment in the whole State or part thereof;

(b) review at such intervals as it may think fit such intervals not exceeding five years the minimum rates of wages so fixed and revise the minimum rates if necessary :

Provided that where for any reason the appropriate government has not reviewed the minimum rates of wages fixed by it in respect of any scheduled employment within any interval of five years nothing contained in this clause shall be deemed to prevent it from reviewing the minimum rates after the expiry of the said period of five years and revising them if necessary and until they are so revised the minimum rates in force immediately before the expiry of the said period of five years shall continue in force.

(1A) Notwithstanding anything contained in sub-section (1) the appropriate government may refrain from fixing minimum rates of wages in respect of any scheduled employment in which there are in the whole State less than one thousand employees engaged in such employment but if at any time the appropriate government comes to a finding after such inquiry as it may make or cause to be made in this behalf that the number of employees in any scheduled employment in respect of which it has refrained from fixing minimum rates of wages has risen to one thousand or more it shall fix minimum rates of wages payable to employees in such employment as soon as may be after such finding.

(2) The appropriate government may fix -

(a) a minimum rate of wages for time work (hereinafter referred to as “a minimum time rate”);

(b) a minimum rates of wages for piece work (hereinafter referred to as “a minimum piece rate”);

(c) a minimum rate of remuneration to apply in the case of employees employed on piece work for the purpose of securing to such employees a minimum rate of wages on a time work basis (hereinafter referred to as “a guaranteed time rate”);

(d) a minimum rate (whether a time rate or a piece rate) to apply in substitution for the minimum rate which would otherwise be applicable in respect of overtime work done by employees (hereinafter referred to as “overtime rate”).

(2A) Where in respect of an industrial dispute relating to the rates of wages payable to any of the employees employed in a scheduled employment any proceeding is pending before a Tribunal or National Tribunal under the Industrial Disputes Act 1947 (14 of 1947) or before any like authority under any other law for the time being in force or an award made by any Tribunal National Tribunal or such authority is in operation and a notification fixing or revising the minimum rates of wages in respect of the scheduled employment is issued during the pendency of such proceeding or the operation of the award then notwithstanding anything contained in this Act the minimum rates of wages so fixed or so revised shall not apply to those employees during the period in which the proceeding is pending and the award made therein is in operation or as the case may be where the notification is issued during the period of operation of an award during that period; and where such proceeding or award relates to the rates of wages payable to all the employees in the scheduled employment no minimum rates of wages shall be fixed or revised in respect of that employment during the said period.

(3) In fixing or revising minimum rates of wages under this section -

(a) different minimum rates of wages may be fixed for -

(i) different scheduled employments;

(ii) different classes of work in the same scheduled employment;

(iii) adults adolescents children and apprentices;

(iv) different localities;

(b) minimum rates of wages may be fixed by any one or more of the following wage periods; namely :

(i) by the hour

(ii) by the day

(iii) by the month or

(iv) by such other larger wage-period as may be prescribed;

and where such rates are fixed by the day or by the month the manner of calculating wages for a month or for a day as the case may be may be indicated :

Provided that where any wage-periods have been fixed under section 4 of the Payment of Wages Act 1936 (4 of 1936) minimum wages shall be fixed in accordance therewith.

Section 4. Minimum rate of wages

(1) Any minimum rate of wages fixed or revised by the appropriate government in respect of scheduled employments under section 3 may consist of -

(i) a basic rate of wages and a special allowance at a rate to be adjusted at such intervals and in such manner as the appropriate government may direct to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the “cost of living allowance”); or

(ii) a basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of suppliers of essential commodities at concession rates where so authorised; or

(iii) an all-inclusive rate allowing for the basic rate the cost of living allowance and the cash value of the concessions if any.

(2) The cost of living allowance and the cash value of the concessions in respect of supplied of essential commodities at concession rate shall be computed by the competent authority at such intervals and in accordance with such directions as may be specified or given by the appropriate government.

Section 5. Procedure for fixing and revising minimum wages

(1) In fixing minimum rates of wages in respect of any scheduled employment for the first time under this Act or in revising minimum rates of wages so fixed the appropriate government shall either -

(a) appoint as many committees and sub-committees as it considers necessary to hold enquiries and advise it in respect of such fixation or revision as the case may be or

(b) by notification in the Official Gazette publish its proposals for the information of persons likely to be affected thereby and specify a date not less than two months from the date of the notification on which the proposals will be taken into consideration.

(2) After considering the advice of the committee or committee appointed under clause (a) of sub-section (1) or as the case may be all representations received by it before the date specified in the notification under clause (b) of that sub-section the appropriate government shall by notification in the Official Gazette fix or as the case may be revise the minimum rates of wages in respect of each scheduled employment and unless such notification otherwise provides it shall come into force on the expiry of three months from the date of its issue :

Provided that where the appropriate government proposes to revise the minimum rates of wages by the mode specified in clause (b) of sub-section (1) the appropriate government shall consult the Advisory Board also.

Section 6. Advisory committees and sub-committees

Repealed by the Minimum Wages (Amendment) Act 1957.

Section 7. Advisory Board

For the purpose of co-ordinating work of committees and sub-committees appointed under section 5 and advising the appropriate government generally in the matter of fixing and revising minimum rates of wages the appropriate government shall appoint an Advisory Board.

Section 8. Central Advisory Board

(1) For the purpose of advising the Central and State Governments in the matters of the fixation and revision of minimum rates of wages and other matters under this Act and for co-ordinating the work of the Advisory Boards the Central Government shall appoint a Central Advisory Board.

(2) The Central Advisory Board shall consist of persons to be nominated by the Central Government representing employers and employees in the scheduled employments who shall be equal in number and independent persons not exceeding one-third of its total number of members; one of such independent persons shall be appointed the Chairman of the Board by the Central Government.

Section 9. Composition of committees etc.

Each of the committees sub-committees and the Advisory Board shall consist of persons to be nominated by the appropriate government representing employers and employees in the scheduled employments who shall be equal in number and independent persons not exceeding one-third of its total number of members; one of such independent persons shall be appointed the Chairman by the appropriate government.

Section 10. Correction of errors

10. (1) The appropriate government may at any time by notification in the Official Gazette correct clerical or arithmetical mistakes in any order fixing or revising minimum rates of wages under this Act or errors arising therein from any accidental slip or omission.

(2) Every such notification shall as soon as may be after it is issued be placed before the Advisory Board for information.

Section 11. Wages in kind

(1) Minimum wages payable under this Act shall be paid in cash.

(2) Where it has been the custom to pay wages wholly or partly in kind the appropriate government being of the opinion that it is necessary in the circumstances of the case may by notification in the Official Gazette authorise the payment of minimum wages either wholly or partly in kind.

(3) If appropriate government is of the opinion that provision should be made for the supply of essential commodities at concession rates the appropriate government may by notification in the Official Gazette authorise the provision of such supplies at concessional rates.

(4) The cash value of wages in kind and of concessions in respect of supplies of essential commodities at concession rates authorised under sub-sections (2) and (3) shall be estimated in the prescribed manner.

Section 12. Payment of minimum rate of wages

(1) Where in respect of any scheduled employment a notification under section 5 is in force the employer shall pay to every employee engaged in a scheduled employment under him wages at a rate not less than the minimum rate of wages fixed by such notification for that class of employees in that employment without any deductions except as may be authorised within such time and subject to such conditions as may be prescribed.

(2) Nothing contained in this section shall affect the provisions of the Payment of Wages Act 1936 (4 of 1936).

Section 13. Fixing hours for normal working day etc.

(1) In regard to any scheduled employment minimum rates of wages in respect of which have been fixed under this Act the appropriate government may -

(a) fix the number of hours of work which shall constitute a normal working day inclusive of one or more specified intervals;

(b) provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such days of rest;

(c) provide for payment for work on a day of rest at a rate not less than the overtime rate.

(2) The provisions of sub-section (1) shall in relation to the following classes of employees apply only to such extent and subject to such conditions as may be prescribed :-

(a) employees engaged on urgent work or in any emergency which could not have been foreseen or prevented;

(b) employees engaged in work in the nature of preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working in the employment concerned;

(c) employees whose employment is essentially intermittent;

(d) employees engaged in any work which for technical reasons has to be completed before the duty is over;

(e) employees engaged in a work which could not be carried on except at times dependent on the irregular action of natural forces.

(3) For the purposes of clause (c) of sub-section (2) employment of an employee is essentially intermittent when it is declared to be so by the appropriate government on the ground that the daily hours of duty of the employee or if there be no daily hours of duty as such for the employee the hours of duty normally include periods of inaction during which the employee may be on duty but is not called upon to display either physical activity or sustained attention.

Section 14. Overtime

(1) Where an employee whose minimum rate of wages is fixed under this Act by the hour by the day or by such a longer wage-period as may be prescribed works on any day in excess of the number of hours constituting a normal working day the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate government for the time being in force whichever is higher.

(2) Nothing in this Act shall prejudice the operation of the provisions of section 59 of the Factories Act 1948 (63 of 1948) in any case where those provisions are applicable.

Section 15. Wages of worker who works for less than normal working day

If an employee whose minimum rate of wages has been fixed under this Act by the day works on any day on which he was employed for a period less than the requisite number of hours constituting a normal working day he shall save as otherwise hereinafter provided be entitled to receive wages in respect of work done by him on that day as if he had worked for a full normal working day :

Provided however that he shall not be entitled to receive wages for a full normal working day -

(i) in any case where his failure to work is caused by his unwillingness to work and not by the omission of the employer to provide him with work and

(ii) in such other cases and circumstances as may be prescribed.

Section 16. Wages for two or more classes of work

Where an employee does two or more classes of work to each of which a different minimum rate of wages is applicable the employer shall pay to such employee in respect of the time respectively occupied in each such class of work wages at not less than the minimum rate in force in respect of each such class.

Section 17. Minimum time rate wages for piece work

Where an employee is employed on piece work for which minimum time rate and not a minimum piece rate has been fixed under this Act the employer shall pay to such employee wages at not less than the minimum time rate.

Section 18. Maintenance of registers and records

(1) Every employer shall maintain such registers and records giving such particulars of employees employed by him the work performed by them the wages paid to them the receipts given by them and such other particulars and in such form as may be prescribed.

(2) Every employer shall keep exhibited in such manner as may be prescribed in the factory workshop or place where the employees in the scheduled employment may be employed or in the case of out-workers in such factory workshop or place as may be used for giving out work to them notices in the prescribed form containing prescribed particulars.

(3) The appropriate government may by rules made under this Act provide for the issue of wage books or wage slips to employees employed in any scheduled employment in respect of which minimum rates of wages have been fixed and prescribed to manner in which entries shall be made and authenticated in such wage books or wage slips by the employer or his agent.

Section 19. Inspectors

(1) The appropriate government may by notification in the Official Gazette appoint such persons as it thinks fit to be Inspectors for the purposes of this Act and define the local limits within which they shall exercise their functions.

(2) Subject to any rules made in this behalf an Inspector may within the local limits for which he is appointed -

(a) enter at all reasonable hours with such assistants (if any) being persons in the service of the government or any local or other public authority as he thinks fit any premises or place where employees are employed or work is given out to out-workers in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act for the purpose of examining any register record of wages or notices required to be kept or exhibited by or under this Act or rules made thereunder and require the production thereof for inspection;

(b) examine any person whom he finds in any such premises or place and who he has reasonable cause to believe is an employee employed therein or an employee to whom work is given out therein;

(c) require any person giving out-work and any out-workers to give any information which is in his power to give with respect to the names and addresses of the persons to for and from whom the work is given out or received and with respect to the payments to be made for the work;

(d) seize or take copies of such register record or wages or notices or portions thereof as he may consider relevant in respect of an offence under this Act which he has reason to believe has been committed by an employer; and

(e) exercise such other powers as may be prescribed.

(3) Every Inspector shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860).

(4) Any person required to produce any document or thing or to give any information by an Inspector under sub-section (2) shall be deemed to be legally bound to do so within the meaning of section 175 and section 176 of the Indian Penal Code (45 of 1860).

Section 20. Claim

(1) The appropriate government may by notification in the Official Gazette appoint any Commissioner for Workmen’s Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region or any officer of the State Government not below the rank of Labour Commissioner or any other officer with experience as a judge for a civil court or as a Stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of sub-section (1) of section 13 or of wages at the overtime rate under section 14 to employees employed or paid in that area.

(2) Where an employee has any claim of the nature referred to in sub-section (1) the employee himself or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf or any Inspector or any person acting with the permission of the authority appointed under sub-section (1) may apply to such authority for a direction under sub-section (3) :

Provided that every such application shall be presented within six months from the date on which the minimum wages or other amount became payable :

Provided Further that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.

(3) When any application under sub-section (2) is entertained the authority shall hear the applicant and the employer or give them an opportunity of being heard and after such further inquiry if any as it may consider necessary may without prejudice to any other penalty to which the employer may be liable under this Act direct -

(i) in the case of a claim arising out of payment of less than the minimum rates of wages the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid together with the payment of such compensation as the authority may think fit not exceeding ten times the amount of such excess;

(ii) in any other case the payment of the amount due to the employee together with the payment of such compensation as the authority may think fit not exceeding ten rupees;

and the authority may direct payment of such compensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application.

(4) If the authority hearing any application under this section is satisfied that it was either malicious or vexatious it may direct that a penalty not exceeding fifty rupees be paid to be employer by the person presenting the application.

(5) Any amount directed to be paid under this section may be recovered -

(a) if the authority is a Magistrate by the authority as if it were a fine imposed by the authority as a Magistrate or

(b) if the authority is not a Magistrate by any Magistrate to whom the authority makes application in this behalf as if it were a fine imposed by such Magistrate.

(6) Every direction of the authority under this section shall be final.

(7) Every authority appointed under sub-section (1) shall have all the powers of a civil court under the Code of Civil Procedure 1908 (5 of 1908) for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents and every such authority shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure 1898 (5 of 1898).

Section 21. Single application in respect of a number of employees

(1) Subject to such rules as may be prescribed a single application may be presented under section 20 on behalf or in respect of any number of employees employed in the scheduled employment in respect of which minimum rates of wages have been fixed and in such cases the maximum compensation which may be awarded under sub-section (3) of section 20 shall not exceed ten times the aggregate amount of such excess or ten rupees per head as the case may be.

(2) The authority may deal with any number of separate pending applications presented under section 20 in respect of employees in the scheduled employments in respect of which minimum rates of wages have been fixed as a single application presented under sub-section (1) of this section and the provisions of that sub-section shall apply accordingly.

Section 22. Penalties for certain offences any employer who

(a) pays to any employee less than the minimum rates of wages fixed for that employee’s class of work or less than the amount due to him under the provisions of this Act or

(b) contravenes any rule or order made under section 13;

shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or with both :

Provided that in imposing any fine for an offence under this section the court shall take into consideration the amount of any compensation already awarded against the accused in any proceedings taken under section 20.

Section 22A. General provision for punishment of other offences

Any employer who contravenes any provision of this Act or of any rule or order made thereunder shall if no other penalty is provided for such contravention by this Act be punishable with fine which may extend to five hundred rupees.

Section 22B. Cognizance of offences

(1) No court shall take cognizance of a complaint against any person for an offence -

(a) under clause (a) of section 22 unless an application in respect of the facts constituting such offence has been presented under section 20 and has been granted wholly or in part and the appropriate government or an officer authorised by it is this behalf has sanctioned the making of the complaint;

(b) under clause (b) of section 22 or under section 22A except on a complaint made by or with the sanction of an Inspector.

(2) No court shall take cognizance of an offence -

(a) under clause (a) or clause (b) of section 22 unless complaint thereof is made within one month of the grant of sanction under this section;

(b) under section 22A unless complaint thereof is made within six months of the date on which the offence is alleged to have been committed.

Section 22C. Offences by companies

(1) If the person committing any offence under this Act 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 punished accordingly:

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

(2) Notwithstanding anything contained in sub-section (1) where 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 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 of the company 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 22D. Payment of undisbursed amounts due to employees

All amounts payable by an employer to an employee as the amount of minimum wages of the employee under this Act or otherwise due to the employee under this Act or any rule or order made thereunder shall if such amounts could not or cannot be paid to the employee on account of his death before payment or on account of his whereabouts not being known be deposited with the prescribed authority who shall deal with the money so deposited in such manner as may be prescribed.

Section 22E. Protection against attachment of assets of employer with government

Any amount deposited with the appropriate government by an employer to secure the due performance of a contract with that government and any other amount due to such employer from that government in respect of such contract shall not be liable to attachment under any decree or order of any court in respect of any debt or liability incurred by the employer other than any debt or liability incurred by the employer towards any employee employed in connection with the contract aforesaid.

Section 22F. Application of Payment of Wages Act 1936 to scheduled employments

(1) Notwithstanding anything contained in the Payment of Wages Act 1936 (4 of 1936) the appropriate government may by notification in the Official Gazette direct that subject to the provisions of sub-section (2) all or any of the provisions of the said Act shall with such modifications if any as may be specified in the notification apply to wages payable to employees in such scheduled employments as may be specified in the notification.

(2) Where all or any of the provisions of the said Act are applied to wages payable to employees in any scheduled employment under sub-section (1) the Inspector appointed under this Act shall be deemed to be the Inspector for the purpose of enforcement of the provisions so applied within the local limits of his jurisdiction.

Section 23. Exemption of employer from liability in certain cases

Where an employer is charged with an offence against this Act he shall be entitled upon complaint duly made by him to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge; and if after the commission of the offence has been proved the employer proves to the satisfaction of the court-

(a) that he has used due deligence to enforce the execution of this Act and

(b) that the said other person committed the offence in question without his knowledge consent or connivance.

that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the employer and the employer shall be discharged :

Provided that in seeking to prove as aforesaid the employer may be examined on oath and the evidence of the employer or his witness if any shall be subject to cross-examination by or on behalf of the person whom the employer charges as the actual offender and by the prosecution.

Section 24. Bar of suits

No court shall entertain any suit for the recovery of wages in so far as the sum so claimed -

(a) forms the subject of an application under section 20 which has been presented by or on behalf of the plaintiff or

(b) has formed the subject of a direction under that section in favour of the plaintiff or

(c) has been adjudged in any proceeding under that section not to be due to the plaintiff or

(d) could have been recovered by an application under that section.

Section 25. Contracting out

Any contract or agreement whether made before or after the commencement of this Act whereby an employee either relinquishes or reduces his right to a minimum rate of wages or any privilege or concession accruing to him under this Act shall be null and void in so far as it purports to reduce the minimum rate of wages fixed under this Act.

Section 26. Exemption and exceptions

(1) The appropriate government may subject to such conditions if any as it may think fit to impose direct that the provisions of this Act shall not apply in relation to the wages payable to disabled employees.

(2) The appropriate government if for special reasons it thinks so fit by notification in the Official Gazette direct that subject to such conditions and for such period as it may specify the provisions of this Act or any of them shall not apply to all or any class of employees employed in any scheduled employment or to any locality where there is carried on a scheduled employment.

(2A) The appropriate government may if it is of opinion that having regard to the terms and conditions of service applicable to any class of employees in a scheduled employment generally or in a scheduled employment in a local area or to any establishment or a part of any establishment in a scheduled employment it is not necessary to fix minimum wages in respect of such employees of that class or in respect of employees in such establishment or such part of any establishment as are in receipt of wages exceeding such limit as may be prescribed in this behalf direct by notification in the Official Gazette and subject to such conditions if any as it may think fit to impose that the provisions of this Act or any of them shall not apply in relation to such employees.

(3) Nothing in this Act shall apply to the wages payable by an employer to a member of his family who is living with him and is dependent on him.

Explanation : In this sub-section a member of the employer’s family shall be deemed to include his or her spouse or child or parent or brother or sister.

Section 27. Power of State Government to add to Schedule

The appropriate government after giving by notification in the Official Gazette not less than three months’ notice of its intention so to do may by like notification add to either Part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed under this Act and thereupon the Schedule shall in its application to the State be deemed to be amended accordingly.

Section 28. Power of Central Government to give directions

The Central Government may give directions to a State Government as to the carrying into execution of this Act in the State.

Section 29. Power of Central Government to make rules

The Central Government may subject to the condition of previous publication by notification in the Official Gazette make rules prescribing the term of office of the members the procedure to be followed in the conduct of business the method of voting the manner of filling up casual vacancies in membership and the quorum necessary for the transaction of business of the Central Advisory Board.

Section 30. Power of appropriate government to make rules

(1) The appropriate government may subject to the condition of previous publication by notification in the Official Gazette make rules for carrying out the purposes of this Act.

(2) Without prejudice to the generality of the foregoing power such rules may -

(a) prescribe the term of office of the members the procedure to be followed in the conduct of business the method of voting the manner of filling up casual vacancies in membership and the quorum necessary for the transaction of business of the committees sub-committees and the Advisory Board;

(b) prescribe the method of summoning witnesses production of documents relevant to the subject-matter of the enquiry before the committees sub-committees and the Advisory Board;

(c) prescribe the mode of computation of the cash value of wages in kind and of concessions in respect of supplies of essential commodities at concession rates;

(d) prescribe the time and conditions of payment of and the deductions permissible from wages;

(e) provide for giving adequate publicity to the minimum rates of wages fixed under this Act;

(f) provide for a day of rest in every period of seven days and for the particulars to be entered in such registers and records;

(g) prescribe the number of hours of work which shall constitute a normal working day;

(h) prescribe the cases and circumstance in which an employee employed for a period of less than the requisite number of hours constituting a normal working day shall not be entitled to receive wages for a full normal working day;

(i) prescribe the form of registers and records to be maintained and the particulars to be entered in such registers and records;

(j) provide for the issue of wage book and wage slips and prescribe the manner of making and authenticating entries in wage books and wage slips;

(k) prescribe the powers of Inspectors for purposes of this Act;

(l) regulate the scale of costs that may be allowed in proceedings under section 20 and

(m) prescribe the amount of court-fees payable in respect of proceedings under section 20; and

(n) provide for any other matter which is to be or may be prescribed.

Section 30A. Rules made by Central Government to be laid before Parliament

Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or two successive sessions and if before the expiry of the session in which it is so laid or the session immediately following 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 31. Validation of fixation of certain minimum rates of wages

Where during the period -

(a) commencing on the 1st day of April 1952 and ending with the date of the commencement of the Minimum Wages (Amendment) Act 1954 (26 of 1954); or

(b) commencing on the 31st day of December 1954 and ending with the date of the commencement of the Minimum Wages (Amendment) Act 1957 (30 of 1957); or

(c) commencing on the 31st day of December 1959 and ending with the date of the commencement of the Minimum Wages (Amendment) Act 1961 (31 of 1961) minimum rate of wages have been fixed by an appropriate government as being payable to employees employed in any employment specified in the Schedule in the belief or purported belief that such rates were being fixed under clause (a) of sub-section (1) of section 3 as in force immediately before the commencement of the Minimum Wages (Amendment) Act 1954 (26 of 1954) or the Minimum Wages (Amendment) Act 1957 (30 of 1957) or the Minimum Wages

(Amendment) Act 1961 (31 of 1961) as the case may be such rates shall be deemed to have been fixed in accordance with law and shall not be called in question in any court on the ground merely that the relevant date specified for the purpose in that clause had expired at the time the rates were fixed :

Provided that nothing contained in this section shall extend or be construed to extend to affect any person with any punishment or penalty whatsoever by reason of the payment by him by way of wages to any of his employees during any period specified in this section of an amount which is less than the minimum rates of wages referred to in this section or by reason of non-compliance during the period aforesaid with any order or the rule issued under section 13.

Schedule

Part 1

Employment in any wollen carpet making or shawl weaving establishment.
Employment in any rice mill flour mill or dal mill.
Employment in any tobacco (including bidi making) manufactory.
Employment in any plantation that is to say any estate which is maintained for the purpose of growing cinchona rubber tea or coffee.
Employment in any oil mill.
Employment under any local authority.
Employment on the construction or maintenance of roads or in building operations.
Employment in stone breaking or stone crushing.
Employment in any lac manufactory.
Employment in any mica works.
Employment in public motor transport.
Employment in tanneries and leather manufactory.
Employment in gypsum mines.
Employment in barytes mines.
Employment in bauxite mines.
Employment in manganese mines.
Employment in the maintenance of buildings and employment in the construction and maintenance of runways.
Employment in china clay mines.
Employment in kyantite mines.
Employment in copper mines.
Employment in clay mines covered under the Mines Act 1952 (35 of 1952).
Employment in magnesite mines covered under the Mines Act 1952 (35 of 1952).
Employment in white clay mines.
Employment in stone mines.

Schedule

PART II

(1) Employment in agriculture that is to say in any form of farming including the cultivation and tillage of the soil dairy farming the production cultivation growing and harvesting of any agricultural or horticultural commodity the raising of live-stock bees or poultry and any practice performed by a farmer or on a farm as incidental to or in conjunction with farm operation (including any forestry or timbering operations and the preparation for market and delivery to storage or to market or to carriage for transportation to market of farm produce).

Central Excise Act

November 30, 2014

Section 1: Short title, extent, and commencement

¹(1) This Act may be called the Central Excise Act, 1944.
(2) It extends 6 to the whole of India. ²[***]
(3) It shall come into force on such date ³ as the Central Government may, by notification in the Official Gazette, appoint in this behalf.

—————

1. Subs. by Act 33 of 1996, sec. 71, for sub-section (1) (w.e.f. 28-9-1996).

2. The words “except the State of Jammu and Kashmir” omitted by Act 41 of 1954, sec. 2 and Sch. (w.e.f. 8-10-1954).

3. Came into force on 28th February, 1944, see Notification No. III-D, dated 26th February, 1944, Gazette of India, Extra., 1944, p. 293.

Section 2. DEFINITIONS.

In this Act, unless there is anything repugnant in the subject or context, -

¹[(a) “adjudicating authority” means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), ²[Commissioner of Central Excise (Appeals)] or Appellate Tribunal;]

³[(aa) “Appellate Tribunal” means the Customs, Excise and ⁴[Service Tax] Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962);]

⁵[(aaa)] “broker” or “commission agent” means a person who in the ordinary course of business makes contracts for the sale or purchase of excisable goods for others;

⁶[(b)] “Central Excise Officer” means the Chief Commissioner of Central Excise, Commissioner of Central Excise, Commissioner of Central Excise (Appeals), Additional Commissioner of Central Excise, ⁷[Joint Commissioner of Central Excise,] Deputy Commissioner of Central Excise, Assistant Commis­sioner of Central Excise or any other officer of the Central Excise Department, or any person (including an officer of the State Government) invested by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) with any of the powers of a Central Excise Officer under this Act;

(c) “curing” includes wilting, drying, fermenting and any process for rendering an unmanufactured product fit for marketing or manufacture;

(d) “excisable goods” means goods specified in ⁸[the First Schedule and the Second Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986)] as being subject to a duty of excise and includes salt;

(e) “factory” means any premises, including the precincts there­of, wherein or in any part of which excisable goods other than salt are manufactured, or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on;

⁹[(ee) “fund” means the Consumer Welfare Fund established under section 12C];

¹⁰[(f) “manufacture” includes any process —

(i) incidental or ancillary to the completion of a manufactured product;

(ii) which is specified in relation to any goods in the section or Chapter notes of ¹¹[The First Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to ¹²[manufacture; or]

¹³[(iii) which in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer;]

And the word “manufacture” shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account;

¹⁴(ff) “National Tax Tribunal” means the National Tax Tribunal established under section 3 of the National Tax Tribunal Act, 2005 (49 of 2005);]

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

(h) “sale” and “purchase”, with their grammatical variations and cognate expressions, mean any transfer of the possession of goods by one person to another in the ordinary course of trade or business for cash or deferred payment or other valuable consider­ation;

¹⁵[***]

¹⁶[***]

(k) “wholesale dealer” means a person who buys or sells excisable goods wholesale for the purpose of trade or manufacture, and includes a broker or commission agent who, in addition to making contracts for the sale or purchase of excisable goods for others, stocks such goods belonging to others as an agent for the purpose of sale.

—————

1. Ins. by Act 44 of 1980, sec. 50 and Sch. V (w.e.f. 11-10-1982).

2. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise (Appeals)” (w.e.f. 26-5-1995).

3. Ins. by Act 44 of 1980, sec. 50 and Sch. V (w.e.f. 11-10-1982).

4. Subs. by Act 32 of 2003, sec. 135, for “Gold (Control)” (w.e.f 14-5-2003).

5. Clause (a) relettered as clause (aaa) by Act 44 of 1980, sec. 50 and Sch. V (w.e.f. 11-10-1982).

6. Subs. by Act 22 of 1995, sec. 71, for clause (b) (w.e.f. 26-5-1995).

7. Ins. by Act 27 of 1999, sec. 120 (w.e.f. 11-5-1999).

8. Subs. by Act 27 of 1999, sec. 119, for “the Schedule” (w.e.f. 11-5-1999). Earlier they were substituted by Act 5 of 1986, sec. 4, for “the First Schedule” (w.e.f. 28-2-1986).

9. Clause (ee) ins. by Act 40 of 1991, sec. 2 (w.e.f. 20-9-1991). Earlier clause (ee) was inserted by Act 25 of 1950, sec. 11 ans Sch. IV and was omitted by Act 41 of 1954, sec. 2 and Sch. (w.e.f. 8-10-1954).

10. Subs. by Act 5 of 1986, sec. 4, for clause (f) (w.e.f. 28-2-1986).

11. Subs. by Act 27 of 1999, sec. 120, for “the Schedule” (w.e.f. 11-5-1999).

12. Subs. by Act 20 of 2002, sec. 132, for “manufacture” (w.e.f. 11-5-2002).

13. Subs. by Act 32 of 2003, sec. 135, for sub-clause (iii) (w.e.f. 14-5-2003). Earlier sub-clause (iii) was inserted by Act 20 of 2002, sec. 132 (w.e.f. 11-5-2002).

14. Ins. by the Act 49 of 2005, sec. 30 and Sch., Pt. VII-1 (w.e.f. 28-12-2005).

15. Clauses (i) and (j) omitted by Act 33 of 1996, sec. 72 (w.e.f. 28-9-1996).

16. Clause (jj) omitted by Act 25 of 1950, sec. 11 and Sch. IV. Earlier clause (jj) was inserted by the A.O. 1950.

Section 2 A. References of certain expressions.

¹2A. References of certain expressions.—In this Act, save as otherwise expressly provided and unless the context otherwise requires, references to the expressions “duty”, “duties”, “duty of excise” and “duties of excise” shall be construed to include a reference to “Central Value Added Tax (CENVAT)”.]

—————

1.  Ins. by  Act 10 of  2000,  sec. 91 (w.e.f. 12-5-2000).

Section 3. Duties specified in the Schedule to the Central Excise Tariff Act, 1985 to be levied.

(1) ¹[There shall be levied and collected in such manner as may be prescribed,—

(a) ²[a duty of excise, to be called the Central Value Added Tax (CENVAT)] on all excisable goods ³[(excluding goods produced or manufactured in special economic zones)]* which are produced or manufactured in India as,] and at the rates, set forth in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986);

a special duty of excise, in addition to the duty of excise specified in clause (a) above, on excisable goods ³[(excluding goods produced or manufactured in special economic zones)]* specified in the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) which are produced or manufactured in India, as, and at the rates, set forth in the said Second Schedule:]

⁴[Provided that the duties of excise which shall be levied and collected on any 5[excisable goods which are produced or manufac­tured,—

⁶[***]

(ii) by a hundred per cent export oriented undertaking and ⁷[brought to any other place in India],

shall be an amount equal to] the aggregate of the duties of customs which would be leviable ⁸[under the Customs Act, 1962 (52 of 1962) or any other law for the time being in force] on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value, the value of such excisable goods shall, notwithstanding anything contained in any other provision of this Act, be determined in accordance with the provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975 (51 of 1975).

⁹[Explanation 1.—Where in respect of any such like goods, any duty of customs leviable for the time being in force is leviable at different rates, then, such duty shall, for the purposes of this proviso, be deemed to be leviable at the highest of those rates.]

¹⁰[Explanation 2.—In this proviso,—

¹¹[***]

¹¹[***]

(ii) “hundred per cent export-oriented undertaking” means an undertaking which has been approved as a hundred per cent. ex­port-oriented undertaking by the Board appointed in this behalf by the Central Government in exercise of the powers conferred by section 14 of the Industries (Development and Regulation) Act, 1951 (65 of 1951), and the rules made under that Act.]]

¹²[(iii) “Special Economic Zone” has the meaning assigned to it in clause (za) of section 2 of the Special Economic Zones Act, 2005 (28 of
2005).]

¹³[(1A) The provisions of sub-section (1) shall apply in respect of all excisable goods other than salt which are produced or manufactured in India by, or on behalf of, Government, as they apply in respect of goods which are not produced or manufactured by Government.]

(2) The Central Government may, by notification in the Official Gazette, fix, for the purpose of levying the said duties, tariff values of any articles enumerated, either specifically or under general headings, in ¹⁴[the First Schedule and the Second Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986)] as chargeable with duty ad valorem and may alter any tariff values for the time being in force.

¹⁵[(3) Different tariff values may be fixed—

(a) for different classes or descriptions of the same excisable goods; or

(b) for excisable goods of the same class or description—

(i) produced or manufactured by different classes of producers or manufacturers; or

(ii) sold to different classes of buyers:

Provided that in fixing different tariff values in respect of excisable
goods falling under sub-clause (i) or sub-clause (ii), regard shall be had
to the sale prices charged by the different classes of producers or manufacturers or, as the case may be, the normal practice of the wholesale trade in such goods.]

———-

1. Subs. by Act 27 of 1999, sec. 121, for certain words (w.e.f. 11-5-1999).

2. Subs. by Act 10 of 2000, sec. 92, for “a duty of excise” (w.e.f. 12-5-2000).

3. Ins. by Act 20 of 2002, sec. 133 (w.e.f. 11-5-2002).

* This shall be effective from such date appointed by the Central Government by Notification in the Official Gazette.

4. Ins. by Act 14 of 1982, sec. 46 (w.e.f. 11-5-1982).

4. Subs. by Act 21 of 1984, sec. 45, for certain words (w.e.f. 11-5-1984).

6. Clause (i) omitted by Act 22 of 2007, sec. 115(i) (w.e.f. 11-5-2007). Earlier clause (i) was amended by Act 14 of 2001, sec. 120 (w.e.f. 11-5-2001) and by Act 20 of 2002, sec. 133(ii)(a) (w.e.f. 11-5-2002). Clause (i), before omission by Act 22 of 2007, stood as under:

“(i) in a free trade zone or a special economic zone and brought to any other place in India; or”.

7. Subs. by Act 14 of 2001, sec. 120, for “allowed to be sold in India” (w.e.f. 11-5-2001).

8. Subs. by Act 10 of 2000, sec. 92, for “under section 12 of the Customs Act, (52 of 1962)” (w.r.e.f. 11-5-1982).

9. Subs. by Act 10 of 2000, sec. 92, for Explanation 1 (w.r.e.f. 11-5-1982).

10. Subs. by Act 21 of 1984, sec. 45, for Explanation 2 (w.e.f. 11-5-1984).

11. Clause (i) omitted by Act 22 of 2007, sec. 115(ii)(a) (w.e.f. 11-5-2007). Earlier clause (i) was substituted by Act 20 of 2002, sec. 133(ii)(b) (w.e.f. 11-5-2002). Clause (i), before omission by Act 22 of 2007, stood as under:

“(i) “free trade zone” means a zone which the Central Government may, by notification in the Official Gazette, specify in this behalf;”.

12. Subs. by Act 22 of 2007, sec. 115(ii)(b), for clause (iii) (w.e.f. 11-5-2007). Earlier clause (iii) was inserted by Act 14 of 2001, sec. 120 (w.e.f. 11-5-2001). Clause (iii), before substitution by Act 22 of 2007, stood as under:

“(iii) “special economic zone” means a zone which the Central Government may, by notification in the Official Gazette, specify in this behalf.”.

13. Subs. by Act 30 of 1963, sec. 3, for sub-section (1A) (w.e.f. 1-10-1963). Earlier sub-section (1A) was inserted by Act 45 of 1951, sec. 6 (w.e.f. 27-8-1951).

14. Subs. by Act 27 of 1999, sec. 119, for “the Schedule” (w.e.f. 11-5-1999). Earlier they were substituted by Act 5 of 1986, sec. 4, for “the First Schedule” (w.e.f. 28-2-1986).

15. Subs. by Act 25 of 1978, sec. 19, for sub-section (3) (w.e.f. 1-7-1978).

16. Section 3A omitted by Act 14 of 2001, sec. 121 (w.e.f. 11-5-2001). Earlier section 3A was inserted by Act 81 of 1956, sec. 2 (w.e.f. 22-12-1956) and was repealed by Act 58 of 1960,

sec. 2 and Sch. I (w.e.f. 26-12-1960) and again inserted by Act 26 of 1997, sec. 81 (w.e.f. 14-5-1997).

Section 3 A . POWER OF CENTRAL GOVERNMENT TO CHARGE EXCISE DUTY ON THE BASIS OF CAPACITY OF PRODUCTION IN RESPECT OF NOTIFIED GOODS. 

(1) Notwithstanding anything contained in section 3, where the Central Government, having regard to the nature of the process of manufacture or production of excisable goods of any specified description, the extent of evasion of duty in regard to such goods or such other factors as may be relevant, is of the opinion that it is necessary to safeguard the interest of revenue, specify, by notification in the Official Gazette, such goods as notified goods and there shall be levied and collected duty of excise on such goods in accordance with the provisions of this section.

(2) Where a notification is issued under sub-section (1), the Central Government may, by rules, provide for determination of the annual capacity of production, or such factor or factors relevant to the annual capacity of production of the factory in which such goods are produced, by the Commissioner of Central Excise and such annual capacity of production shall be deemed to be the annual production of such goods by such factory :

Provided that where a factory producing notified goods is in operation only during a part of the year, the production thereof shall be calculated on proportionate basis of the annual capacity of production.

(3) The duty of excise on notified goods shall be levied, at such rate as the Central Government may by notification in the Official Gazette specify, and collected in such manner as may be prescribed :

Provided that, where a factory producing notified goods did not produce the notified goods during any continuous period of not less than seven days, duty calculated on a proportionate basis shall be abated in respect of such period if the manufacturer of such goods fulfils such conditions as may be prescribed.

(4) Where an assessee claims that the actual production of notified goods in his factory is lower than the production determined under sub-section (2), the Commissioner of Central Excise shall, after giving an opportunity to the assessee to produce evidence in support of his claim, determine the actual production and redetermine the amount of duty payable by the assessee with reference to such actual production at the rate specified in sub-section (3).

(5) Where the Commissioner of Central Excise determines the actual production under sub-section (4), the amount of duty already paid, if any, shall be adjusted against the duty so redetermined and if the duty already paid falls short of, or is in excess of, the duty so redetermined, the assessee shall pay the deficiency or be entitled to a refund, as the case may be.

(6) The provisions of this section shall not apply to goods produced or manufactured, -

(i) in a free trade zone and brought to any other place in India; or

(ii) by a hundred per cent export-oriented undertaking and allowed to be sold in India.

Explanation 1 : For the removal of doubts, it is hereby clarified that for the purposes of section 3 of the Customs Tariff Act, 1975 (51 of 1975), the duty of excise leviable on the notified goods shall be deemed to be the duty of excise leviable on such goods under 13a the First Schedule and Second Schedule 13a to the Central Excise Tariff Act, 1985 (5 of 1986), read with any notification for the time being in force.

Explanation 2 : For the purposes of this section the expressions “free trade zone” and “hundred per cent export-oriented undertaking” shall have the meanings assigned to them in section 3. 24

Section 4. VALUATION OF EXCISABLE GOODS FOR PURPOSES OF CHARGING OF DUTY OF EXCISE.

¹[Valuation of excisable goods for purposes of charging of duty of excise.—(1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall—

(a) in a case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer of goods are not related and the price is the sole consideration for the sale, be the transaction value;

(b) in any other case, including the case where the goods are not sold, be the value determined in such manner as may be prescribed.

²[Explanation.—For the removal of doubts, it is hereby declared that the price-cum-duty of the excisable goods sold by the assessee shall be the price actually paid to him for the goods sold and the money value of the additional consideration, if any, flowing directly or indirectly from the buyer to the assessee in connection with the sale of such goods, and such price-cum-duty, excluding sales tax and other taxes, if any, actually paid, shall be deemed to include the duty payable on such goods.]

(2) The provisions of this section shall not apply in respect of any excisable goods for which a tariff value has been fixed under sub-section (2) of section 3.

(3) For the purposes of this section,—

(a) “assessee” means the person who is liable to pay the duty of excise under this Act and includes his agent;

(b) persons shall be deemed to be “related” if—

(i) they are inter-connected undertakings;

(ii) they are relatives;

(iii) amongst them the buyer is a relative and distributor of the assessee, or a sub-distributor of such distributor; or

(iv) they are so associated that they have interest, directly or indirectly, in the business of each other.

Explanation.—In this clause—

(i) “inter-connected undertakings” shall have the meaning assigned to it in clause (g) of section 2 of the Monopolies and Restrictive Trade Practices Act, 1969 (64 of 1969); and

(ii) “relative” shall have the meaning assigned to it in clause (41) of section 2 of the Companies Act, 1956 (1 of 1956);

(c) “place of removal” means —

(i) a factory or any other place or premises of production or manufacture of the excisable goods;

(ii) a warehouse or any other place on premises wherein the excisable goods have been permitted to be deposited without ³[payment of duty;]

⁴[(iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory;] from where such goods are removed;

⁴[(cc) “time of removal”, in respect of the excisable goods removed from the place of removal referred to in sub-clause (iii) of clause (c), shall be deemed to be the time at which such goods are cleared from the factory;]

(d) “transaction value” means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods.]

—————

1. Subs. by Act 10 of 2000, sec. 94 , for section 4 (w.e.f. 1-4-2000). Earlier section 4 was substituted by Act 22 of 1973, sec. 2 (w.e.f. 1-10-1975).

2. Ins. by Act 32 of 2003, sec. 136 (w.e.f. 14-5-2003).

3. Subs. by Act 32 of 2003, sec. 136, for “payment of duty,” (w.e.f. 14-5-2003).

4. Ins. by Act 32 of 2003, sec. 136 (w.e.f. 14-5-2003).

Section 4 A. VALUATION OF EXCISABLE GOODS WITH REFERENCE TO RETAIL SALE PRICE.

(1) The Central Government may, by notification in the Official Gazette, specify any goods, in relation to which it is required, under the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) or the rules made there under or under any other law for the time being in force, to declare on the package thereof the retail sale price of such goods, to which the provisions of sub-section (2) shall apply.

(2) Where the goods specified under sub-section (1) are excisable goods and are chargeable to duty of excise with reference to value, then, notwithstanding anything contained in section 4, such value shall be deemed to be the retail sale price declared on such goods less such amount of abatement, if any, from such retail sale price as the Central Government may allow by notification in the Official Gazette.

(3) The Central Government may, for the purpose of allowing any abatement under sub-section (2), take into account the amount of duty of excise, sales tax and other taxes, if any, payable on such goods.

²[(4) Where any goods specified under sub-section (1) are excisable goods and the manufacturer—

(a) removes such goods from the place of manufacture, without declaring the retail sale price of such goods on the packages or declares a retail sale price which is not the retail sale price as required to be declared under the provisions of the Act, rules or other law as referred to in sub-section (1); or

(b) tampers with, obliterates or alters the retail sale price declared on the package of such goods after their removal from the place of manufacture,

then, such goods shall be liable to confiscation and the retail sale price of such goods shall be ascertained in the prescribed manner and such price shall be deemed to be the retail sale price for the purposes of this section.

Explanation 1.—For the purposes of this section, “retail sale price” means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers, and all charges towards advertisement, delivery, packing, forwarding and the like and the price is the sole consideration for such sale:

Provided that in case the provisions of the Act, rules or other law as referred to in sub-section (1) require to declare on the package, the retail sale price excluding any taxes, local or otherwise, the retail sale price shall be construed accordingly.

Explanation 2.—For the purposes of this section,—

(a) where on the package of any excisable goods more than one retail sale price is declared, the maximum of such retail sale prices shall be deemed to be the retail sale price;

(b) where the retail sale price, declared on the package of any excisable goods at the time of its clearance from the place of manufacture, is altered to increase the retail sale price, such altered retail sale price shall be deemed to be the retail sale price;

(c) where different retail sale prices are declared on different packages for the sale of any excisable goods in packaged form in different areas, each such retail sale price shall be the retail sale price for the purposes of valuation of the excisable goods intended to be sold in the area to which the retail sale price relates.]

—————

1. Ins. by Act 26 of 1997, sec. 82 (w.e.f. 14-5-1997).

2. Subs. by Act 32 of 2003, sec. 137, for sub-section (4) (w.e.f. 14-5-2003). Earlier sub-section (4) was inserted by Act 27 of 1999, sec. 122 (w.e.f. 11-5-1999).

Section 5. REMISSION OF DUTY ON GOODS FOUND DEFICIENT IN QUANTITY.

¹[5. Remission of duty on goods found deficient in quantity.—(1) The Central Government may, by rules made under this section, provide for remission of duty of excise leviable on any excisable goods which due to any natural cause are found to be deficient in quantity.

(2) Any rules made under sub-section (1) may, having regard to the nature of the excisable goods or of processing or of curing thereof, the period of their storage or transit and other rele­vant considerations, fix the limit or limits of percentage beyond which no such remission shall be allowed:

Provided that different limit or limits of percentage may be fixed for different varieties of the same excisable goods or for different areas or for different seasons.]

—————

1. Ins. by Act 25 of 1978, sec. 20 (w.e.f. 1-7-1978). Earlier section 5 was omitted by Act 41 of 1954, sec. 2 and Sch. (w.e.f. 8-10-1954).

Section 5 A. POWER TO GRANT EXEMPTION FROM DUTY OF EXCISE.

¹[5A. Power to grant exemption from duty of excise.—(1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable thereon:

Provided that, unless specifically provided in such notification, no exemption therein shall apply to excisable goods which are produced or manufactured—

(i) in a ²[free trade zone ³[or a special economic zone]] and brought to any other place in India; or

(ii) by a hundred per cent. export-oriented undertaking and 4[brought to any other place in India].

Explanation.—In this proviso,²[“free trade zone” ³[,“special economic zone”]] and “hundred per cent. export-oriented undertaking” shall have the same mean­ings as in Explanation 2 to sub-section (1) of section 3.

⁵[(1A) For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods.]

⁶[(2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by special order in each case, exempt from payment of duty of excise, under circumstances of an exceptional nature to be stated in such order, any excisable goods on which duty of excise is leviable.]

⁷[(2A) The Central Government may, if it considers it necessary or expedient so to do for the purpose of clarifying the scope or applicability of any notification issued under sub-section (1) or order issued under sub-section (2) insert an explanation in such notification or order, as the case may be, by notification in the Official Gazette at any time within one year of issue of the notification under sub-section (1) or order under sub-section (2), and every such explanation shall have effect as if it had always been the part of the first such notification or order, as the case may be.]

(3) An exemption under sub-section (1) or sub-section (2) in respect of any excisable goods from any part of the duty of excise leviable thereon (the duty of excise leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods at a rate ex­pressed in a form or method different from the form or method in which the statutory duty is leviable and any exemption granted in relation to any excisable goods in the manner provided in this sub-section shall have effect subject to the condition that the duty of excise chargeable on such goods shall in no case exceed the statutory duty.

Explanation.—“Form or method”, in relation to a rate of duty of excise means the basis, namely, valuation, weight, number, length, area, volume or other measure with reference to which the duty is leviable.

(4) Every notification issued under sub-rule (1), and every order made under sub-rule (2) of rule 8 of the Central Excise Rules, 1944, and in force immediately before the commencement of the Customs and Central Excise Laws (Amendment) Act, 1987 shall be deemed to have been issued or made under the provisions of this section and shall continue to have the same force and effect after such commencement until it is amended, varied, rescinded or superseded under the provisions of this section.]

⁸[(5) Every notification issued under sub-section (1) ⁹[or sub-section (2A)] shall,—

(a) unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette;

(b) also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations, Customs and Central Excise, New Delhi, under the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963).

(6) Notwithstanding anything contained in sub-section (5), where a notification comes into force on a date later than the date of its issue, the same shall be published and offered for sale by the said Directorate of Publicity and Public Relations on a date on or before the date on which the said notification comes into force.]

———-

1. Ins. by Act 29 of 1988, sec. 9 (w.e.f. 19-5-1988).

2. Subs. by Act 14 of 2001, sec. 122, for “free trade zone” (w.e.f. 11-5-2001).

3. The words “or a special economic zone” shall stand omitted with effect from such date as may be appointed by the Central Government, vide Act 20 of 2002, sec. 134.

4. Subs. by Act 14 of 2001, sec. 122, for “allowed to be sold in India” (w.e.f. 11-5-2001).

5. Ins. by Act 18 of 2005, sec. 75 (w.e.f. 13-5-2005).

6. Subs. by Act 32 of 2003, sec. 138, for sub-section (2) (w.e.f. 14-5-2003). Earlier sub-section (2) was substituted by Act 27 of 1999, sec. 123 (w.e.f. 11-5-1999).

7. Ins. by Act 20 of 2002, sec. 134.

8. Ins. by Act 21 of 1998, sec. 106 (w.e.f. 1-8-1998).

9.Ins. by Act 20 of 2002, sec. 134 (w.e.f. 11-5-2002).

Section 5 B. Non-reversal of CENVAT credit.

¹[5B. Non-reversal of CENVAT credit.—Where an assessee has paid duty of excise on a final product and has been allowed credit of the duty or tax or cess paid on inputs, capital goods and input services used in making of the said product, but subsequently the process of making the said product is held by the court as not chargeable to excise duty, the Central Government may, by notification, order for non-reversal of such credit allowed to the assessee subject to such conditions as may be specified in the said notification:

Provided that the order for non-reversal of credit shall not apply where an assessee has preferred a claim for refund of excise duty paid by him:

Provided further that the Central Government may also specify in the notification referred to above for non-reversal of credit, if any, taken by the buyer of the said product.]

—————

1. Ins. by the Finance Act, 2007.

Section 6. REGISTRATION OF CERTAIN PERSONS.

¹ REGISTRATION OF CERTAIN PERSONS.

Any prescribed person who is engaged in -

(a) The production or manufacture or any process of production or manufacture of any specified goods included in ²the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), or

(b) The wholesale purchase or sale (whether on his own account or as a broker or commission agent) or the storage of any specified goods included in the the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986).

Shall get himself registered with the proper officer in such manner as may be prescribed.

—————

1. Subs. by Act 18 of 1992, sec. 113 (w.e.f. 14-5-1992).

2. Subs. by Act 27 of 1999, sec. 119, for “the Schedule” (w.e.f. 11-5-1999).

Section 7. Form and Conditions of licence.

[Rep. by the Finance Act, 1992 (18 of 1992), sec. 113 (w.e.f. 14-5-1992).]

Section 8. RESTRICTION ON POSSESSION OF EXCISABLE GOODS.

From such date as may be specified in this behalf by the Central Government by notification in the Official Gazette, no person shall, except as provided by rules made under this Act, have in his possession ¹[any goods specified in the Second Schedule] in excess of such quantity as may be prescribed for the purposes of this section as the maximum amount of such goods or of any variety of such goods which may be possessed at any one time by such a person.

—————

1. Subs. by Act 18 of 1956, sec. 34, for certain words (w.e.f. 27-4-1956).

Section 9. OFFENCES AND PENALTIES

¹(1) Whoever commits any of the following offences, namely : -

²(a) Contravenes any of the provisions of section 8 or of a rule made under clause (iii) or clause (xxvii) of sub-section (2) of section 37;

(b) Evades the payment of any duty payable under this Act;

³(bb) Removes any excisable goods in contravention of any of the provisions of this Act or any rules made there under or in any way concerns himself with such removal;

(bbb) Acquires possession of, or in any way concerns himself in transporting, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or any rule made thereunder;

⁴(bbbb) Contravenes any of the provisions of this Act or the rules made there under in relation to credit of any duty allowed to be utilised towards payment of excise duty on final products;

(c) Fails to supply any information which he is required by rules made under this Act to supply, or (unless with a reasonable belief, the burden of proving which shall be upon him, that the information supplied by him is true) supplies false information;

(d) Attempts to commit, or abets the commission of, any of the offences mentioned in clauses (a) and (b) of this section;

⁵Shall be punishable, –

(i) In the case of an offence relating to any excisable goods, the duty leviable thereon under this Act exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine :

Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court such imprisonment shall not be for a term of less than six months;

(ii) In any other case, with imprisonment for a term which may extend to three years or with fine or with both.

⁶(2) If any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable ‘for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine :

Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court such imprisonment shall not be for a term of less than six months.

(3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than six months, namely :-

(i) The fact that the accused has been convicted for the first time for an offence under this Act;

(ii) The fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods in relation to such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence;

(iii) The fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party in the commission of the offence;

(iv) The age of the accused.

—————

1. Section 9 re-numbered as sub-section (1) of that section by Act 36 of 1973, sec. 20 (w.e.f. 1-9-1973).

2. Subs. by Act 18 of 1992, sec. 113, for clause (a) (w.e.f. 14-5-1992).

3. Ins. by Act 36 of 1973, sec. 20 (w.e.f. 1-9-1973).

4. Ins. by Act 21 of 1998, sec. 107 (w.e.f. 1-8-1998).

5. Subs. by Act 36 of 1973, sec. 20, for certain words (w.e.f. 1-9-1973).

6. Ins. by Act 36 of 1973, sec. 20 (w.e.f. 1-9-1973).

Section 9 A. CERTAIN OFFENCES TO BE NON-COGNIZABLE.

¹ CERTAIN OFFENCES TO BE NON-COGNIZABLE.

²(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898) ³, offences under section 9 shall be deemed to be non-cognizable within the meaning of that Code.

⁴[(2) Any offence under this Chapter may, either before or after the institution of prosecution, be compounded by the Chief Commissioner of Central Excise on payment, by the person accused of the offence to the Central Government, of such compounding amount as may be prescribed.]

—————

1. Ins. by Act 36 of 1973, sec. 21 (w.e.f. 1-9-1973).

2. Section 9A renumbered as sub-section (1) thereof by Act 23 of 2004, sec. 79 (w.e.f. 10-9-2004).

3. See now section 9 of the Code of Criminal Procedure, 1973 (2 of 1974).

4. Ins. by Act 23 of 2004, sec. 79 (w.e.f. 10-9-2004).

Section 9 AA. OFFENCES BY COMPANIES.

¹OFFENCES BY COMPANIES.

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

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he 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 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.

—————

1. Ins. by Act 79 of 1985, sec. 2 (w.e.f. 27-12-1985).

Section 9 B. POWER OF COURT TO PUBLISH NAME, PLACE OF BUSINESS, ETC., OF PERSONS CONVICTED UNDER THE ACT. 

¹POWER OF COURT TO PUBLISH NAME, PLACE OF BUSINESS, ETC., OF PERSONS CONVICTED UNDER THE ACT

(1) Where any person is convicted under this Act for contravention of any of the provisions thereof, it shall be competent for the Court convicting the person to cause the name and place of business or residence of such person, nature of the contravention, the fact that the person has been so convicted and such other particulars as the Court may consider to be appropriate in the circumstances of the case, to be published at the expense of such person, in such newspapers or in such manner as the Court may direct.

(2) No publication under sub-section (1) shall be made until the period for preferring an appeal against the orders of the Court has expired without any appeal having been preferred, or such an appeal, having been preferred, has been disposed of.

(3) The expenses of any publication under sub-section (1) shall be recoverable from the convicted person as if it were a fine imposed by the Court.

—————

1. Ins. by Act 36 of 1973, sec. 21 (w.e.f. 1-9-1973).

Section 9 C. PRESUMPTION OF CULPABLE MENTAL STATE.

¹PRESUMPTION OF CULPABLE MENTAL STATE. (1) In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation : In this section, “culpable mental state” includes intention, motive, knowledge of a fact, and belief in, or reason to believe, a fact.

(2) For the purposes of this section, a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

—————

1. Ins. by Act 36 of 1973, sec. 21 (w.e.f. 1-9-1973).

Section 9 D. RELEVANCY OF STATEMENTS UNDER CERTAIN CIRCUMSTANCES .

¹ RELEVANCY OF STATEMENTS UNDER CERTAIN CIRCUMSTANCES .

(1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, -

(a) When the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or

(b) When the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice.

(2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court.

—————

1. Ins. by Act 36 of 1973, sec. 21 (w.e.f. 1-9-1973).

Section 9 E. APPLICATION OF SECTION 562 OF THE CODE OF CRIMINAL PROCEDURE, 1898, AND OF THE PROBATION OF OFFENDERS ACT, 1958.

¹APPLICATION OF SECTION 562 OF THE CODE OF CRIMINAL PROCEDURE, 1898, AND OF THE PROBATION OF OFFENDERS ACT, 1958.

(1) Nothing contained in section 562 of the Code of Criminal Procedure, 1898 47 (5 of 1898)², or in the Probation of Offenders Act, 1958 (20 of 1958), shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age.

(2) The provisions of sub-section (1) shall have effect notwithstanding anything contained in sub-section (3) of section 9.

—————

1. Ins. by Act 36 of 1973, sec. 21 (w.e.f. 1-9-1973).

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

Section 10. POWER OF COURTS TO ORDER FORFEITURE.

Any Court trying an offence under this Chapter may order the forfeiture to Government of any goods in respect of which the Court is satisfied that an offence under this Chapter has been committed, and may also order the forfeiture of any receptacles, packages or coverings in which such goods are contained and the animals, vehicles, vessels or other conveyances used in carrying the goods, and any implements or machinery used in the manufacture of the goods.

Section 11. RECOVERY OF SUMS DUE TO GOVERNMENT.

In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder, ¹[including the amount required to be paid to the credit of the Central Government under section 11D] the officer empowered by the ²[Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)] to levy such duty or require the payment of such sums may deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or con­trol, or may recover the amount by attachment and sale of excisa­ble goods belonging to such person; and if the amount payable is not so recovered he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector, on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as if it were an arrear of land revenue]:

³[Provided that where the person (hereinafter referred to as predecessor) from whom the duty or any other sums of any kind, as specified in this section, is recoverable or due, transfers or otherwise disposes of his business or trade in whole or in part, or effects any change in the ownership thereof, in consequence of which he is succeeded in such busniess or trade by any other person, all excisable goods, materials, preparations, plants, machineries, vessels, utensils, implements and articles in the custody or possession of the person so succeeding may also be attached and sold by such officer empowered by the Central Board of Excise and Customs, after obtaining written approval from the Commissioner of Central Excise, for the purposes of recovering such duty or other sums recoverable or due from such predecessor at the time of such transfer or otherwise disposal or change.]

—————

1. Ins. by Act 10 of 2000, sec. 96 (w.e.f. 12-5-2000).

2. Subs. by Act 54 of 1963, sec. 5, for “Central Board of Reve­nue” (w.e.f. 1-1-1964).

3. Ins. by Act 23 of 2004, sec. 80 (w.e.f. 10-9-2004).

Section 11 A. RECOVERY OF DUTIES NOT LEVIED OR NOT PAID OR SHORT-LEVIED OR SHORT-PAID OR ERRONEOUSLY REFUNDED.

¹[11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.—(1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or ²[erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder], a Central Excise Officer may, within ³[one year] from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice:

Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppres­sion of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, 4[as if ⁵[***]] for the words ⁶[“one year”], the words “five years” were substituted:

⁷[***]

Explanation.—Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of ⁷[one year] or five years, as the case may be.

⁸[(1A) When any duty of excise has not been levied or paid or has been short-levied or short paid or erroneously refunded, by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty, by such person or his agent, to whom a notice is served under the proviso to sub-section (1) by the Central Excise Officer, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under section 11AB and penalty equal to twenty-five per cent. of the duty specified in the notice or the duty so accepted by such person within thirty days of the receipt of the notice.]

(2) ⁹[¹⁰[Central Excise Officer]] shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined:

⁸[Provided that if such person has paid the duty in full together with, interest and penalty under sub-section (1A), the proceedings in respect of such person and other persons to whom notice is served under sub-section (1) shall, without prejudice to the provisions of sections 9, 9A and 9AA, be deemed to be conclusive as to the matters stated therein:

Provided further that, if such person has paid duty in part, interest and penalty under sub-section (1A), the Central Excise Officer, shall determine the amount of duty or interest not being in excess of the amount partly due from such person.]

¹¹[(2A) Where any notice has been served on a person under sub-section (1), the Central Excise Officer,—

(a) in case any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, where it is possible to do so, shall determine the amount of such duty, within a period of one year; and

(b) in any other case, where it is possible to do so, shall determine the amount of duty of excise which has not been levied or paid or has been short-levied or short-paid or erroneously refunded, within a period of six months,

from the date of service of the notice on the person under sub-section (1).

(2B) Where any duty or excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty ¹²[on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer] before service of notice on him under sub-section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the duty so paid:

Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of “one year” referred to in sub-section (1) shall be counted from the date of receipt of such information of payment.

Explanation 1.—Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty.

Explanation 2.—For the removal of doubts, it is hereby declared that the interest under section 11AB shall be payable on the amount paid by the person under this sub-section and also on the amount of short-payment of duty, if any, as may be determined by the Central Excise Officer, but for this sub-section.

(2C) The provisions of sub-section (2B) shall not apply to any case where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President.]

(3) For the purposes of this section—

(i) “refund” includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;

(ii) “relevant date” means,—

¹³[(a) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid—

(A) where under the rules made under this Act a periodical re­turn, showing particulars of the duty paid on the excisable goods removed during the period to which the said return relates, is to be filed by a manufacturer or a producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed;

(B) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules;

(C) in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder;]

(b) in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjust­ment of duty after the final assessment thereof;

(c) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund.]

—————

1. Ins. by Act 25 of 1978, sec. 21 (w.e.f. 1-8-1978).

2. Subs. by Act 10 of 2000, sec. 97, for “erroneously refunded” (w.r.e.f. 17-11-1980).

3. Subs. by Act 10 of 2000, sec. 97, for “six-months” (w.e.f. 12-5-2000).

4. Subs. by Act 79 of 1985, sec. 3, for “as if” (w.e.f. 27-12-1985).

5. The words ‘for the words “Central Excise Officer”, the words “Collector of Central Excise”, and’ omitted by Act 18 of 1992, sec. 113 (w.e.f. 14-5-1992).

6. Ins. by Act 10 of 2000, sec. 97 (w.e.f. 12-5-2000).

7. Second and third provisos omitted by Act 32 of 2003, sec. 139 (w.e.f. 14-5-2003).

8. Ins. by Act 29 of 2006, sec. 35 (w.e.f. 13-7-2006).

9. Subs. by Act 79 of 1985, sec. 3, for “The Assistant Collector of Central Excise” (w.e.f. 27-12-1985).

10. Subs. by Act 18 of 1992, sec. 113, for “Assistant Collector of Central Excise or, as the case may be, the Collector of Central Excise” (w.e.f. 14-5-1992).

11. Ins. by Act 14 of 2001, sec. 123 (w.e.f. 11-5-2001).

12. Ins. by Act 32 of 2003, sec. 139 (w.e.f. 14-5-2003).

13. Subs. by Act 22 of 1995, sec. 72, for sub-clause (a) (w.e.f. 26-5-1995).

Section 11 AA. INTEREST ON DELAYED PAYMENT OF DUTY.

¹[11AA. Interest on delayed payment of duty.—²[(1)] ³[Subject to the provisions contained in section 11AB, where a person] chargeable with duty determined under sub-section (2) of section 11A, fails to pay such duty within three months from the date of determination, he shall pay, in addition to the duty, interest ⁴[at such rate not below ⁵[ten per cent.] and not exceeding thirty-six per cent. per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette] on such duty from the date immediately after the expiry of the said period of three months till the date of payment of such duty:

Provided that where a person chargeable with duty determined under sub-section (2) of section 11A before the date on which the Finance Bill, 1995 receives the assent of the President, fails to pay such duty within three months from such date, then, such person shall be liable to pay interest under this section from the date immediately after three months from such date, till the date of payment of such duty.

Explanation 1.—Where the duty determined to be payable is reduced by the Commissioner (Appeals), Appellate Tribunal ⁶[, National Tax Tribunal] or, as the case may be, the Court, the date of such determination shall be the date on which an amount of duty is first determined to be pay­able.

Explanation 2.—Where the duty determined to be payable is in­creased or further increased by the Commissioner (Appeals), Appellate Tribunal 6[, National Tax Tribunal] or, as the case may be, the Court, the date of such determination shall be,—

(a) for the amount of duty first determined to be payable, the date on which the duty is so determined;

(b) for the amount of increased duty, the date of order by which the increased amount of duty is first determined to be payable;

(c) for the amount of further increase of duty, the date of order on which the duty is so further increased].

⁷[(2) The provisions of sub-section (1) shall not apply to cases where the duty becomes payable on and after the date on which the Finance Bill, 2001 receives the assent of the President.]

—————

1. Ins. by Act 22 of 1995, sec. 73 (w.e.f. 26-5-1995).

2. Section 11AA renumbered as sub-section (1) thereof by Act 14 of 2001, sec. 124 (w.e.f. 11-5-2001).

3. Subs. by Act 33 of 1996, sec. 75, for “Where a person” (w.e.f. 28-9-1996).

4. Subs. by Act 10 of 2000, sec. 98, for certain words (w.e.f. 12-5-2000).

5. Subs. by Act 20 of 2002, sec. 135, for “eighteen per cent.” (w.e.f. 11-5-2002).

6. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VII-2 (w.e.f. 28-12-2005).

7. Ins. by Act 14 of 2001, sec. 124 (w.e.f. 11-5-2001).

Section 11 AB. INTEREST ON DELAYED PAYMENT OF DUTY.

¹[11AB. Interest on delayed payment of duty.—²[(1) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person who is liable to pay duty as determined under sub-section (2), or has paid the duty under sub-section 2(B), of section 11A, shall, in addition to the duty, be liable to pay interest at such rate not below ³[ten per cent.] and not exceeding thirty-six per cent. per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, from the first date of the month succeeding the month in which the duty ought to have been paid under this Act, or from the date of such erroneous refund, as the case may be, but for the provisions contained in sub-section (2), or sub-section (2B), of section 11A till the date of payment of such duty:

Provided that in such cases where the duty becomes payable consequent to issue of an order, instruction or direction by the Board under section 37B, and such amount of duty payable is voluntarily paid in full, without reserving any right to appeal against such payment at any subsequent stage, within forty-five days from the date of issue of such order, instruction or direction as the case may be, no interest shall be payable and in other cases the interest shall be payable on the whole of the amount, including the amount already paid.]

⁴[(2) The provisions of sub-section (1) shall not apply to cases where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President.]

Explanation 1.— Where the duty determined to be payable is reduced by the Commissioner (Appeals), the Appellate Tribunal 5[, National Tax Tribunal] or, as the case may be, the Court, the interest shall be payable on such reduced amount of duty.

Explanation 2.—Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), the Appellate Tribunal ⁵[, National Tax Tribunal] or, as the case may be, the Court, the interest shall be payable on such increased or further increased amount of duty.]

—————

1. Ins. by Act 33 of 1996, sec. 76 (w.e.f. 28-9-1996).

2. Subs. by Act 14 of 2001, sec. 125, for sub-section (1) (w.e.f. 11-5-2001).

3. Subs. by Act 20 of 2002, sec. 136, for “eighteen per cent.” (w.e.f. 11-5-2002).

4. Subs. by Act 14 of 2001, sec. 125, for sub-section (2) (w.e.f. 11-5-2001).

5. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VII-3 (w.e.f. 28-12-2005).

Section 11 AC. PENALTY FOR SHORT-LEVY OR NON-LEVY OF DUTY IN CERTAIN CASES.

¹[11AC. Penalty for short-levy or non-levy of duty in certain cases.—Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub-section (2) of section 11A, shall also be liable to pay a penalty equal to the duty so determined:

²[Provided that where such duty as determined under sub-section (2) of section 11A, and the interest payable thereon under section 11AB, is paid within thirty days from the date of communication of the order of the Central Excise Officer determining such duty, the amount of penalty liable to be paid by such person under this section be twenty-five per cent. of the duty so determined:

Provided further that the benefit of reduced penalty under the first proviso shall be available if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso:

Provided also that where the duty determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, for the purposes of this section, the duty, as reduced or increased, as the case may be, shall be taken into account:

Provided also that in case where the duty determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of duty so increased, the interest payable thereon and twenty-five per cent. of the consequential increase of penalty have also been paid within thirty days of the communication of the order by which such increase in the duty takes effect.

Explanation.—For the removal of doubts, it is hereby declared that—

(1) the provisions of this section shall also apply to cases in which the order determining the duty under sub-section (2) of section 11A relates to notices issued prior to the date on which the Finance Act, 2000 receives the assent of the President;

(2) any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person.]

—————

1. Ins. by Act 33 of 1996, sec. 76 (w.e.f. 28-9-1996).

2. Subs. by Act 10 of 2000, sec. 100, for the proviso (w.e.f. 12-5-2000).

Section 11 B. CLAIM FOR REFUND OF DUTY.

¹[11B. Claim for refund of duty.—(1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the ²[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of ³[one year] ⁴[from the relevant date] ⁵[⁶[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A as the applicant may furnish to establish that the amount of duty of excise in rela­tion to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person:

Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991), such application shall be deemed to have been made under this sub-section as amended by the Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act:]

⁷[Provided further that] the limitation of ⁸[one year] shall not apply where any duty has been paid under protest.

⁹[***]

¹⁰[(2) If, on receipt of any such application, the ¹¹[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund:

Provided that the amount of duty of excise as determined by the ¹¹[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relata­ble to—

(a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;

(b) unspent advance deposits lying in balance in the applicant’s current account maintained with the ¹²[Commissioner of Central Excise];

(c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act;

(d) the duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person;

(e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person;

(f) the duty of excise borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify:

Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Cen­tral Government, the incidence of duty has not been passed on by the persons concerned to any other person.

(3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal of any Court in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2).

(4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notifica­tion, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the noti­fication is so laid before the House of the People and if Parlia­ment makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder.

(5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.]

¹³[Explanation.—For the purposes of this section,—

(A) “refund” includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;

(B) “relevant date” means,—

(a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods,—

(i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or

(ii) if the goods are exported by land, the date on which such goods pass the frontier, or

(iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India;

(b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid;

(c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory;

(d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full dis­charge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction;

¹⁴[(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;]

¹⁵[(ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order;]

¹⁶[(eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;]

¹⁷[(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;]

(f) in any other case, the date of payment of duty.]

———-

1. Ins. by Act 25 of 1978, sec. 21 (w.e.f. 17-11-1980).

2. Subs. by Act 22 of 1995, sec. 70, for “Assistant Collector of Central Excise” (w.e.f. 26-5-1995) and again subs. by Act 27 of 1999, sec. 119, for “Assistant Commissioner of Central Excise” (w.e.f. 11-5-1999).

3. Subs. by Act 10 of 2000, sec. 101, for “six months” (w.e.f. 12-5-2000).

4. Ins. by Act 44 of 1980, sec. 49, for “from the date of pay­ment of duty” (w.e.f. 21-8-1980).

5. Ins. by Act 40 of 1991, sec. 3 (w.e.f. 20-9-1991).

6.Subs. by Act 22 of 1995, sec. 74, for “in such form” (w.e.f. 26-5-1995).

7. Subs. by Act 40 of 1991, sec. 3, for “Provided that” (w.e.f. 20-9-1991).

8. Subs. by Act 10 of 2000, sec. 101, for “six months” (w.e.f. 12-5-2000).

9. Explanation omitted by Act 44 of 1980, sec 49 (w.e.f. 21-8-1980).

10. Subs. by Act 40 of 1991, sec. 3, for sub-sections (2) to (5) (w.e.f. 20-9-1991).

11. Subs. by Act 22 of 1995, sec. 70, for “Assistant Collector of Central Excise” (w.e.f. 26-5-1995) and again subs. by Act 27 of 1999, sec. 119, for “Assistant Commissioner of Central Excise” (w.e.f. 11-5-1999).

12. Subs. by Act 22 of 1995, 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

13. Subs. by Act 44 of 1980, sec. 49, for Explanation (w.e.f. 21-8-1980).

14. Subs. by Act 40 of 1991, sec. 3, for sub-clause (e) (w.e.f. 20-9-1991).

15. Ins by Act 33 of 1996, sec. 77 (w.e.f. 28-9-1996).

16. Ins. by Act 21 of 1998, sec. 108 (w.e.f. 1-8-1998).

17. Ins. by Act 22 of 2007, sec. 117 (w.e.f. 11-5-2007).

Section 11 BB. INTEREST ON DELAYED REFUNDS. 

¹INTEREST ON DELAYED REFUNDS.

If any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, ²not below ten per cent and not exceeding thirty per cent per annum as is for the time being fixed ³by the Board, on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty :

Provided that where any duty ordered to be refunded under sub-section (2) of section 11B in respect of an application under sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty.

Explanation : Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal ⁴[,National Tax Tribunal] or any court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal or, as the case may be, by the court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section.

—————

1. Ins. by Act 22 of 1995, sec. 75 (w.e.f. 26-5-1995).

2. Subs. by Act 14 of 2001, sec. 126, for “not below ten per cent.” (w.e.f. 11-5-2001).

3. Subs. by Act 10 of 2000, sec. 102, for “by the Board” (w.e.f. 12-5-2000)

4. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VII-4 (w.e.f. 28-12-2005).

Section 11 C. POWER NOT TO RECOVER DUTY OF EXCISE NOT LEVIED OR SHORT-LEVIED AS A RESULT OF GENERAL PRACTICE.

¹POWER NOT TO RECOVER DUTY OF EXCISE NOT LEVIED OR SHORT-LEVIED AS A RESULT OF GENERAL PRACTICE.

²(1)Notwithstanding anything contained in this Act, if the Central Government is satisfied -

(a) That a practice was, or is, generally prevalent regarding levy of duty of excise (including non-levy thereof) on any excisable goods; and

(b) That such goods were, or are, liable -

(i) To duty of excise, in cases where according to the said practice the duty was not, or is not being, levied, or

(ii) To a higher amount of duty of excise than what was, or is being, levied, according to the said practice,

Then, the Central Government may, by notification in the Official Gazette 74 direct that the whole of the duty of excise payable on such goods, or as the case may be, the duty of excise in excess of that payable on such goods, but for the said practice, shall not be required to be paid in respect of the goods on which the duty of excise was not, or is not being, levied, or was, or is being, short-levied, in accordance with the said practice.

³(2) Where any notification under sub-section (1) in respect of any goods has been issued, the whole of the duty of excise paid on such goods or, as the case may be, the duty of excise paid in excess of that payable on such goods, which would not have been paid if the said notification had been in force, shall be dealt with in accordance with the provisions of sub-section (2) of section 11B :

Provided that the person claiming the refund of such duty or, as the case may be, excess duty, makes an application in this behalf to the ⁴Assistant Commissioner of Central Excise, in the form referred to in sub-section (1) of section 11B, before the expiry of six months from the date of issue of the said notification.

—————

1. Ins. by Act 25 of 1978, sec. 21 (w.e.f. 1-7-1978).

2. Section 11C renumbered as sub-section (1) thereof by Act 29 of 1988, sec. 10 (w.e.f. 1-7-1988).

3. Subs. by Act 40 of 1991, sec. 4, for sub-section (2) (w.e.f. 20-9-1991). Earlier sub-section (2) was inserted by Act 29 of 1988, sec. 10 (w.e.f. 1-7-1988).

4. Subs. by Act 22 of 1995, sec. 70, for “Assistant Collector of Central Excise” (w.e.f. 26-5-1995).

Section 11 D. DUTIES OF EXCISE COLLECTED FROM THE BUYER TO BE DEPOSITED WITH THE CENTRAL GOVERNMENT.

¹[ Duties of excise collected from the buyer to be deposited with the Central Government.—(1) Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder, ²[every person who is liable to pay duty under this Act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this Act or the rules made thereunder from the buyer of such goods] in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government.

³[(2) Where any amount is required to be paid to the credit of the Central Government under sub-section (1) and which has not been so paid, the Central Excise Officer may serve, on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government.

(3) The Central Excise officer shall, after considering the representation, if any, made by the person on whom the notice is served under sub-section (2), determine the amount due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined.

(4) The amount paid to the credit of the Central Government under sub-section (1) of sub-section (3) shall be adjusted against the duty of excise, payable by the person on finalisation of assessment or any other proceeding for determination of the duty of excise relating to the excisable goods referred to in sub-section (1).

(5) Where any surplus is left after the adjustment under sub-section (4), the amount of such surplus shall either be credited to the Fund or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of section 11B and such person may make an application under that section in such cases within six months from the date of the public notice to be issued by the Assistant Commissioner of Central Excise for the refund of such surplus amount.]

—————

1. Ins. by Act 40 of 1991, sec. 5 (w.e.f. 20-9-1991).

2. Subs. by Act 10 of 2000, sec. 103, for certain words (w.r.e.f. 20-9-1991).

3. Subs. by Act 10 of 2000, sec. 103, for sub-section (2) (w.r.e.f. 20-9-1991).

Section 12. APPLICATION OF THE PROVISIONS OF ACT NO. 52 OF 1962 TO CENTRAL EXCISE DUTIES.

The Central Government may, by notification in the Official Gazette, 79 declare thatany of the provisions of the ¹Customs Act, 1962 (52 of 1962), relating to the levy of and exemption from customs duties, drawback of duty, warehousing, offences and penalties, confiscation, and procedure relating to offences and appeals shall, with such modifications and alterations as it may consider necessary or desirable to adapt them to the circumstances, be applicable in regard to like matters in respect of the duties imposed by section 3.

—————

1. Subs. by Act 33 of 1996, sec. 78, for “Sea Customs Act, 1878 (8 of 1878)” (w.e.f. 28-9-1996).

Section 12 A. PRICE OF GOODS TO INDICATE THE AMOUNT OF DUTY PAID THEREON.

^* PRICE OF GOODS TO INDICATE THE AMOUNT OF DUTY PAID THEREON.

Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold.

—————

* Chapter IIA (containing sections 12A to 12D) ins. by Act 40 of 1991, sec. 6 (w.e.f. 20-9-1991).

Section 12 B. PRESUMPTION THAT THE INCIDENCE OF DUTY HAS BEEN PASSED ON TO THE BUYER.

Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods.

—————

* Chapter IIA (containing sections 12A to 12D) ins. by Act 40 of 1991, sec. 6 (w.e.f. 20-9-1991).

Section 12 C. CONSUMER WELFARE FUND.

^*12C. Consumer Welfare Fund.—(1) There shall be established by the Central Government a fund, to be called the Consumer Welfare Fund.

(2) There shall be credited to the Fund, in such manner as may be prescribed,—

(a) the amount of duty of excise referred to in sub-section (2) of section 11B or sub-section (2) of section 11C or sub-section (2) of section 11D;

(b) the amount of duty of customs referred to in sub-section (2) of
section 27 or sub-section (2) of section 28A, or sub-section (2) of section 28B of the Customs Act, 1962 (52 of 1962);

(c) any income from investment of the amount credited to the Fund and any other monies received by the Central Government for the purposes of this Fund.

¹[(d) the surplus amount referred to in sub-section (6) of section 73A of the Finance Act, 1994.]

—————

* Chapter IIA (containing sections 12A to 12D) ins. by Act 40 of 1991, sec. 6 (w.e.f. 20-9-1991).

1. Ins. by Act 21 of 2006, sec. 64 (w.e.f. 18-4-2006).

Section 12 D. UTILISATION OF THE FUND.

^*UTILISATION OF THE FUND.

(1) Any money credited to the Fund shall be utilised by the Central Government for the welfare of the consumers in accordance with such rules as that Government may make in this behalf.

(2) The Central Government shall maintain or, if it thinks fit, specify the authority which shall maintain, proper and separate account and other relevant records in relation to the Fund in such form as may be prescribed in consultation with the Comptroller and Auditor-General of India.

* Chapter IIA (containing sections 12A to 12D) ins. by Act 40 of 1991, sec. 6 (w.e.f. 20-9-1991).

Section 12 E. POWERS OF CENTRAL EXCISE OFFICERS.

¹[^2[12E]POWERS OF CENTRAL EXCISE OFFICERS.

(1) A Central Excise Officer may exercise the powers and discharge the duties conferred or imposed under this Act on any other Central Excise Officer who is subordinate to him.

(2) Notwithstanding anything contained in sub-section (1), the Commissioner of Central Excise (Appeals) shall not exercise the powers and discharge the duties conferred or imposed on a Central Excise Officer other than those specified in section 14 or Chapter VIA.

—————

1. Section 12A ins. by Act 79 of 1985, sec. 4 (w.e.f. 27-12-1985).

2. Section 12A renumbered as section 12E by Act 40 of 1991, sec. 7 (w.e.f. 20-9-1991).

Section 13. POWER TO ARREST.

¹[13. Power to arrest.—Any Central Excise Officer not below the rank of Inspector of Central Excise may, with the prior approval of the Commissioner of Central Excise, arrest any person whom he has reason to believe to be liable to punishment under this Act or the rules made thereunder.]

—————

1. Subs. by Act 32 of 2003, sec. 141, for section 13 (w.e.f. 14-5-2003).

Section 14. POWER TO SUMMON PERSONS TO GIVE EVIDENCE AND PRODUCE DOCUMENTS IN INQUIRIES UNDER THIS ACT.

(1) Any Central Excise Officer duly empowered by the Central Government in this behalf, shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making for any of the purposes of this Act. A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.

(2) All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required :

Provided that the exemptions under sections 132 and 133 of the Code of Civil Procedure, 1908 (5 of 1908) shall be applicable to requisitions for attendance under this section.

(3) Every such inquiry as aforesaid shall be deemed to be a “judicial proceeding” within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860).

Section 14 A. SPECIAL AUDIT IN CERTAIN CASES.

¹SPECIAL AUDIT IN CERTAIN CASES.

(1) If at any stage of enquiry, investigation or any other proceedings before him, any Central Excise Officer not below the rank of an Assistant Commissioner of Central Excise, having regard to the nature and complexity of the case and the interest of revenue, is of the opinion that the value has not been correctly declared or determined by a manufacturer or any person, he may, with the previous approval of the Chief Commissioner of Central Excise, direct such manufacturer or such person to get the accounts of his factory, office, depots, distributors or any other place, as may be specified by the said Central Excise Officer, audited by a cost accountant, nominated by the Chief Commissioner of Central Excise in this behalf.

(2) The cost accountant, so nominated shall, within the period specified by the Central Excise Officer, submit a report of such audit duly signed and certified by him to the said Central Excise Officer mentioning therein such other particulars as may be specified :

Provided that the Central Excise Officer may, on an application made to him in this behalf by the manufacturer or the person and for any material and sufficient reason, extend the said period by such further period or periods as he thinks fit; so, however, that the aggregate of the period originally fixed and the period or periods so extended shall not, in any case, exceed one hundred and eighty days from the date on which the direction under sub-section (1) is received by the manufacturer or the person.

(3) The provisions of sub-section (1) shall have effect notwithstanding that the accounts of the manufacturer or person aforesaid have been audited under any other law for the time being in force or otherwise.

(4) The expenses of, and incidental to, such audit (including the remuneration of the cost accountant) shall be determined by the Chief Commissioner of Central Excise (which determination shall be final) and paid by the manufacturer or person and in default of such payment, shall be recoverable from the manufacturer or the person in the manner provided in section 11 for the recovery of sums due to the Government.

²[***]

(5) The manufacturer or the person shall be given an opportunity of being heard in respect of any material gathered on the basis of audit under sub-section (1) and proposed to be utilised in any proceedings under this Act or rules made there under.

Explanation : For the purpose of this section, “cost accountant” shall have the meaning assigned to it in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959).

—————

1. Ins. by Act 22 of 1995, sec. 76 (w.e.f. 26-5-1995).

2. Sub-section (4) omitted by Act 10 of 2000, sec. 104 (w.e.f. 12-5-2000).

Section 14 AA. SPECIAL AUDIT IN CASES WHERE CREDIT OF DUTY AVAILED OR UTILISED IS NOT WITHIN THE NORMAL LIMITS, ETC.

¹SPECIAL AUDIT IN CASES WHERE CREDIT OF DUTY AVAILED OR UTILISED IS NOT WITHIN THE NORMAL LIMITS, ETC.

(1) If the Commissioner of Central Excise has reason to believe that the credit of duty availed of or utilised under the rules made under this Act by a manufacturer of any excisable goods -

(a) Is not within the normal limits having regard to the nature of the excisable goods produced or manufactured, the type of inputs used and other relevant factors, as he may deem appropriate;

(b) Has been availed of or utilised by reason of fraud, collusion or any willful mis-statement or suppression of facts,

He may direct such manufacturer to get the accounts of his factory, office, depot, distributor or any other place, as may be specified by him, audited by a cost accountant nominated by him.

(2) The cost accountant so nominated shall, within the period specified by the Commissioner of Central Excise, submit a report of such audit duly signed and certified by him to the said Commissioner mentioning therein such other particulars as may be specified.

(3) The provisions of sub-section (1) shall have effect notwithstanding that the accounts of the said manufacturer aforesaid have been audited under any other law for the time being in force or otherwise.

(4) The expenses of, and incidental to, such audit (including the remuneration of the cost accountant) shall be determined by the Commissioner of Central Excise (which determination shall be final) and paid by the manufacturer and in default of such payment shall be recoverable from the manufacturer in the manner provided in section 11 for the recovery of sums due to the Government.

²[***]

(5) The manufacturer shall be given an opportunity of being heard in respect of any material gathered on the basis of the audit under sub-section (1) and proposed to be utilised in any proceeding under this Act or rules made there under.

Explanation : For the purpose of this section, “cost accountant” shall have the meaning assigned to it in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959).

—————

1. Ins. by Act 26 of 1997, sec. 83 (w.e.f. 14-5-1997).

2. Sub-section (4) omitted by Act 10 of 2000, sec. 105 (w.e.f. 12-5-2000).

Section 15. OFFICERS REQUIRED TO ASSIST CENTRAL EXCISE OFFICERS.

All officers of Police and Customs and all officers of Government engaged in the collection of land revenue, and all village officers are hereby empowered and required to assist the Central Excise Officers in the execution of this Act.

Section 16. OWNERS OR OCCUPIERS OF LAND TO REPORT MANUFACTURE OF CONTRABAND EXCISABLE GOODS.

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 137 (w.e.f. 11-5-2002).]

Section 17. PUNISHMENT FOR CONNIVANCE AT OFFENCES.

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 137 (w.e.f. 11-5-2002).]

Section 18. SEARCHES AND ARRESTS HOW TO BE MADE.

All searches made under this Act or any rules made there under and all arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898) ¹, 85 relating respectively to searches and arrests made under that Code.

—————

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

Section 19. DISPOSAL OF PERSONS ARRESTED.

Every person arrested under this Act shall be forwarded without delay to the nearest Central Excise Officer 86 empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer-in-charge of the nearest police station.

Section 20. PROCEDURE TO BE FOLLOWED BY OFFICER-IN-CHARGE OF POLICE STATION.

The officer-in-charge of a police station to whom any person is forwarded under section 19 shall either admit him to bail to appear before the Magistrate having jurisdiction, or in default of bail forward him in custody to such Magistrate.

Section 21. INQUIRY HOW TO BE MADE BY CENTRAL EXCISE OFFICERS AGAINST ARRESTED PERSONS FORWARDED TO THEM UNDER SECTION 19.

(1) When any person is forwarded under section 19 to a Central Excise Officer empowered 82a to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to enquire into the charge against him.

(2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898)¹, when investigating a cognizable case :

Provided that -

(a) If the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate;

(b) If it appears to the Central Excise Officer that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the Central Excise Officer may direct, to appear, if and when so required, before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior.

—————

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

Section 22. VEXATIOUS SEARCH, SEIZURE, ETC., BY CENTRAL EXCISE OFFICER.

Any Central Excise or other officer exercising powers under this Act or under the rules made there under who -

(a) without reasonable ground of suspicion searches or causes to be searched any house, boat or place;

(b) vexatiously and unnecessarily detains, searches or arrests any person;

(c) vexatiously and unnecessarily seizes the movable property of any

person, on pretence of seizing or searching for any article liable to confiscation under this Act;

(d) commits, as such officer, any other act to the injury of any person, without having reason to believe that such act is required for the execution of his duty;

shall, for every such offence, be punishable with fine which may extend to two thousand rupees.

Any person willfully and maliciously giving false information and so causing an arrest or a search to be made under this Act shall be punishable with fine which may extend to two thousand rupees or with imprisonment for a term which may extend to two years or with both.

Section 23. FAILURE OF CENTRAL EXCISE OFFICER IN DUTY.

Any Central Excise Officer who ceases or refuses to perform or withdraws himself from the duties of his office, unless he has obtained the express written permission of the ¹Commissioner of Central Excise, or has given to his superior officer two months’ notice in writing of his intention or has other lawful excuse, shall on conviction before a Magistrate be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to three months’ pay, or with both.

—————

1. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

Section 24. PENALTIES FOR CARRYING EXCISABLE GOODS IN CERTAIN VESSELS.

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]

Section 25. EXCEPTIONS.

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]

Section 26. POWER OF STOPPAGE, SEARCH AND ARREST.

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]

Section 27. PENALTIES FOR RESISTING OFFICER. 

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]

Section 28. CONFISCATION OF VESSEL AND CARGO. 

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]

Section 29. JURISDICTION. 

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f.11-5-2002.]

Section 30. POWER TO EXEMPT FROM OPERATION OF THIS CHAPTER.

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]

Section 31. DEFINITIONS. – IN THIS CHAPTER, UNLESS THE CONTEXT OTHERWISE REQUIRES, 

¹[31. Definitions.—In this Chapter, unless the context otherwise requires,—

(a) “assessee” means any person who is liable for payment of excise duty assessed under this Act or any other Act and includes any producer or manufacturer of excisable goods or a registered person under the rules made under this Act, of a private warehouse in which excisable goods are stored;

(b) “Bench” means a Bench of the Settlement Commission;

²[(c) “case” means any proceeding under this Act or any other Act for the levy, assessment and collection of excise duty, pending before an adjudicating authority on the date on which an application under sub-section (1) of section 32E is made:

Provided that when any proceeding is referred back in any appeal or revision, as the case may be, by any court, Appellate Tribunal or any other authority, to the adjudicating authority for a fresh adjudication or decision, as the case may be, then such proceeding shall not be deemed to be a proceeding pending within the meaning of this clause;]

(d) “Chairman” means the Chairman of the Settlement Commission;

(e) “Commissioner (Investigation)” means an officer of the customs or a Central Excise Officer appointed as such Commissioner to conduct inquiry or investigation for the purposes of this Chapter;

(f) “Member” means a Member of the Settlement Commission and includes the Chairman and the Vice-Chairman;

(g) “Settlement Commission” means the Customs and Central Excise Settlement Commission constituted under section 32; and

(h) “Vice-Chairman” means a Vice-Chairman of the Settlement Commission. ]

——– —-

1. Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f.1-8-1998). Earlier Chapter V (containing sections 31 to 32) was omitted by Act 33 of 1996, sec. 79 (w.e.f. 28-9-1996).

2.Subs. by Act 22 of 2007, sec. 119, for clause (c) (w.e.f. 1-6-2007). Clause (c), before substitution, stood as under:

‘(c) “case” means any proceeding under this Act or any other Act for the levy, assessment and collection of excise duty, or any proceeding by way of appeal or revision in connection with such levy, assessment or collection, which may be pending before a Central Excise Officer or Central Government on the date on which an application under sub-section (1) of section 32E is made:

Provided that where any appeal or application for revision has been preferred after the expiry of the period specified for the filing of such appeal or application for revision under this Act and which has not been admitted, such appeal or revision shall not be deemed to be a proceeding pending within the meaning of this clause;’.

Section 32. CUSTOMS AND CENTRAL EXCISE SETTLEMENT COMMISSION. 

(1) The Central Government shall, by notification in the Official Gazette, constitute a Commission to be called the Customs and Central Excise Settlement Commission for the settlement of cases under this Chapter and Chapter XIVA of the Customs Act, 1962 (52 of 1962).

(2) The Settlement Commission shall consist of a Chairman and as many Vice-Chairmen and other Members as the Central Government thinks fit and shall function within the Department of the Central Government dealing with Customs and Central Excise matters.

(3) The Chairman, Vice-Chairman and other Members of the Settlement

Commission shall be appointed by the Central Government from amongst persons of integrity and outstanding ability, having special knowledge of, and experience in, administration of customs and central excise laws :

Provided that, where a member of the Board is appointed as the Chairman, Vice-Chairman or as a Member of the Settlement Commission, he shall cease to be a member of the said Board.

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

Section 32 A. JURISDICTION AND POWERS OF SETTLEMENT COMMISSION. 

¹JURISDICTION AND POWERS OF SETTLEMENT COMMISSION.

(1) Subject to the other provisions of this Chapter, the jurisdiction, powers and authority of the Settlement Commission may be exercised by Benches thereof.

(2) Subject to the other provisions of this section, a Bench shall be presided over by the Chairman or a Vice-Chairman and shall consist of two other Members.

(3) The Bench for which the Chairman is the presiding officer shall be the principal Bench and other Benches shall be known as additional Benches.

(4) Notwithstanding anything contained in sub-section (1) and sub-section

(2), the Chairman may authorise the Vice-Chairman or other Member appointed to one Bench to discharge also the functions of the Vice-Chairman or, as the case may be, other Member of another Bench.

(5) The principal Bench shall sit at Delhi and the Central Government shall, by notification in the Official Gazette, establish additional Benches at such places as it considers necessary.

(6) Notwithstanding anything contained in the foregoing provisions of this section, and subject to any rules that may be made in this behalf, when one of the persons constituting a Bench (whether such person be the presiding officer. or other Member of the Bench) is unable to discharge his functions owing to absence, illness or any other cause or in the event of the occurrence of any vacancy either in the office of the presiding officer or in the office of one or the other Members of the Bench, the remaining Members may function as the Bench and if the presiding officer of the Bench is not one of the remaining Members, the senior among the remaining Members shall act as the presiding officer of the Bench :

²Provided that if at any stage of the hearing of any such case or matter, it appears to the presiding officer that the case or matter is of such a nature that it ought to be heard of by a Bench consisting of three Members, the case or matter may be referred by the presiding officer of such Bench to the Chairman for transfer to such Bench as the Chairman may deem fit.

(7) Notwithstanding anything contained in the foregoing provisions of this section, the Chairman may, for the disposal of any particular case, constitute a special Bench consisting of more than three Members.

(8) Subject to the other provisions of this Chapter, the special Bench shall sit at a place to be fixed by the Chairman.

——– —-

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998). Earlier Chapter V (containing sections 31 to 32) was omitted by Act 33 of 1996, sec. 79 (w.e.f. 28-9-1996).

2.Ins. by Act 22 of 2007, sec. 120 (w.e.f. 11-5-2007).

Section 32 B. VICE-CHAIRMAN TO ACT AS CHAIRMAN OR TO DISCHARGE HIS FUNCTIONS IN CERTAIN CIRCUMSTANCES. 

(1) In the event of the occurrence of any vacancy in the office of the Chairman by reason of his death, resignation or otherwise, the Vice-Chairman or, as the case may be, such one of the Vice-Chairmen as the Central Government may, by notification in the Official Gazette, authorise in this behalf, shall act as the Chairman until the date on which a new Chairman, appointed in accordance with the provisions of this Chapter to fill such vacancy, enters upon his office.

(2) When the Chairman is unable to discharge his functions’ owing to absence, illness or any other cause, the Vice-Chairman or, as the case may be, such one of the Vice-Chairmen as the Central Government may, by notification in the Official Gazette, authorise in this behalf, shall discharge the functions of the Chairman until the date on which the Chairman resumes his duties.

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

Section 32 C. POWER OF CHAIRMAN TO TRANSFER CASES FROM ONE BENCH TO ANOTHER. 

On the application of the assessee or the Chief Commissioner or Commissioner of Central Excise and after giving notice to them, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal, to another Bench.

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

Section 32 D. DECISION TO BE BY MAJORITY. 

^*32D. Decision to be by majority.—If the Members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the Chairman 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 Settlement Commission and such point or points shall be decided according to the opinion of the majority of the Members of the Settlement Commission who have heard the case, including those who first heard it.

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

Section 32 E. APPLICATION FOR SETTLEMENT OF CASES. 

¹[32E. Application for settlement of cases.—²[(1) An assessee may, in respect of a case relating to him, make an application, before adjudication, to the Settlement Commission to have the case settled, in such form and in such manner as may be prescribed and containing a full and true disclosure of his duty liability which has not been disclosed before the Central Excise Officer having jurisdiction, the manner in which such liability has been derived, the additional amount of excise duty accepted to be payable by him and such other particulars as may be prescribed including the particulars of such excisable goods in respect of which he admits short levy on account of misclassification, under-valuation, inapplicability of exemption notification or CENVAT credit but excluding the goods in respect of which no proper record has been maintained by the assessee in his daily stock register and any such application shall be disposed of in the manner hereinafter provided:

Provided that no such application shall be made unless,— (a) the applicant has filed returns showing production, clearance and central excise duty paid in the prescribed manner;

(b) a show cause notice for recovery of duty issued by the Central Excise Officer has been received by the applicant;

(c) the additional amount of duty accepted by the applicant in his application exceeds three lakh rupees; and

(d) the applicant has paid the additional amount of excise duty accepted by him along with interest due under section 11AB:

Provided further that no application shall be entertained by the Settlement Commission under this sub-section in cases which are pending with the Appellate Tribunal or any Court:

Provided also that no application under this sub-section shall be made for the interpretation of the classification of excisable goods under the Central Excise Tariff Act, 1985 (5 of 1986).

(1A) Notwithstanding anything contained in sub-section (1), where an application was made under sub-section (1), before the 1st day of June, 2007 but an order under sub-section (1) of section 32F has not been made before the said date or payment of amount so ordered by the Settlement Commission under sub-section (1) of section 32F has not been made, the applicant shall within a period of thirty days from the 1st day of June, 2007, pay the accepted duty liability failing which his application shall be liable to be rejected.]

(2) Where any excisable goods, books of account, other documents have
been seized under the provisions of this Act or rules made thereunder,
the assessee shall not be entitled to make an application under sub-section (1), before the expiry of one hundred and eighty days from the date of the seizure.

(3) Every application made under sub-section (1) shall be accompanied by such fees as may be prescribed.

(4) An application made under sub-section (1) shall not be allowed to be withdrawn by the applicant.]

——– —-

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998). Earlier Chapter V (containing ections 31 to 32) was omitted by Act 33 of 1996, sec. 79 (w.e.f. 28-9-1996).

2. Subs. by Act 22 of 2007, sec. 121, for sub-section (1) (w.e.f. 1-6-2007). Earlier sub-section (1) was amended by Act 10 of 2000, sec. 106 (w.e.f. 12-5-2000). Sub-section (1), before substitution by Act 22 of 2007, stood as under:

“(1) An assessee may, at any stage of a case relating to him make an application in such form and in such manner as may be prescribed, and containing a full and true disclosure of his duty or liability which has not been disclosed before the Central Excise Officer having jurisdiction, the manner in which such liability has been derived, the additional amount of excise duty accepted to be payable by him and such other particulars as may be prescribed including the particulars of such excisable goods in respect of which he admits short levy on account of misclassification or otherwise of such excisable goods, to the Settlement Commission to have the case settled and any such application shall be disposed of in the manner hereinafter provided:

Provided that no such application shall be made unless,—

(a) the applicant has filed returns showing production, clearance and central excise duty paid in the prescribed manner;

(b) a show cause notice for recovery of duty issued by the Central Excise Officer has been received by the applicant; and

(c) the additional amount of duty accepted by the applicant in this application exceeds two lakh rupees:

Provided further that no application shall be entertained by the Settlement Commission under this sub-section in cases which are pending with the Appellate Tribunal or any court:

Provided also that no application under this sub-section shall be made for the interpretation of the classification of excisable goods under the Central Excise Tariff Act, 1985 (5 of 1986).”

Section 32 F. PROCEDURE ON RECEIPT OF AN APPLICATION UNDER SECTION 32E. 

¹[²[32F. Procedure on receipt of an application under section 32E.—(1) On receipt of an application under sub-section (1) of section 32E, the Settlement Commission shall, within seven days from the date of receipt of the application, issue a notice to the applicant to explain in writing as to why the application made by him should be allowed to be proceeded with, and after taking into consideration the explanation provided by the applicant, the Settlement Commission, shall, within a period of fourteen days from the date of the notice, by an order, allow the application to be proceeded with, or reject the application as the case may be, and the proceedings before the Settlement Commission shall abate on the date of rejection:

Provided that where no notice has been issued or no order has been passed within the aforesaid period by the Settlement Commission, the application shall be deemed to have been allowed to be proceeded with.

(2) A copy of every order under sub-section (1), shall be sent to the applicant and to the Commissioner of Central Excise having jurisdiction.

(3) Where an application is allowed or deemed to have been allowed to be proceeded with under sub-section (1), the Settlement Commission shall, within seven days from the date of order under sub-section (1), call for a report along with the relevant records from the Commissioner of Central Excise having jurisdiction and the Commissioner shall furnish the report within a period of thirty days of the receipt of communication from the Settlement Commission:

Provided that where the Commissioner does not furnish the report within the aforesaid period of thirty days, the Settlement Commission shall proceed further in the matter without the report of the Commissioner.

(4) Where a report of the Commissioner called for under sub-section (3) has been furnished within the period specified in that sub-section, the Settlement Commission may, after examination of such report, if it is of the opinion that any further enquiry or investigation in the matter is necessary direct, for reasons to be recorded in writing, the Commissioner (Investigation) within fifteen days of the receipt of the report, to make or cause to be made such further enquiry or investigation and furnish a report within a period of ninety days of the receipt of the communication from the Settlement Commission, on the matters covered by the application and any other matter relating to the case:

Provided that where the Commissioner (Investigation) does not furnish the report within the aforesaid period, the Settlement Commission shall proceed to pass an order under sub-section (5) without such report.

(5) After examination of the records and the report of the Commissioner of Central Excise received under sub-section (3), and the report, if any, of the Commissioner (Investigation) of the Settlement Commission under sub-section (4), and after giving an opportunity to the applicant and to the Commissioner of Central Excise having jurisdiction to be heard, either in person or through a representative duly authorised in this behalf, and after examining such further evidence as may be placed before it or obtained by it, the Settlement Commission may, in accordance with the provisions of this Act, pass such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of the Commissioner of Central Excise and Commissioner (Investigation) under sub-section (3) or sub-section (4).

(6) An order under sub-section (5) shall not be passed in respect of an application filed on or before the 31st day of May, 2007, later than the 29th day of February, 2008 and in respect of an application made on or after the 1st day of June, 2007, after nine months from the last day of the month in which the application was made, failing which the settlement proceedings shall abate, and the adjudicating authority before whom the proceeding at the time of making the application was pending, shall dispose of the case in accordance with the provisions of this Act as if no application under section 32E had been made.

(7) Subject to the provisions of section 32A, the materials brought on record before the Settlement Commission shall be considered by the Members of the concerned Bench before passing any order under sub-section (5) and, in relation to the passing of such order, the provisions of section 32D shall apply.

(8) The order passed under sub-section (5) shall provide for the terms of settlement including any demand by way of duty, penalty or interest, the manner in which any sums due under the settlement shall be paid and all other matters to make the settlement effective and in case of rejection contain the reasons therefor and it shall also provide that the settlement shall be void if it is subsequently found by the Settlement Commission that it has been obtained by fraud, or misrepresentation of facts:

Provided that the amount of settlement ordered by the Settlement Commission shall not be less than the duty liability admitted by the applicant under section 32E.

(9) Where any duty, interest, fine and penalty payable in pursuance of an order under sub-section (5), is not paid by the assessee within thirty days of receipt of a copy of the order by him, the amount which remains unpaid, shall be recovered along with interest due thereon, as the sums due to the Central Government by the Central Excise Officer having jurisdiction over the assessee in accordance with the provisions of section 11.

(10) Where a settlement becomes void as provided under sub-section (8), the proceedings with respect to the matters covered by the settlement shall be deemed to have been revived from the stage at which the application was allowed to be proceeded with by the Settlement Commission and the Central Excise Officer having jurisdiction may, notwithstanding anything contained in any other provision of this Act, complete such proceedings at any time before the expiry of two years from the date of the receipt of communication that the settlement became void.]]

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

2. Subs. by Act 22 of 2007, sec. 122, for section 32F (w.e.f. 1-6-2007). Section 32F, before substitution, stood as under:

“32F. Procedure on receipt of an application under section 32E.—(1) On receipt of an application under sub-section (1) of section 32E, the Settlement Commission shall call for a report from the Commissioner of Central Excise having jurisdiction and on the basis of the materials contained in such report and having regard to the nature and circumstances of the case or the complexity of the investigation involved therein, the Settlement Commission may, by order, allow the application to be proceeded with or reject the application:

Provided that an application shall not be rejected under this sub-section, unless an opportunity has been given to the applicant of being heard:

Provided further that the Commissioner of Central Excise shall furnish such report within a period of one month of the receipt of the communication from the Settlement Commission, failing which it shall be presumed that the Commissioner of Central Excise has no objection to such application; but he may raise objections at the time of hearing fixed by the Settlement Commission for admission of the application and the date of such hearing shall be communicated by the Settlement Commission to the applicant and the Commissioner of Central Excise within a period not exceeding two months from the date of receipt of such application, unless the presiding officer of the Bench extends the time, recording the reasons in writing.

(2) A copy of every order under sub-section (1) shall be sent to the applicant and to the Commissioner of Central Excise having jurisdiction.

(3) Subject to the provisions of sub-section (4), the applicant shall within thirty days of the receipt of a copy of the order under sub-section (1) allowing the application to be proceeded with, pay the amount of additional duty admitted by him as payable and shall furnish proof of such payment to the Settlement Commission.

(4) If the Settlement Commission is satisfied, on an application made in this behalf by the assessee that he is unable for good and sufficient reasons to pay the amount referred to in sub-section (3), within the time specified in that sub-section, it may extend the time for payment of the amount which remains unpaid or allow payment thereof by instalments, if the assessee furnishes adequate security for the payment thereof.

(5) Where the additional amount of duty referred to in sub-section (3) is not paid by the assessee within the time specified or extended period, as the case may be, the Settlement Commission may direct that the amount which remains unpaid, together with simple interest at the rate of eighteen per cent. per annum or at the rate notified by the Central Board of Excise and Customs from time to time on the amount remaining unpaid, be recovered, as the sum due to Central Government by the Central Excise Officer having jurisdiction over the assessee in accordance with the provisions of section 11.

(6) Where an application is allowed to be proceeded with under sub-section (1), the Settlement Commission may call for the relevant records from the Commissioner of Central Excise having jurisdiction and after examination of such records, if the Settlement Commission is of the opinion that any further enquiry or investigation in the matter is necessary, it may direct the Commissioner (Investigation) to make or cause to be made such further enquiry or investigation and furnish a report on the matters covered by the application and any other matter relating to the case.

(7) After examination of the records and the report of the Commissioner of Central Excise received under sub-section (1), and the report, if any, of the Commissioner (Investigation) of the Settlement Commission under sub-section (6), and after giving an opportunity to the applicant and to the Commissioner of Central Excise having jurisdiction to be heard, either in person or through a representative duly authorised in this behalf, and after examining such further evidence as may be placed before it or obtained by it, the Settlement Commission may, in accordance with the provisions of this Act, pass such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of the Commissioner of Central Excise and Commissioner (Investigation) under sub-section (1) or sub-section (6).

(8) Subject to the provisions of section 32A, the materials brought on record before the Settlement Commission shall be considered by the Members of the Bench concerned before passing any order under sub-section (7) and, in relation to the passing of such order, the provisions of section 32D shall apply.

(9) Every order passed under sub-section (7) shall provide for the terms of settlement including any demand by way of duty, penalty or interest, the manner in which any sums due under the settlement shall be paid and all other matters to make the settlement effective and shall also provide that the settlement shall be void if it is subsequently found by the Settlement Commission that it has been obtained by fraud, or misrepresentation of facts.

(10) Where any duty payable in pursuance of an order under sub-section (7) is not paid by the assessee within thirty days of the receipt of a copy of the order by him, then, whether or not the Settlement Commission has extended the time for payment of such duty or has allowed payment thereof by instalments, the assessee shall be liable to pay simple interest at the rate of eighteen per cent. per annum or at such other rate as notified by the Central Board of Excise and Customs on the amount remaining unpaid from the date of expiry of the period of thirty days aforesaid.

(11) Where a settlement becomes void as provided under sub-section (9) the proceedings with respect to the matters covered by the settlement shall be deemed to have been revived from the stage at which the application was allowed to be proceeded with by the Settlement Commission and the Central Excise Officer having jurisdiction may, notwithstanding anything contained in any other provision of this Act, complete such proceedings at any time before the expiry of two years from the date of the receipt of communication that the settlement became void.”

Section 32G. POWER OF SETTLEMENT COMMISSION TO ORDER PROVISIONAL ATTACHMENT TO PROTECT REVENUE. 

(1) Where, during the pendency of any proceeding before it, the Settlement Commission is of the opinion that for the purpose of protecting the interests of revenue it is necessary so to do, it may, by order, attach provisionally any property belonging to the applicant in the manner as may be prescribed.

(2) Every provisional attachment made by the Settlement Commission under sub-section (1) shall cease to have effect from the date, the sums due to the Central Government for which such attachment is made are discharged by the applicant and evidence to that effect is submitted to the Settlement Commission.

————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

Section 32 H. POWER OF SETTLEMENT COMMISSION TO REOPEN COMPLETED PROCEEDINGS. 

¹[32H. Power of Settlement Commission to reopen completed proceedings.—If Settlement Commission is of the opinion (the reasons for such opinion to be recorded by it in writing) that, for the proper disposal of the case pending before it, it is necessary or expedient to reopen any proceeding connected with the case but which has been completed under this Act before application for settlement under section 32E was made, it may, with the concurrence of the applicant, reopen such proceeding and pass such order thereon as it thinks fit, as if the case in relation to which the application for settlement had been made by the applicant under that section covered such proceeding also:

Provided that no proceeding shall be reopened by the Settlement Commission under this section after the expiry of five years from the date of application:

²[Provided further that no proceeding shall be reopened by the Settlement Commission under this section in a case where an application under section 32E is made on or after the 1st day of June, 2007.]]

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

2.Ins. by Act 22 of 2007, sec. 123 (w.e.f. 1-6-2007).

Section 32-I. POWERS AND PROCEDURE OF SETTLEMENT COMMISSIONS. 

¹[32-I. Powers and procedure of Settlement Commissions.—(1) In addition to the powers conferred on the Settlement Commission under this Chapter, it shall have all the powers which are vested in a Central Excise Officer under this Act or the rules made thereunder.

(2) Where an application made under section 32E has been allowed to be proceeded with under section 32F, the Settlement Commission shall, until an order is passed under sub-section ²[(5)] of section 32F, have, subject to the provisions of sub-section ³[(4)] of that section, exclusive jurisdiction to exercise the powers and perform the functions of any Central Excise Officer, under this Act in relation to the case.

(3) In the absence of any express direction by the Settlement Commission to the contrary, nothing in this Chapter shall affect the operation of the provisions of this Act in so far as they relate to any matters other than those before the Settlement Commission.

(4) The Settlement Commission shall, subject to the provisions of this Chapter, have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers, or of the discharge of its functions, including the places at which the Benches shall hold their sittings.]

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

2. Subs. by Act 22 of 2007, sec. 124, for “(7)” (w.e.f. 1-6-2007).

3. Subs. by Act 22 of 2007, sec. 124, for “(6)” (w.e.f. 1-6-2007).

Section 32 J. INSPECTION, ETC., OF REPORTS. 

No person shall be entitled to inspect, or obtain copies of, any reports made by any Central Excise Officer to the Settlement Commission; but the Settlement Commission may, in its discretion furnish copies thereof to any such person on an application made to it in this behalf and on payment of the prescribed fee :

Provided that, for the purpose of enabling any person whose case is under consideration to rebut any evidence brought on record against him in any such report, the Settlement Commission shall, on an application made in this behalf, and on payment of the prescribed fee by such person, furnish him with a certified copy of any such report or part thereof relevant for the purpose.

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

Section 32 K. POWER OF SETTLEMENT COMMISSION TO GRANT IMMUNITY FROM PROSECUTION AND PENALTY.

¹[32K. Power of Settlement Commission to grant immunity from prosecution and penalty.—(1) The Settlement Commission may, if it is satisfied that any person who made the application for settlement under section 32E has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure of his duty liability, grant to such person, subject to such conditions as it may think fit to impose, immunity from prosecution for any offence under this Act ²[and also either wholly or in part from the imposition of any penalty and fine] under this Act, with respect to the case covered by the settlement:

Provided that no such immunity shall be granted by the Settlement Commission in cases where the proceedings for the prosecution for any such offence have been instituted before the date of receipt of the application under section 32E.

³[Explanation.—For the removal of doubts, it is hereby declared that applications filed before the Settlement Commission on or before the 31st day of May, 2007 shall be disposed of as if the amendment in this section had not come into force.]

(2) An immunity granted to a person under sub-section (1) shall stand withdrawn if such person fails to pay any sum specified in the order of the settlement passed under ⁴[sub-section (5) of section 32F within the time specified in such order] or fails to comply with any other condition subject to which the immunity has granted and thereupon the provisions of this Act shall apply as if such immunity has not been granted.

(3) An immunity granted to a person under sub-section (1) may, at any time, be withdrawn by the Settlement Commission, if it is satisfied that such person had, in the course of the settlement proceedings, concealed any particular material to the settlement or had given false evidence, and thereupon such person may be tried for the offence with respect to which the immunity was granted or for any other offence of which he appears to have been guilty in connection with the settlement and shall also become liable to the imposition of any penalty under this Act to which such person would have been liable, had no such immunity been granted.]

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

2. Subs. by Act 22 of 2007, sec. 125(i)(a), for “or under the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and also either wholly or in part from the imposition of any penalty, fine and interest” (w.e.f. 1-6-2007).

3. Ins. by Act 22 of 2007, sec. 125(i)(b) (w.e.f. 1-6-2007).

4.Subs. by Act 22 of 2007, sec. 125(ii), for “sub-section (7) of section 32F within the time specified in such order or within such further time as may be allowed by the Settlement Commission” (w.e.f. 1-6-2007).

Section 32 L. POWER OF SETTLEMENT COMMISSION TO SEND A CASE BACK TO THE CENTRAL EXCISE OFFICER. 

^*32L. Power of Settlement Commission to send a case back to the Central Excise Officer.—(1) The Settlement Commission may, if it is of opinion that any person who made an application for settlement under section 32E has not co-operated with the Settlement Commission in the proceedings before it, send the case back to the Central Excise Officer having jurisdiction who shall thereupon dispose of the case in accordance with the provisions of this Act as if no application under section 32E had been made.

(2) For purpose of sub-section (1), the Central Excise Officer shall be entitled to use all the materials and other information produced by the assessee before the Settlement Commission or the result of the inquiry held or evidence recorded by the Settlement Commission in the course of the proceedings before it as if such materials, information, inquiry and evidence had been produced before such Central Excise Officer or held or recorded by him in the course of the proceedings before him.

(3) For the purposes of the time limit under section 11A and for the purposes of interest under section 11BB, in a case referred to in sub-section (1), the period commencing on and from the date of the application to the Settlement Commission under section 32E and ending with the date of receipt by the Central Excise Officer of the order of the Settlement Commission sending the case back to the Central Excise Officer shall be excluded.

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

Section 32 M. ORDER OF SETTLEMENT TO BE CONCLUSIVE. 

¹[32M. Order of settlement to be conclusive.—Every order of settlement passed under sub-section ²[(5)] of section 32F shall be conclusive as to the matters stated therein and no matter covered by such order shall, save as otherwise provided in this Chapter, be reopened in any proceeding under this Act or under any other law for the time being in force.]

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

1.Subs. by Act 22 of 2007, sec. 126, for “(7)” (w.e.f. 1-6-2007).

Section 32 N. RECOVERY OF SUMS DUE UNDER ORDER OF SETTLEMENT. 

¹RECOVERY OF SUMS DUE UNDER ORDER OF SETTLEMENT. -.Any sum specified in an order of settlement passed under sub-section ²(5) of section 32F may, subject to such conditions if any, as may be specified therein, be recovered, and any penalty for default in making payment of such sum may be imposed and recovered as sums due to the Central Government in accordance with the provisions under section 11 by the Central Excise Officer having jurisdiction over the person who made the application for settlement under section 32E.

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

2.Subs. by Act 22 of 2007, sec. 127, for “(7)” (w.e.f. 1-6-2007).

Section 32-O. BAR ON SUBSEQUENT APPLICATION FOR SETTLEMENT IN CERTAIN CASES. 

²(i)³Where An order of settlement passed under sub-section (7) of section 32F provides for the imposition of a penalty on the person who made the application under section 32E for settlement, on the ground of concealment of particulars of his duty liability; or

(ii) After the passing of an order of settlement under the said sub-section (7) in relation to a case, such person is convicted of any offence under this Act in relation to that case; or

(iii) The case of such person is sent back to the Central Excise Officer having jurisdiction by the Settlement Commission under section 32L, then, he shall not be entitled to apply for settlement under section 32E in relation to any other matter.

⁴[(2) Where an assessee has made an application under sub-section (1) of section 32E, on or after the 1st day of June, 2007 and if such application has been allowed to be proceeded with under sub-section (1) of section 32F, such assessee shall not be entitled to apply for settlement under section 32E in relation to any other matter:

Provided that such assessee shall not be prevented from filing an application for settlement if the issue in the subsequent application is, but for the period of dispute and amount, identical to the issue in respect of which the earlier application is pending before the Settlement Commission.]]

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

2. Section 32-O renumbered as sub-section (1) thereof by Act 22 of 2007, sec. 128 (w.e.f. 11-5-2007).

3. Subs. by Act 22 of 2007, sec. 128(i), for “Where” (w.e.f. 11-5-2007).

4.Ins. by Act 22 of 2007, sec. 128(ii) (w.e.f. 1-6-2007).

Section 32 P. PROCEEDINGS BEFORE SETTLEMENT COMMISSION TO BE JUDICIAL PROCEEDINGS. 

Any proceedings under this Chapter before the Settlement Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860).

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

Section 33. POWER OF ADJUDICATION.

¹[Where under this Act or by rules made thereunder] anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged—

(a) without limit, by a ²[Commissioner of Central Excise];

(b) up to confiscation of goods not exceeding five hundred rupees in value and imposition of penalty not exceeding two hundred and fifty rupees, by an ³[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise]:

Provided that the ⁴[Central Board of Excise and Customs consti­tuted under the Central Boards of Revenue Act, 1963 (54 of 1963)] may, in the case of any officer performing the duties of an ³[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise], reduce the limits indicated in clause (b) of this section and may confer on any officer the powers indicated in clause (a) or (b) of this sec­tion.

—————

1. Subs. by Act 27 of 1999, sec. 125, for “Where by the rules made under this Act” (w.e.f. 11-5-1999).

2. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

3. Subs. by Act 27 of 1999, sec. 119, for “Assistant Commissioner of Central Excise” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Central Excise” were substituted for “Assistant Collector of Central Excise” by Act 22 of 1995, sec. 70 (w.e.f. 26-5-1995).

4. Subs. by Act 54 of 1963, sec. 5, for “Central Board of Revenue” (w.e.f. 1-1-1964).

Section 34. OPTION TO PAY FINE IN LIEU OF CONFISCATION.

Whenever confiscation is adjudged under this Act or the rules made there under, the officer adjudging it, shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit.

Section 34 A. CONFISCATION OR PENALTY NOT TO INTERFERE WITH OTHER PUNISHMENTS.

¹34A. CONFISCATION OR PENALTY NOT TO INTERFERE WITH OTHER PUNISHMENTS. No confiscation made or penalty imposed under the provisions of the Act or of any rule made there under shall prevent the infliction of any other punishment to which the person affected thereby is liable under the provisions of this Act or under any other law.

—————

1. Ins. by Act 36 of 1973, sec. 22 (w.e.f. 1-9-1973).

Section 35. APPEALS TO COMMISSIONER (APPEALS).

35. Appeals to ¹[Commissioner (Appeals)].—(1) Any person ag­grieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a ²[Commissioner of Central Excise] may appeal to the ³[Commissioner of Central Excise (Appeals)] [hereafter in this Chapter referred to as the ¹[Commissioner (Appeals)]] ⁴[within sixty days] from the date of the communica­tion to him of such decision or order:

⁵[Provided that the Commissioner (Appeals) may, if he is satis­fied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.]

⁶[(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing:

Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.]

(2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner.

—————

1. Subs. by Act 22 of 1995, sec. 70, for “Collector (Appeals)” (w.e.f. 26-5-1995).

2. Subs. by Act 22 of 1995, sec. 70 “Collector of Central Excise” (w.e.f. 26-5-1995)..

3. Subs by Act 22 of 1995, sec. 70, for “Collector of Central Excise (Appeal)” (w.e.f. 26-5-1995).

4. Subs. by Act 14 of 2001, sec. 127, for “within three months” (w.e.f. 11-5-2001).

5. Subs. by Act 14 of 2001, sec. 127, for the proviso (w.e.f. 11-5-2001).

6. Ins. by Act 23 of 2004, sec. 82 (w.e.f. 10-9-2004).

Section 35 A. PROCEDURE IN APPEAL.

(1) The ¹[Commissioner (Appeals)] shall give an opportunity to the appellant to be heard, if he so desires.

(2) The ¹[Commissioner (Appeals)] may, at the hearing of an appeal, allow an appellant to go into any ground of appeal not specified in the grounds of appeal, if the 1[Commissioner (Ap­peals)] is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.

(3) ²[The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order as he thinks just and proper confirming, modifying or annulling the decision or order appealed against:]

Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order:

Provided further that where the ¹[Commissioner (Appeals)] is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed unless the appellant is given notice within the time limit specified in section 11A to show cause against the proposed order.

(4) The order of the ¹[Commissioner (Appeals)] disposing of the appeal shall be in writing and shall state the points for deter­mination, the decision thereon and the reasons for the decision.

³[(4A) The Commissioner (Appeals) shall, where it is possible to do so, hear and decide every appeal within a period of six months from the date on which it is filed.]

(5) On the disposal of the appeal, the ¹[Commissioner (Appeals)] shall communicate the order passed by him to the appellant, the adjudicating authority ⁴[, the Chief Commissioner of Central Excise and the Commissioner of Central Excise].

—————

1. Subs. by Act 22 of 1995, sec. 70, for “Collector (Appeals)” (w.e.f. 26-5-1995).

2. Subs. by Act 14 of 2001, sec. 128, for certain words (w.e.f. 11-5-2001).

3. Ins. by Act 14 of 2001, sec. 128 (w.e.f. 11-5-2001).

4. Subs. by Act 18 of 2005, sec. 78, for “and of the Commissioner of Central Excise” (w.e.f. 13-5-2005).

Section 35 B. APPEALS TO THE APPELLATE TRIBUNAL

35B. Appeals to the Appellate Tribunal.—(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribu­nal against such order—

(a) a decision or order passed by the ¹[Commissioner of Central Excise] as an adjudicating authority;

(b) an order passed by the ²[Commissioner (Appeals)] under sec­tion 35A;

(c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the ³[Appellate Commissioner of Central Excise] under section 35, as it stood immediately before the appointed day;

(d) an order passed by the Board or the ⁴[Commissioner of Central Excise], either before or after the appointed day, under section 35A, as it stood immediately before that day:

⁵[Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,—

(a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse;

(b) a rebate of duty of excise on goods, exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or terri­tory outside India;

(c) goods exported outside India (except to Nepal or Bhutan) without payment of duty;

⁶[(d) credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998:]

Provided further that] the appellate Tribunal may, in its discre­tion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where—

(i) in any disputed case, other than a case where the determina­tion of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or

(ii) the amount of fine or penalty determined by such order,does not exceed ⁷[fifty thousand rupees].

⁸[(1A) Every appeal against any order of the nature referred to in the first proviso to sub-section (1), which is pending immedi­ately before the commencement of section 47 of the Finance Act, 1984 (21 of 1984), before the Appellate Tribunal and any matter arising out of, or connected with, such appeal and which is so pending shall stand transferred on such commencement to the Central Government, and the Central Government shall deal with such appeal or matter under section 35EE as if such appeal or matter were an application or a matter arising out of an applica­tion made to it under that section.]

⁹[((1B) (i) The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) may by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Act.

(ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be.]

¹⁰[(2) ¹¹[The Committee of Commissioners of Central Excise may, if it is] of opinion that an order passed by the ¹²[Appellate Commissioner of Central Excise] under section 35, as it stood immediately before the appointed day, or the ¹³[Commissioner (Appeals)] under section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal ¹⁴[on its behalf] to the Appellate Tribunal against such order.

(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the ¹⁵[Commissioner of Central Excise], or, as the case may be, the other party preferring the appeal.

(4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been pre­ferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).

(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.

¹⁶[(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, irrespective of the date of demand of duty and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a fee of,—

(a) where the amount of duty and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is five lakh rupees or less, one thousand rupees;

(b) where the amount of duty and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees;

(c) where the amount of duty and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees:

Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub-section (4).

(7) Every application made before the Appellate Tribunal,—

(a) in an appeal for grant of stay or for rectification of mistake or for any other purpose; or

(b) for restoration of an appeal or an application,

shall be accompanied by a fee of five hundred rupees:

Provided that no such fee shall be payable in the case of an application filed by or on behalf of the Commissioner of Central Excise under this sub-section.]

—————

1. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

2. Subs. by Act 22 of 1995, sec. 70, for “Collector (Appeals)” (w.e.f. 26-5-1995).

3. Subs. by Act 22 of 1995, sec. 70, for “Appellate Collector of Central Excise” (w.e.f. 26-5-1995).

4. Subs. by Act 18 of 2005, sec. 78, for “and of the Commissioner of Central Excise” (w.e.f. 13-5-2005).

5. Subs. by Act 21 of 1984, sec. 47, for “Provided that” (w.e.f. 11-5-1984).

6. Ins. by Act 21 of 1998, sec. 109 (w.e.f. 1-8-1998).

7. Subs. by Act 38 of 1993, sec. 45, for “ten thousand rupees” (w.e.f. 13-5-1993).

8. Ins. by Act 21 of 1984, sec. 47 (w.e.f. 11-5-1984).

9. Ins. by Act 18 of 2005, sec. 79 (w.e.f. 13-5-2005).

10. Sub-section (2) shall stand subs. by Act 62 of 1986, sec. 34 as follows:—

“(2) The Collector of Central Excise may, if he is of opinion that an order passed by—

(a) the Appellate Collector of Central Excise under section 35, as it stood immediately before the appointed day, or

(b) the Collector (Appeals) under section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the autho­rised officer) to appeal on his behalf to the Appellate Tribunal or, as the case may be, the Customs and Excise Revenues Appellate Tribunal established under section 3 of 62 of 1986 the Customs and Excise Revenues Appellate Tribunal Act, 1986, against such order”.

11. Subs. by Act 18 of 2005, sec. 79, for “The Commissioner of Central Excise may, if he is” (w.e.f. 13-5-2005).

12. Subs. by Act 22 of 1995, sec. 70, for “Appellate Collector of Central Excise” (w.e.f. 26-5-1995).

13. Subs. by Act 22 of 1995, sec. 70, for “Collector (Appeals)” (w.e.f. 26-5-1995).

14. Subs. by Act 18 of 2005, sec. 79, for “on his behalf” (w.e.f. 13-5-2005).

15. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

16. Subs. by Act 23 of 2004, sec. 83, for sub-section (6) (w.e.f. 10-9-2004). Sub-section (6), before substitution, stood as under:

“(6) An appeal to the Appellate Tribunal shall be in the pre­scribed form and shall be verified in the prescribed manner and shall, in the case of an appeal made on or after the Ist day of June, 1993, irrespective of the date of demand of duty or of levy of penalty in relation to which the appeal is made, be accompa­nied by a fee of,—

(a) where the amount of duty demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is one lakh rupees or less, two hundred rupees;

(b) where the amount of duty demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than one lakh rupees, one thousand rupees:

Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub-section (4).”.

Section 35 C. ORDERS OF APPELLATE TRIBUNAL. 

35C. Orders of Appellate Tribunal.—(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 annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.

¹(1A) The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing:

Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.]

(2) The Appellate Tribunal may, at any time within ²six months] from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the ³[Commissioner of Central Excise] or the other party to the appeal:

Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportu­nity of being heard.

⁴[(2A) The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed:

Provided that where an order of stay is made in any proceedings relating to an appeal filed under sub-section (1) of section 35B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order:

Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated.]

(3) The Appellate Tribunal shall send a copy of every order passed under this section to the ³[Commissioner of Central Ex­cise] and the other party to the appeal.

(4)⁵[Save as provided in the National Tax Tribunal Act, 2005], orders passed by the Appellate Tribunal on appeal shall be final.

Comments

The firm is a separate legal entity from its partners for the purpose of Central Excise Act, irrespective of the treatment of the firm and partners under general law. In view of this finding charging firm for under valuation and for short levy is unjus­tified in the absence of issue of show-cause notice to the firm; Hindustan Foam Industry v. Collector of Central Excise, 1990 (48) ELT 33 (Tri).

—————

1. Ins. by Act 23 of 2004, sec. 84 (w.e.f. 10-9-2004).

2. Subs. by Act 20 of 2002, sec. 140, for “four years” (w.e.f. 11-5-2002).

3. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

4. Ins. by Act 20 of 2002, sec. 140 (w.e.f. 11-5-2002).

5. Subs. by Act 49 of 2005, sec. 30 and Sch., Pt. VII-5, for “Save as provided in section 35G or section 35L” (w.e.f. 28-12-2005).

Section 35 D. PROCEDURE OF APPELLATE TRIBUNAL. 104 

35D. Procedure of Appellate Tribunal.—(1) The provisions of sub-sections (1), (2), (5) and (6) of section 129C of the Customs Act, 1962 (52 of 1962), shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the dis­charge of its functions under the Customs Act, 1962 (52 of 1962).

¹[***]

(3) The President or any other member of the Appellate Tribunal authorised in this behalf by the President may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member where—

(a) in any disputed case, other than a case where the determina­tion of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or(b) the amount of fine or penalty involved,does not exceed ²[³[⁴[ten lakh rupees]]].

—————

1. Sub-section (2) omitted by Act 22 of 1995, sec. 77 (w.e.f. 26-5-1995).

2. Subs. by Act 21 of 1984, sec. 48, for “ten thousand rupees” (w.e.f. 11-5-1984).

3. Subs. by Act 38 of 1993, sec. 45, for “fifty thousand rupees” (w.e.f. 13-5-1993).

4. Subs. by Act 33 of 1996, sec. 80, for “one lakh rupees” (w.e.f. 28-9-1996).

Section 35 E. POWERS OF BOARD OR COMMISSIONER OF CENTRAL EXCISE TO PASS CERTAIN ORDERS. – 108

35E. Powers of Board or ¹[Commissioner of Central Excise] to pass certain orders.—(1) The Board may, of its own motion, call for and examine the record of any proceeding in which a ¹[Commission­er of Central Excise] as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such ²[Commissioner] ³[or any other commissioner] to apply to the Appellate Tribunal ⁴[or, as the case may be, the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986)] for the determination of such points arising out of the decision or order as may be specified by the ⁵[Committee of Chief Commissioners of Central Excise] in its order.

(2) The ¹[Commissioner of Central Excise] may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct ⁶[such authority or any Central Excise Officer subordinate to him] to apply to the ⁷[Commis­sioner (Appeals)] for the determination of such points arising out of the decision or order as may be specified by the ¹[Commis­sioner of Central Excise] in his order.

⁸[(3) The Committee of Chief Commissioners of Central Excise or the Commissioner of Central Excise, as the case may be, shall make order under sub-section (1) or sub-section (2) within a period of three months from the date of communication of the decision or order of the adjudicating authority.]

(4) Where in pursuance of an order under sub-section (1) or sub-section (2), the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal ⁴[or, as the case may be, the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986)] or the ⁷[Commissioner (Appeals)] within a period of 9[one month] from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicat­ing authority, such application shall be heard by the Appellate Tribunal 4[or, as the case may be, the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Cus­toms and Excise Revenues Appellate Tribunal Act, 1986] or the ⁷[Commissioner (Appeals)], as the case may be, as if such appli­cation were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 35B ⁴[or, as the case may be, the provisions of the Customs and Excise Revenues Appellate Tribunal Act, 1986] shall, so far as may be, apply to such application.

¹⁰[(5) The provisions of this section shall not apply to any deci­sion or order in which the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue.

Explanation.—For the purposes of this sub-section, the determi­nation of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question—

(a) relating to the rate of duty of excise for the time being in force, whether under the Central Excise Tariff Act, 1985 (5 of 1986), or under any other Central Act providing for the levy and collection of any duty of excise, in relation to any goods on or after the 28th day of February, 1986; or

(b) relating to the value of goods for the purposes of assessment of any duty of excise in cases where the assessment is made on or after the 28th day of February, 1986; or

(c) whether any goods are excisable goods or whether the rate of duty of excise on any goods is nil; or

(d) whether any goods fall under a particular heading or sub-heading of ¹¹the First Schedule and the Second Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986), or the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), or the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), or that any goods are or not covered by a particular notification or order issued by the Central Government or the Board, as the case may be, granting total or partial exemption from duty; or

(e) whether the value of any goods for the purposes of assess­ment of duty of excise shall be enhanced or reduced by the addi­tion or reduction of the amounts in respect of such matters as are specifically provided in this Act.]

———-

1. Subs. by Act 22 of 1995, sec. 70, for “Collector” (w.e.f. 26-5-1995)

2. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

3. Ins. by Act 14 of 2001, sec. 129 (w.e.f. 11-5-2001).

4. Ins. by Act 62 of 1986, sec. 34.

5. Subs. by Act 18 of 2005, sec. 80, for “Board” (w.e.f. 13-5-2005).

6. Ins. by Act 29 of 2006, sec. 37, for such authority” (w.e.f. 13-7-2006).

7. Subs. by Act 22 of 1995, sec. 70, for “Collector (Appeals)” (w.e.f. 26-5-1995).

8. Subs. by Act 22 of 2007, sec. 130(i), for sub-section (3) (w.e.f. 11-5-2007). Earlier sub-section (3) was substituted by Act 20 of 2002, sec. 141 (w.e.f. 11-5-2002) and was amended by Act 18 of 2005, sec. 80 (w.e.f. 13-5-2005). Sub-section (3), before substitution by Act 22 of 2007, stood as under:

“(3) The Committee of Chief Commissioners of Central Excise or Commissioner of Central Excise, as the case may be, shall, where it is possible to do so, make order under sub-section (1) or sub-section (2), within a period of six months, but not beyond a period of one year, from the date of the decision or order of the adjudicating authority.”.

9. Subs. by Act 22 of 2007, sec. 130(ii), for “three months” (w.e.f. 11-5-2007).

10.Ins. by Act 29 of 1988, sec. 11 (w.e.f. 16-8-1988).

11.Subs. by Act 27 of 1999, sec. 119, for “the Schedule” (w.e.f. 11-5-1999).

Section 35 EA. POWERS OF REVISION OF BOARD OR COMMISSIONER OF CENTRAL EXCISE IN CERTAIN CASES.

¹[35EA. Powers of revision of Board or ²[Commissioner of Central Excise] in certain cases.—(1) The Board may, of its own motion or on the applica­tion of any aggrieved person or otherwise, call for and examine the record of any proceeding in which a ²[Commissioner of Central Excise] has passed any decision or order [not being a decision or order passed under sub-section (2) of this section] of the nature referred to in sub-section (5) of section 35E for the purpose of satisfying itself as to correctness, legality or propriety of such decision or order and may pass such order thereon as it thinks fit.

(2) The ²[Commissioner of Central Excise] may, of his own motion or on the application of any aggrieved person or otherwise, call for and examine the record of any proceeding in which an adjudi­cating authority subordinate to him has passed any decision or order of the nature referred to in sub-section (5) of section 35E, for the purpose of satisfying himself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as he thinks fit.

(3) (a) No decision or order under this section shall be made so as to prejudicially affect any person unless such person is given a reasonable opportunity of making representation and if, he so desires, of being heard in his defence.

(b) Where the Board or, as the case may be, the ²[Commissioner of Central Excise] is of the opinion that any duty of excise has not been levied or has been short-levied or short-paid or erroneously refunded, no order requiring the affected person to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed under this section unless such person is given notice within the time limit specified in section 11A to show cause against the proposed order.

(4) No proceedings shall be initiated under sub-section (1) or sub-section (2) in respect of any decision or order after the expiry of a period of six months from the date of communication of such decision or order:

Provided that in respect of any decision or order passed before the commencement of the Customs and Central Excise Laws (Amend­ment) Act, 1987 (29 of 1988), the provisions of this sub-section shall have effect as if for the words “six months”, the words “one year” were substituted.

(5) Any person aggrieved by any decision or order passed under sub-section (1) or sub-section (2) may appeal to the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986), against such decision or order.]

—————

1. Ins. by Act 29 of 1988, sec. 12 (w.e.f. 16-8-1988).

2. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

Section 35 EE. REVISION BY CENTRAL GOVERNMENT. 

¹[35EE. Revision by Central Government.—(1) The Central Govern­ment may, on the application of any person aggrieved by any order passed under section 35A, where the order is of the nature re­ferred to in the first proviso to sub-section (1) of section 35B, annul or modify such order:

²[Provided that the Central Government may in its discretion, refuse to admit an application in respect of an order where the amount of duty or fine or penalty, determined by such order does not exceed five thousand rupees.]

Explanation.—For the purposes of this sub-section,“order passed under section 35A” includes an order passed under that section before the commencement of section 47 of the Finance Act, 1984 (21 of 1984) against which an appeal has not been preferred before such com­mencement and could have been, if the said section had not come into force, preferred after such commencement, to the Appellate Tribunal.

²[(1A) The Commissioner of Central Excise may, if he is of the opinion that an order passed by the Commissioner (Appeals) under section 35A is not legal or proper, direct the proper officer to make an application on his behalf to the Central Government for revision of such order.]

(2) An application under sub-section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made:

Provided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of three months, allow it to be presented within a further period of three months.

³[(3) An application under sub-section (1) shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall be accompanied by a fee of,—

(a) two hundred rupees, where the amount of duty and interest demanded, fine or penalty levied by any Central Excise Officer in the case to which application relates is one lakh rupees or less;

(b) one thousand rupees, where the amount of duty and interest demanded, fine or penalty levied by an Central Excise Officer in the case to which the application relates is more than one lakh rupees:

Provided that no such fee shall be payable in the case of an application referred to in sub-section (1A).]

(4) The Central Government may, of its own motion, annul or modify any order referred to in sub-section (1).

(5) No order enhancing any penalty or fine in lieu of confisca­tion or confiscating goods of greater value shall be passed under this section,—

(a) in any case in which an order passed under section 35A has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value, and

(b) in any other case, unless the person affected by the proposed order has been given notice to show cause against it within one year from the date of the order sought to be annulled or modi­fied.

(6) Where the Central Government is of opinion that any duty of excise has not been levied or has been short-levied, no order levying or enhancing the duty shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the time limit specified in sec­tion 11A.]

—————

1. Ins. by Act 21 of 1984, sec. 50 (w.e.f. 11-5-1984).

2. Ins. by Act 27 of 1999, sec. 126 (w.e.f. 11-5-1999).

3. Subs. by Act 27 of 1999, sec. 126, for sub-section (3) (w.e.f. 11-5-1999).

Section 35 F. DEPOSIT, PENDING APPEAL, OF DUTY DEMANDED OR PENALTY LEVIED.

Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authori­ties or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied:

Provided that where in any particular case, the ¹[Commissioner (Appeals)] or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the ¹[Commissioner (Appeals)] or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue:

²[Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filling.]

³[Explanation.—For the purposes of this section “duty demanded” shall include,—

(i) amount determined under section 11D;

(ii) amount of erroneous CENVAT credit taken;

(iii) amount payable under rule 57CC of Central Excise Rules, 1944;

(iv) amount payable under rule 6 of CENVAT Credit Rules, 2001 or CENVAT Credit Rules, 2002 or CENVAT Credit Rules, 2004;

(v) interest payable under the provisions of this Act or the rules made thereunder.]

———-

1. Subs. by Act 22 of 1995, sec. 70, for “Collector (Appeals)” (w.e.f. 26-5-1995).

2.Ins. by Act 14 of 2001, sec. 130 (w.e.f. 11-5-2001).

3. Ins. by Act 22 of 2007, sec. 131 (w.e.f. 11-5-2007)

Section 35 G. STATEMENT OF CASE TO HIGH COURT.

¹[35G. Appeal to High Court.—[Rep. by the National Tax Tribunal Act, 2005 (49 of 2005), sec. 30 and Sch., Pt. VII-6 (w.e.f. 28-12-2005).]]

—————

1. Section 35G, before repeal, stood as under:

“35G. Appeal to High Court.—(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.

(2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be—

(a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party;

(b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party;

(c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved.

(3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.

(5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.

(6) The High Court may determine any issue which—

(a) has not been determined by the Appellate Tribunal; or

(b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1).

(7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges.

(8) Where there is no such majority, the Judges shall state the point of law upon

which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the

opinion of the majority of the Judges who have heard the case including those who first heard it.

(9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.”.

Section 35 H. STATEMENT OF CASE TO SUPREME COURT IN CERTAIN CASES. – 111 .

¹[35H. Application to High Court.—[Rep. by the National Tax Tribunal Act, 2005 (49 of 2005), sec. 30 and Sch., Pt. VII-6 (w.e.f. 28-12-2005).]]

—————

1. Section 35H, before repeal, stood as under:

“35H. Application to High Court.—(1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 35C passed before the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal.

(2) The Commissioner of Central Excise or the other party applying to the High Court under sub-section (1) shall clearly state the question of law which he seeks to be referred to the High Court and shall also specify the paragraph in the order of the Appellate Tribunal relevant to the question sought to be referred.

(3) On receipt of notice that an application has been made under sub-section (1), the person against whom such application has been made, may, notwithstanding that he may not have filed such application, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the High Court as if it were an application presented within the time specified in sub-section (1).

(4) If, on an application made under sub-section (1), the High Court directs the Appellate Tribunal to refer the question of law raised in the application, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such direction, draw up a statement of the case and refer it to the High Court.”.

Section 35-I. POWER OF HIGH COURT OR SUPREME COURT TO REQUIRE STATEMENT TO BE AMENDED. 

¹[35-I. Power of High Court or Supreme Court to require statement to be amended.—

[Rep. by the National Tax Tribunal Act, 2005 (49 of 2005), sec. 30 and Sch., Pt. VII-6 (w.e.f. 28-12-2005).]]

—————

1. Section 35-I, before repeal, stood as under:

“35-I. Power of High Court or Supreme Court to require statement to be amended.—If the High Court or the Supreme Court is not satis­fied that the statements in a case referred to it are sufficient to enable it to determine the questions raised thereby, the Court may refer the case back to the Appellate Tribunal for the purpose of making such additions thereto or alterations therein as it may direct in that behalf.”.

Section 35 J. CASE BEFORE HIGH COURT TO BE HEARD BY NOT LESS THAN TWO JUDGES.

¹[35J. Case before High Court to be heard by not less than two Judges.—[Rep. by the National Tax Tribunal Act, 2005 (49 of 2005), sec. 30 and Sch., Pt. VII-6 (w.e.f. 28-12-2005).]]

—————

1. Section 35J, before repeal, stood as under:

“35J. Case before High Court to be heard by not less than two Judges.—(1) When any case has been referred to the High Court under section 35G or section 35H, it shall be heard by a Bench of not less than two Judges of the High Court and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges.

(2) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall then be heard upon that point only by one or more of the other Judges of the High Court, and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.”.

Section 35 K. DECISION OF HIGH COURT OR SUPREME COURT ON THE CASE STATED.

35K. Decision of High Court or Supreme Court on the case stated.—(1) The ¹[***] Supreme Court hearing any such case shall decide the questions of law raised therein and shall deliv­er its judgment thereon containing the grounds on which such decision is founded and a copy of the judgment shall be sent under the seal of the Court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are neces­sary to dispose of the case in conformity with such judgment.

²[(1A) Where the High Court delivers a judgment in an appeal filed before it under section 35G, effect shall be given to the order passed on the appeal by the concerned Central Excise Officer on the basis of a certified copy of the judgment.]

(2) The costs of any 3[reference to the ⁴[***] an appeal to ⁵[***] the Supreme Court, ⁵[***]] which shall not include the fee for making the reference shall be in the discretion of the Court.

—————

1. The words “High Court or the” omitted by Act 49 of 2005, sec. 30 and Sch., Pt. VII-7 (w.e.f. 28-12-2005).

2. Ins. by Act 32 of 2003, sec. 146 (w.e.f. 1-7-2003).

3. Subs. by Act 32 of 2003, sec. 146, for “reference to the High Court or the Supreme Court.” (w.e.f. 14-5-2003).

4. The words “the High Court or” omitted by Act 49 of 2005, sec. 30 and Sch., Pt. VII-7 (w.e.f. 28-12-2005).

5. The words “as the case may be,” omitted by Act 49 of 2005, sec. 30 and Sch., Pt. VII-7 (w.e.f. 28-12-2005).

Section 35 L. APPEAL TO THE SUPREME COURT 113

35L. Appeal to Supreme Court.—An appeal shall lie to the Supreme Court from—

¹[(a) any judgment of the High Court delivered—

(i) in an appeal made under section 35G; or

(ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003;

(iii) on a reference made under section 35H,

in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or]

(b) any order passed 2[before the establishment of the National Tax Tribunal] by the Appellate Tribunal relating, among other things, to the determination of any question having a rela­tion to the rate of duty of excise or to the value of goods for purposes of assessment.

—————

1. Subs. by Act 32 of 2003, sec. 147, for clause (a) (w.e.f. 14-5-2003).

2. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VII-8 (w.e.f. 28-12-2005).

Section 35 M. HEARING BEFORE SUPREME COURT.

(1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the Supreme Court shall, so far as may be, apply in the case of appeals under section 35L as they apply in the case of appeals from decrees of a High Court :

Provided that nothing in this sub-section shall be deemed to affect the provisions of sub-section (1) of section 35K or section 35N.

(2) The costs of the appeal shall be in the discretion of the Supreme Court.

(3) Where the judgment of the High Court is varied or reversed in the appeal, effect shall be given to the order of the Supreme Court in the manner provided in section 35K in the case of a judgment of the High Court.

Section 35 N. SUMS DUE TO BE PAID NOTWITHSTANDING REFERENCE, ETC.

Notwithstanding that a reference has been made to the High Court or the Supreme Court or an appeal has been preferred to the Supreme Court, sums due to the Government as a result of an order passed ¹under sub-section (1) of section 35C shall be payable in accordance with the order so passed.

—————

1. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VII-9 (w.e.f. 28-12-2005).

Section 35-O. EXCLUSION OF TIME TAKEN FOR COPY.

In computing the period of limitation prescribed for an appeal or application under this Chapter, the day on which the order complained of was served, and if the party preferring the appeal or making the application was not furnished with a copy of the order when the notice of the order was served upon him, the time requisite for obtaining a copy of such order shall be excluded.

Section 35 P. TRANSFER OF CERTAIN PENDING PROCEEDINGS AND TRANSITIONAL PROVISIONS.

(1) Every appeal which is pending immediately before the appointed day before the Board under section 35, as it stood immediately before that day, and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such appeal or matter from the stage at which it was on that day :

Provided that the appellant may demand that before proceeding further with that appeal or matter, he may be re-heard.

(2) Every proceeding which is pending immediately before the appointed day before the Central Government under section 36, as it stood immediately before that day, and any matter arising out of or connected with such proceeding and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such proceeding or matter from the stage at which it was on that day as if such proceeding or matter were an appeal filed before it :

Provided that if any such proceeding or matter relates to an order where -

(a) In any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or

(b) The amount of fine or penalty determined by such order, does not exceed ten thousand rupees, such proceeding or matter shall continue to be dealt with by the Central Government as if the said section 36 had not been substituted :

Provided further that the applicant or the other party may make a demand to the Appellate Tribunal that before proceeding further with that proceeding or matter, he may be re-heard.

(3) Every proceeding which is pending immediately before the appointed day before the Board or the ¹ Commissioner of Central Excise under section 35A, as it stood immediately before that day, and any matter arising out of or connected with such proceeding and which is so pending shall continue to be dealt with by the Board or the Commissioner of Central Excise as the case may be, as if the said section had not been substituted.

(4) Any person who immediately before the appointed day was authorised to appear in any appeal or proceeding transferred under sub-section (1) or sub-section (2) shall, notwithstanding anything contained in section 35Q, have the right to appear before the Appellate Tribunal in relation to such appeal or proceeding.

—————

1. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f 26-5-1995).

Section 35 Q. APPEARANCE BY AUTHORISED REPRESENTATIVE.

(1) Any person who is entitled or required to appear before a Central Excise Officer or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under this Act to appear personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an autho­rised representative.

(2) For the purposes of this section, “authorised representative” means a person authorised by the person referred to in sub-sec­tion (1) to appear on his behalf, being—

(a) his relative or regular employee; or

(b) any legal practitioner who is entitled to practise in any civil Court in India; or

(c) any person who has acquired such qualifications as the Cen­tral Government may prescribe for this purpose.

(3) Notwithstanding anything contained in this section, no person who was a member of the Indian Customs and Central Excise Serv­ice—Group A and has retired or resigned from such service after having served for not less than three years in any capacity in that service, shall be entitled to appear as an authorised repre­sentative in any proceedings before a Central Excise Officer for a period of two years from the date of his retirement or resigna­tion, as the case may be.

(4) No person,—

(a) who has been dismissed or removed from Government service; or

(b) who is convicted of an offence connected with any proceeding under this Act, the Customs Act, 1962 (52 of 1962) or the Gold (Control) Act, 1968 (45 of 1968); or

(c) who has become an insolvent,

shall be qualified to represent any person under sub-section (1), for all times in the case of a person referred to in clause (a), and for such time as the ¹[Commissioner of Central Excise] or the competent authority under the Customs Act, 1962 (52 of 1962) or the Gold (Control) Act, 1968 (45 of 1968), as the case may be, may, by order, determine in the case of a person referred to in clause (b), and for the period during which the insolvency contin­ues in the case of a person referred to in clause (c).

(5) If any person,—

(a) who is a legal practitioner, is found guilty of misconduct in his professional capacity by any authority entitled to institute proceedings against him, an order passed by that authority shall have effect in relation to his right to appear before a Central Excise Officer or the Appellate Tribunal as it has in relation to his right to practise as a legal practitioner;

(b) who is not a legal practitioner, is found guilty of miscon­duct in connection with any proceedings under this Act by the prescribed authority, the prescribed authority may direct that he shall thenceforth be disqualified to represent any person under sub-section (1).

(6) Any order or direction under clause (b) of sub-section (4) or clause (b) of sub-section (5) shall be subject to the following conditions, namely:—

(a) no such order or direction shall be made in respect of any person unless he has been given a reasonable opportunity of being heard;

(b) any person against whom any such order or direction is made may, within one month of the making of the order or direction, appeal to the Board to have the order or direction cancelled; and

(c) no such order or direction shall take effect until the expi­ration of one month from the making thereof, or, where an appeal has been preferred, until the disposal of the appeal.

—————

1. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

Section 36. DEFINITIONS.

In this Chapter -

(a) “Appointed day” means the date¹ of coming into force of the amendments to this Act specified in Part II of the Fifth Schedule to the Finance (No. 2) Act, 1980;

(b) “High Court” means, -

(i) In relation to any State, the High Court for that State;

(ii) In relation to a Union Territory to which the jurisdiction of the High Court of a State has been extended by law, that High Court;

(iii) In relation to the Union Territories of Dadra and Nagar Haveli and Daman and Diu, the High Court at Bombay;

(iv) In relation to any other Union Territory, the highest court of civil appeal for that territory other than the Supreme Court of India;

(c) “President” means the President of the Appellate Tribunal.

—————

1. Came into force on 11-10-1982, vide G.S.R. 592 (E), dated 11th October, 1982.

Section 36 A. PRESUMPTION AS TO DOCUMENTS IN CERTAIN CASES.

Where any document is produced 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 and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the Court shall, -

(a) Unless the contrary is proved by such person, presume -

(i) The truth of the contents of such document;

(ii) 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.

—————

1. Ins. by Act 36 of 1973, sec. 23 (w.e.f. 1-9-1973).

Section 36 B. ADMISSIBILITY OF MICRO FILMS, FACSIMILE COPIES OF DOCUMENTS AND COMPUTER PRINT OUTS AS DOCUMENTS AND AS EVIDENCE.

¹[36B. Admissibility of micro films, facsimile copies of docu­ments and computer print outs as documents and as evidence.—(1) Notwithstanding anything contained in any other law for the time being in force,—

(a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or

(b) a facsimile copy of a document; or

(c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a “computer print out”), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satis­fied in relation to the statement and the computer in question,

shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

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

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

(b) during the said period, there was regular supply to the computer in the ordinary course of the said activities, informa­tion of the kind contained in the statement or of the kind from which the information so contained is derived;

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

(d) the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of the said activities.

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

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

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

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

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

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

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

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

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

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

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

(5) For the purposes of this section,—

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

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

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

Explanation.—For the purposes of this section,—

(a) “computer” means any device that receives, stores and proc­esses data, applying stipulated processes to the information and supplying results of these processes; and

(b) any reference to information being derived from other infor­mation shall be a reference to its being derived therefrom by calculation, comparison or any other process.]

—————

1. Ins. by Act 27 of 1988, sec. 13 (w.e.f. 16-8-1988).

Section 37. POWER OF CENTRAL GOVERNMENT TO MAKE RULES.

37. Power of Central Government to make rules.—*(1) The Central Government may make rules to carry into effect the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may—

¹[(i) provide for determining under section 4 the nearest ascer­tainable equivalent of the normal price;

(ia) having regard to the normal practice of the wholesale trade, define or specify the kinds of trade discount to be excluded from the value under section 4 including the circumstances in which and the conditions subject to which such discount is to be so excluded;]

²[(ib)] provide for the assessment and collection of duties of excise, the authorities by whom functions under this Act are to be discharged, the issue of notices requiring payment, the manner in which the duties shall be payable, and the recovery of duty not paid;

³[(ibb) provide for charging or payment of interest on the differential amount of duty which becomes payable or refundable upon finalisation of all or any class of provisional assessments.]

⁴[(ic) provide for the remission of duty of excise leviable on any excisable goods, which due to any natural cause are found to be deficient in quantity, the limit or limits of percentage beyond which no such remission shall be allowed and the different limit or limits of percentage for different varieties of the same excisable goods or for different areas or for different seasons;]

⁵[(id) provide for the amount to be paid for compounding under sub-section (2) of section 9A;]

(ii) prohibit absolutely, or with such exceptions, or subject to such conditions as the Central Government thinks fit, the produc­tion or manufacture, or any process of the production or manufac­ture, of excisa­ble goods, or of any component parts or ingredients or containers thereof, except on land or premises approved for the purpose;

(iii) prohibit absolutely, or with such exceptions, or subject to such conditions as the Central Government thinks fit, ⁶[***] the transit of excisable goods from any part of ⁷[India] to any other part thereof;

(iv) regulate the removal of excisable goods from the place where produced, stored or manufactured or subjected to any process of production or manufacture and their transport to or from the premises of a ⁸[registered] person, or a bonded warehouse, or to a market;

(v) regulate the production or manufacture, or any process of the production or manufacture, the possession, storage and sale of salt, and so far as such regulation is essential for the proper levy and collection of the duties imposed by this Act, of any other excisable goods, or of any component parts or ingredients or containers thereof;

(vi) provide for the employment of officers of the Government to supervise the carrying out of any rules made under this Act;

(vii) require a manufacturer or the licensee of a warehouse to provide accommodation within the precincts of his factory or warehouse for officers employed to supervise the carrying out of regulations made under this Act and prescribe the scale of such accommodation;

(viii) provide for the appointment, licensing, management and supervision of bonded warehouses and the procedure to be followed in entering goods into and clearing goods from such warehouses;

(ix) provide for the distinguishing of goods which have been ⁹[manufactured after registration], of materials which have been imported under licence, and of goods on which duty has been paid, or which are exempt from duty under this Act;

(x) impose on persons engaged in the production or manufacture, storage or sale (whether on their own account or as brokers or commission agents) of salt, and, so far as such imposition is essential for the proper levy and collection of the duties im­posed by this Act, of any other excisable goods, the duty of furnishing information, keeping records and making returns, and prescribe the nature of such information and the form of such records and returns, the particulars to be contained therein, and the manner in which they shall be verified;

(xi) require that excisable goods shall not be sold or offered or kept for sale in ¹⁰[India] except in prescribed containers, bear­ing a banderol, stamp or label of such nature and affixed in such manner as may be prescribed;

(xii) provide for the issue of ¹¹[registration certificates] and transport permits and the fees, if any, to be charged therefore:

Provided that the fees for the licensing of the manufacture and refining of salt and saltpetre shall not exceed, in the case of each such licence, the following amounts, namely:—

(xiii) provide for the detention of goods, plant, machinery or material, for the purpose of exacting the duty, the procedure in connection with the confiscation, otherwise than under section 10 or section 28, of goods in respect of which breaches of the Act or rules have been committed, and the disposal of goods so de­tained or confiscated;

(xiv) authorise and regulate the inspection of factories and provide for the taking of samples, and for the making of tests, of any substance produced therein, and for the inspection or search of any place or conveyance used for the production, stor­age, sale or transport of salt, and so far as such inspection or search is essential for the proper levy and collection of the duties imposed by this Act, of any other excisable goods;

(xv) authorise and regulate the composition of offences against, or liabilities incurred under this Act or the rules made there­under;

(xvi) provide for the grant of a rebate of the duty paid on goods which are exported out of India or shipped for consumption on a voyage to any port outside India ¹²[including interest thereon];

¹³[***]

¹⁴[(xvia) provide for the credit of duty paid or deemed to have been paid on the goods used in, or in relation to, the manufac­ture of excisable goods;]

¹⁵[(xviaa) provide for credit of service tax leviable under Chapter V of the Finance Act, 1994 (32 of 1994), paid or payable on taxable services used in, or in relation to, the manufacture of excisable goods;]

¹⁶[(xvib) provide for the giving of credit of sums of money with respect to raw materials used in the manufacture of excisable goods;]

¹⁷[(xvic) provide for charging and payment of interest as the case may be, on credit of duty paid or deemed to have been paid on the goods used in, or in relation to, the manufacture of excisable goods where such credit is varied subsequently;]

(xvii) exempt any goods from the whole or any part of the duty imposed by this Act;

¹⁸[(xviia) provide incentives for increased production or manufac­ture of any goods by way of remission of, or any concession with respect to, duty payable under this Act;]

(xviii) define an area no point in which shall be more than one hundred yards from the nearest point of any place in which salt is stored or sold by or on behalf of the Central Government, or of any factory in which saltpetre is manufactured or refined, and regulate the possession, storage and sale of salt within such area;

(xix) define an area round any other place in which salt is manufactured, and regulate the possession, storage and sale of salt within such area;

(xx) authorise the ¹⁹[Central Board of Excise and Customs consti­tuted under the Central Boards of Revenue Act, 1963 (54 of 1963)] or ²⁰[Commissioners of Central Excise] appointed for the purposes of this Act to provide, by written instructions, for supplemental matters arising out of any rule made by the Central Government under this section;

²¹[(xxi) provide for the publication, subject to such conditions as may be specified therein, of names and other particulars of persons who have been found guilty of contravention of any of the provisions of this Act or of any rule made thereunder;]

²²[(xxii) provide for the charging of fees for the examination of excisable goods intended for export out of India and for render­ing any other service by a Central Excise Officer under this Act or the rules made thereunder.]

²³[(xxiii) specify the ²⁴[form and manner] in which application for refund shall be made under section 11B;

(xxiv) provide for the manner in which money is to be credited to the Fund;

(xxv) provide for the manner in which the Fund shall be utilised for the welfare of the consumers;

(xxvi) specify the form in which the account and records relating to the Fund shall be maintained;]

²⁵[(xxvii) specify the persons who shall get themselves registered under section 6 and the manner of their registration.]

²⁶[(xxviii) provide for the lapsing of credit of duty lying unutilised with the manufacturer of specified excisable goods on an appointed date and also for not allowing such credit to be utilised for payment of any kind of duty on any excisable goods on and from such date.]

²⁷[(2A) The power to make rules conferred by clause (xvi) of sub-section (2) shall include the power to give retrospective effect to rebate of duties on inputs used in the export goods from a date not earlier than the changes in the rates of duty on such inputs.]

(3) In making rules under this section, the Central Government may
provide that any person committing a breach of any rule shall, where no other penalty is provided by this Act, be liable to a penalty not exceeding ²⁸[five thousand rupees].

²⁹[(4) Notwithstanding anything contained in sub-section (3), and without prejudice to the provisions of section 9, in making rules under this section, the Central Government may provide that if any manufacturer, producer or licensee of a warehouse—

(a) removes any excisable goods in contravention of the provi­sions of any such rule, or

(b) does not account for all such goods manufactured, produced or stored by him, or

(c) engages in the manufacture, production or storage of such goods without having applied for the 30[registration as] required under section 6, or

³¹[(d) contravenes the provisions of any such rule with intent to evade payment of duty, then all such goods shall be liable to confiscation and the manufacturer, producer or licensee shall be liable to a penalty not exceeding the duty leviable on such goods or ³²[two thousand rupees], whichever is greater.]

³³[(5) Notwithstanding anything contained in sub-section (3), the Central Government may make rules to provide for the imposition upon any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, con­cealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or the rules made thereunder, a penalty ³⁴[not exceeding the duty leviable on such goods or ³⁵[two thousand rupees], whichever is greater].]

———-

* For the period commencing on and from the 1st day of March, 1983 and ending with the 28th day of February, 1987, sub-section (1) of section 37 shall stand substituted and shall be deemed to have effect as if for the said sub-section, the following sub-section had been so substituted, namely:—

“(1) The Central Government may make rules, including rules conferring the power to issue notifications with retrospective effect under those rules, to carry into effect the purposes of this Act.”.

Note.—Amendment made to sub-section (1) shall be in addition to, and not in derogation of, the provisions of section 4.

Vide The Central Excise Laws (Amendment and Validation) Ordinance, 2005 (1 of 2005), sec. 2 (w.e.f. 25-1-2005).

1. Ins. by Act 22 of 1973, sec. 3 (w.e.f. 1-9-1973).

2. Clause (i) re-numbered as clause (ib) by Act 22 of 1973, sec. 3 (w.e.f. 1-9-1973).

3. Ins. by Act 27 of 1999, sec. 131 (w.e.f. 11-5-1999).

4. Ins. by Act 25 of 1978, sec. 25 (w.e.f. 1-7-1978).

5.Ins. by Act 23 of 2004, sec. 85 (w.e.f. 10-9-2004).

6. Certain words omitted by Act 41 of 1954, sec. 2 and Sch. (w.e.f. 8-10-1954).

7. Subs. by Act 25 of 1950, sec. 11 and Sch. IV, for “the States”.

8. Subs. by Act 18 of 1992, sec. 113, for “licensed” (w.e.f. 4-5-1992).

9. Subs. by Act 18 of 1992, sec. 113, for “manufactured under licence” (w.e.f. 4-5-1992).

10. Subs. by Act 25 of 1950, sec. 11 and Sch. IV, for “the States”.

11. Subs. by Act 18 of 1992, sec. 113, for “licences” (w.e.f. 4-5-1992).

12. Ins. by Act 22 of 1995, sec. 78 (w.e.f. 26-5-1995).

13. Proviso omitted by Act 49 of 1957, sec. 2 (w.e.f. 20-12-1957).

14. Ins. by Act 23 of 1986, sec. 51 (w.e.f. 13-5-1987).

15. Ins. by Act 23 of 2004, sec. 85 (w.e.f. 10-9-2004).

16. Ins. by Act 11 of 1987, sec. 94 (w.e.f. 12-5-1987).

17. Ins. by Act 22 of 1995, sec. 78 (w.e.f. 26-5-1995).

18. Ins. by Act 14 of 1982, sec. 48 (w.e.f. 11-5-1982).

19. Subs. by Act 54 of 1963, sec. 5, for “Central Board of Reve­nue” (w.e.f. 1-1-1964).

20. Subs. by Act 22 of 1995, sec. 70, for “Collectors of Central Excise” (w.e.f. 26-5-1995).

21. Ins. by Act 36 of 1973, sec. 24 (w.e.f. 1-9-1973).

22. Ins. by Act 79 of 1985, sec. 6 (w.e.f. 27-12-1985).

23. Ins. by Act 40 of 1991, sec. 8 (w.e.f. 20-9-1991).

24. Ins. by Act 22 of 1995, sec. 78 (w.e.f. 26-5-1999).

25. Ins. by Act 18 of 1992, sec. 113 (w.e.f. 4-5-1992).

26. Ins. by Act 27 of 1999, sec. 131 (w.r.e.f. 16-3-1995).

27. Ins. by Act 22 of 1995, sec. 78 (w.e.f. 26-5-1999).

28. Subs. by Act 10 of 2000, sec. 108, for certain words (w.e.f. 12-5-2000).

29. Ins. by Act 19 of 1968, sec. 38(1) (w.e.f. 11-5-1968).

30. Subs. by Act 18 of 1992, sec. 113, for “licence” (w.e.f. 4-5-1992).

31. Subs. by Act 10 of 2000, sec. 108, for certain words, (w.e.f. 12-5-2000).

32. Subs. by Act 22 of 2007, sec. 132(i), for “ten thousand rupees” (w.e.f. 11-5-2007

33. Ins. by Act 36 of 1973, sec. 24 (w.e.f. 1-9-1973).

34. Subs. by Act 10 of 2000, sec. 108, for certain words, (w.e.f. 12-5-2000).

35.Subs. by Act 22 of 2007, sec. 132(ii), for “ten thousand rupees” (w.e.f. 11-5-2007).

Section 37 A. DELEGATION OF POWERS.

¹[37A. Delegation of powers.—The Central Government may, by notification in the Official Gazette, direct that subject to such conditions, if any, as may be specified in the notification—

(a) any power exercisable by the Board under this Act may be exercisable also by ²[a ³[Chief Commissioner of Central Ex­cise] or a ⁴[Commissioner of Central Excise]] empowered in this behalf by the Central Government;

(b) any power exercisable by a ⁴[Commissioner of Central Excise] under this Act may be exercisable also by a ⁵[Joint Commissioner of Central Excise] or an ⁶[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] empowered in this behalf by the Central Government; and

(c) any power exercisable by a ⁷[Joint Commissioner of Central Excise] under this Act may be exercisable also by an 6[Assistant Commissioner of Central Excise] empowered in this behalf by the Central Govern­ment; and

(d) any power exercisable by an ⁶[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under this Act may be exercisable also by a gazetted officer of Central Excise empowered in this behalf by the Board.]

—————

1. Ins. by Act 25 of 1978, sec. 26 (w.e.f. 1-7-1978).

2. Subs. by Act 29 of 1988, sec. 14, for “a Collector of Central Excise” (w.e.f. 16-8-1988).

3. Subs. by Act 22 of 1995, sec. 70, for “Principal Collector of Central Excise” (w.e.f. 26-5-1995).

4. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

5. Subs. by Act 27 of 1999, sec. 119(a), for “Deputy Commissioner of Central Excise” (w.e.f. 11-5-1999).

6. Subs. by Act 27 of 1999, sec. 119(a), for “Assistant Commissioner of Central Excise” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Central Excise” were substituted by Act 22 of 1995, sec. 70, for “Assistant Collector of Central Excise” (w.e.f. 26-5-1995).

7. Subs. by Act 27 of 1999, sec. 119(a), for “Deputy Commissioner of Central Excise” (w.e.f. 11-5-1999). Earlier the words “Deputy Commissioner of Central Excise” were substituted by Act 22 of 1995, sec. 70, for “Deputy Collector of Central Excise (w.e.f. 26-5-1995).

Section 37 B. INSTRUCTIONS TO CENTRAL EXCISE OFFICERS.

¹37B. INSTRUCTIONS TO CENTRAL EXCISE OFFICERS.

The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), may, if it considers it necessary or expedient so to do for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods, issue such orders, instructions and directions to the Central Excise Officers as it may deem fit, and such officers and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the said Board :

Provided that no such orders, instructions or directions shall be issued -

(a) So as to require any Central Excise Officer to make a particular assessment or to dispose of a particular case in a particular manner; or

(b) So as to interfere with the discretion of the ²Commissioner of Central Excise (Appeals) in the exercise of his appellate functions.

—————

1. Ins. by Act 79 of 1985, sec.7 (w.e.f. 27-12-1985).

2. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise (Appeals)” (w.e.f. 26-5-1995).

Section 37 C. SERVICE OF DECISIONS, ORDERS, SUMMONS, ETC.

(1) Any decision or order passed or any summons or notices issued under this Act or the rules made there under, shall be served, -

(a) By tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorised agent, if any;

(b) If the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended;

(c) If the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice.

(2) Every decision or order passed or any summons or notice issued under this Act or the rules made there under, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1).

Section37 D. ROUNDING OFF OF DUTY, ETC.

¹37D. ROUNDING OFF OF DUTY, ETC.

The amount of duty, interest, penalty, fine or any other sum payable, and the amount of refund or any other sum due, under the provisions of this Act shall be rounded off to the nearest rupee and, for this purpose, where such amount contains a part of a rupee consisting of paise then, if such part is fifty paise or more, it shall be increased to one rupee and if such part is less than fifty paise it shall be ignored.

—————

1. Ins. by Act 12 of 1990, sec. 65 (w.e.f. 31-5-1990).

Section 38. PUBLICATION OF RULES AND NOTIFICATIONS AND LAYING OF RULES BEFORE PARLIAMENT.

¹[38. Publication of rules and notifications and laying of rules before Parliament.—(1) All rules made and notifications issued under this Act shall be published in the Official Gazette.

²[(2) Every rule made under the Act, every notification issued under ³[section 3A, section 4A,] sub-section (1) of section 5A, and section 11C and every order made under sub-section (2) of section 5A, other than an order relating to goods of strategic, secret, individual or personal nature, shall be laid, as soon as may be after it is made or 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 rule or notification or order, or both Houses agree that the rule should not be made or notification or order should not be issued or made, the rule or notification or order 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 notifi­cation or order.]]

—————

1. Subs. by Act 22 of 1973, sec. 4, for section 38 (w.e.f. 1-9-1973).

2. Subs. by Act 22 of 1995, sec. 79, for sub-section (2) (w.e.f. 26-5-1995). Earlier sub-section (2) was substituted by Act 29 of 1988, sec. 15, (w.e.f. 16-8-1988).

3. Ins. by Act 26 of 1997, sec. 84 (w.e.f. 14-5-1997).

Section 39 . REPEAL OF ENACTMENTS.

[Repealed by the Repealing and Amending Act, 1947 (2 of 1948) s. 2 and Sch.]

Section 40. PROTECTION OF ACTION TAKEN UNDER THE ACT.

¹40. PROTECTION OF ACTION TAKEN UNDER THE ACT.

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

(2) No proceeding, other than a suit, shall be commenced against the Central Government or any officer of the Central Government or a State Government for anything done or purported to have been done in pursuance of this Act or any rule made there under, without giving the Central Government or such officer a month’s previous notice in writing of the intended proceeding and of the cause thereof or after the expiration of three months from the accrual of such cause.

—————

1. Subs. by Act 22 of 1973, sec. 5, for section 40 (w.e.f. 1-9-1973).

SCHEDULES

THE FIRST SCHEDULE -

The First Schedule.—[Rep. by the Central Excise Tariff Act, 1985 (5 of 1986),sec. 4 (w.e.f. 28-2-1986)].

THE SECOND SCHEDULE

(See sections 6 and 8)

PART A

Excisable goods specified for the purposes of section 6—

1. Tobacco

2. Betel-nuts When supplied by a curor to a wholesale dealer,

3. Coffee Whether directly or through a broker or commission agent.

PART B

Excisable goods specified for the purposes of section 8—

1. Tobacco.

THE THIRD SCHEDULE -

1[THE THIRD SCHEDULE
[See section 2(f)(iii)]
NOTES

1. In this Schedule, “heading”, “sub-heading” and “tariff item” mean respectively a heading, sub-heading and, tariff item in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986).

2. The rules for the interpretation of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), the section and Chapter Notes and the General Explanatory Notes of the First Schedule shall, apply to the interpretation of this Schedule.

1. Ins. by the Finance Act, 2007

1. Subs. by the Finance Act, 2007, sec. 133 and Sch. IV, for S. No. 71A. Earlier S. No. 71A was inserted by Act 21 of 2006, sec. 66 and Sch. V w.e.f. 1-1-2007). S. No. 71A, before substitution by the Finance Act, 2007, stood as under: “71A. 8443 Fascimile machines”.

2. Ins. by the Finance Act, 2007.

3. Ins. by Act 21 of 2006, sec. 66 and Sch. V. (w.e.f. 1-1-2007).

4. Subs. by Act 21 of 2006, for “Electro-mechanical domestic appliances with self-contained electric motor” (w.e.f. 1-1-2007).

1. Words “Facsimile machines” omitted by Act 21 of 2006, sec. 66 (w.e.f. 1-1-2007).

2. Ins. by the Finance Act, 2007.

3. Subs by the Finance Act, 2007, for “8519 or 8520”.

4. Subs. by Act 21 of 2006, sec. 66 for “Unrecorded audio cassette” (w.e.f. 1-1-2007).

5. Figures and words “8523 Video cassettes” omitted by Act 21 of 2006, sec. 66 (w.e.f. 1-1-2007).

6. Figures and words “8523 magnetic discs” omitted by Act 21 of 2006, sec. 66 (w.e.f. 1-1-2007).

7. Figures and words “8524 Video cassettes” omitted by Act 21 of 2006, sec. 66 (w.e.f. 1-1-2007).

8. Figures and words “8524 Magnetic discs” omitted by Act 21 of 2006, sec. 66 (w.e.f. 1-1-2007).

9. Subs. by Act 21 of 2006, sec. 66 (w.e.f. 1-1-2007). Before substitution, Sr. No. 89 stood as: “89. 8525 Pagers. Cellular or mobile phones”.

10. Subs by the Finance Act, 2007, for “8536”.

1. Ins. by the Finance Act, 2007.

2. Ins. by Act 21 of 2006, sec. 66 (w.e.f. 1-6-2006).

3. S. No. 101 omitted by the Finance Act, 2007. S. No. 101, before omission, stood as under: “101. 3808 30 40 Plant-growth regulator”.

4. S. No. 102 omitted by the Finance Act, 2007. S. No. 102, before omission, stood as under: “102. 9603 21 00 Toothbrush”.

Citizenship Act

November 30, 2014

Section 1. Short title.

This Act may be called the Citizenship Act, 1955.

Section 2. Interpretation.

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

(a) “a Government in India” means the Central Government or a State Government;

¹[(b) “illegal migrant” means a foreigner who has entered into India

(i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or

(ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time;]

(d) “Indian consulate” means the office of any consular officer of the Government of India where a register of births is kept, or where there is no such office, such office as may be prescribed;

(e) “minor” means a person who has not attained the age of eighteen years:

²[(ee) “overseas citizen of India” means a person registered as an overseas citizen of India by the Central Government under section 7A;]

(f) “person” does not include any company or association or body of individuals, whether incorporated or not;

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

³[***]

(h) “undivided India” means India as defined in the Government of India Act, 1935, as originally enacted.

STATEMENT OF OBJECTS AND REASONS [The Citizenship (Amendment) Act, 2005]

To expand the scope of grant of Overseas Citizenship of India to Persons of Indian Origin of all countries except Pakistan and Bangladesh.

(2) For the purposes of this Act, a person born aboard a registered ship or
aircraft, or aboard an unregistered ship or aircraft of the Government of any country, shall be deemed to have been born in the place in which the ship or aircraft was registered or, as the case may be, in that country.

(3) Any reference in this Act to the status or description of the father of a person at the time of that person’s birth shall, in relation to a person born after the death of his father, be construed as a reference to the status or description of the father at the time of the father’s death; and where that death occurred before, and the birth occurs after, the commencement of this Act, the status or description which would have been applicable to the father had he died after the commencement of this Act shall be deemed to be the status or description applicable to him at the time of his death.

(4) For the purposes of this Act, a person shall be deemed to be of full age
if he is not a minor and of full capacity if he is not of unsound mind.

——————–

1. Subs. by Act 6 of 2004, sec. 2, for clauses (b) and (el-and the proviso to clause (c) (w.e.f, 3-12-2004). (See Annexe 1) .

2. Subs. by the Citizenship (Amendment) Act, 2005, sec. 2 (w.r.e.f, 28-6-2005), for clause “(ee) “overseas citizen of India” means a person who-

(i) is of Indian origin being a citizen of a specified country, or

(ii) was a citizen of India immediately before becoming a citizen of a specified country, and is registered as an overseas citizen of India by the Central Government under subsection (1) of section 7A;

3. Clause (gg) omitted by the Citizenship (Amendment) Act, 2005, sec. 2 (w.r.e.f, 28-6-2005).

Clause (gg) prior to its omission stood as:

“(gg) “specified country” means a country specified in the Fourth Schedule:

Provided that the Central Government may, by notification in the Official Gazette, amend the said Schedule by way of addition or omission of any entry therein:

Provided further that every notification issued under this clause shall, as soon as may be, after it is made, be laid before each House of Parliament”.

Acquisition of Citizenship

Section 3. Citizenship by birth.

¹[Citizenship by birth. (1) Except as provided in sub-section (2), every person born in India,-

(a) on or after the 26^th day of January, 1950, but before the 1^st day of July, 1987;

(b) on or after the 1^st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth;

(c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where-

(i) both of his parents are citizens of India; or

(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth,

shall be a citizen of India by birth.

(2) A person shall not be a citizen of India by virtue of this section if at the time of his birth-

(a) either his father or mother possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she, as the case may be, is not a citizen of India; or

(b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy.]

——————–

1. Subs. by Act 6 of 2004, sec. 3, for section 3 (w.e.f. 3-12-2004). (See Annexe 1)

Section 4. Citizenship by descent.

¹[(1) A person born outside India shall be a citizen of India by descent,-

(a) on or after the 26^th day of January, 1950, but before the 10^th day of December, 1992, if his father is a citizen of India at the time of his birth; or

(b) on or after the 10^th day of December, 1992, if either of his parents is a citizen of India at the time of his birth:

Provided that if the father of a person referred to in clause (a) was a citizen of India by descent only, that person shall not be a citizen of India by virtue of this section unless-

(a) his birth is registered at an Indian consulate within one year of its occurrence or the commencement of this Act, whichever is later, or, with the permission of the Central Government, after the expiry of the said period; or

(b) his father is, at the time of his birth, in service under a Government in India:

Provided further that if either of the parents of a person referred to in clause (b) was a citizen of India by descent only, that person shall not be a citizen of India by virtue of this section unless- .

(a) his birth is registered at an Indian consulate within one year of its occurrence or on or after the 10^th day of December, 1992, whichever is later, or, with the permission of the Central Government, after the expiry of the said period; or

(b) either of his parents is, at the time of his birth, in service under a Government in India:

Provided also that on or after the commencement of the Citizenship (Amendment) Act, 2003, a person shall not be a citizen of India by virtue of this section, unless his birth is registered at an Indian consulate in such form and in such manner, as may be prescribed,-

(i) within one year of its occurrence or the commencement of the Citizenship (Amendment) Act, 2003, whichever is later; or

(ii) with the permission of the Central Government, after the expiry of the said period:

Provided also that no such birth shall be registered unless the parents of such person declare, in such form and in such manner as may be prescribed, that the minor does not hold the passport of another country.

(lA) A minor who is a citizen of India by virtue offhis section and is also a citizen of any other country shall cease to be a citizen of India if he does not renounce the citizenship or nationality of another country within six months of attaining full age.]

(2) if the Central Government so directs, a birth shall be deemed for the purposes of this section to have been registered with its permission, notwithstanding that its permission was not obtained before the registration.

(3) For the purposes of the proviso to sub-section (I), any ²[person] born outside undivided India who was, or was deemed to be, a citizen of India at the commencement of the Constitution shall be deemed to be a citizen of India by descent only.

——————–

1. Subs. by Act 6 of 2004, sec. 4, for sub-section (1) (w.e.f. 3-12-2004). (See Annexe 1)

2. Subs. by Act 39 of 1992, sec. 2, for “any male person” (w.e.f. 10-12-1992).

Section 5. Citizenship by registration.

¹[(1) Subject to the provisions of this section and such other conditions and restrictions as may be prescribed, the Central Government may, on an application made in this behalf, register as a citizen of India any person not being an illegal migrant who is not already such citizen by virtue of the Constitution or of any other provision of this Act if he belongs to any of the following categories, namely:-

(a) a person of Indian origin who are ordinarily resident in India for seven years before making an application for registration;

(b) a person of Indian origin who is ordinarily resident in any country or place outside undivided India;

(c) a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;

(d) minor children of persons who are citizens of India;

(e) a person of full age and capacity whose parents are registered as citizens of India under clause (a) of this sub-section or sub-section (1) of section 6;

(f) a person of full age and capacity who, or either of his parents, was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration;

(g) a person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for ²[one year] before making an application for registration.

STATEMENT OF OBJECTS AND REASONS [The Citizenship (Amendment) Act, 2005]

To reduce the period of residence in India from two years to one year for the persons registered as Overseas Citizens of India to acquire Indian citizenship.

Explanation 1.- For the purposes of clauses (a) and (c), an applicant shall be deemed to be ordinarily resident in India if-

(i) he has resided in India throughout the period of twelve months immediately before making, an application for registration; and

(ii) he has resided in India during the eight years immediately preceding the said period of twelve months for a period of not less than six
years.

Explanation 2.- For the purposes of this sub-section, a person shall be deemed to be of Indian origin if he, or either of his parents, was born in undivided India or in such other territory which became part of India after the 15^th day of August, 1947.}

(2) No person being of full age shall be registered as a citizen of India under sub-section (1) until he has taken the oath of allegiance in the form specified in the Second Schedule.

(3) No person who has renounced, or has been deprived of, his Indian citizenship or whose Indian citizenship has terminated, under this Act shall be registered as a citizen of India under sub-section (1) except by order of the Central Government.

(4) The Central Government may, if satisfied that there are special circumstances justifying such registration, cause any minor to be registered as a citizen of India.

(5) A person registered under this section shall be a citizen of India by registration as from the date on which he is so registered; and a person registered under the provisions of clause(b)(ii) of article 6 or article 8 of the Constitution shall be deemed to be a citizen of India by registration as from the commencement of the Constitution or the date on which he was so registered, whichever may be later.

³[(6) If the Central Government is satisfied that circumstances exist which render it necessary to grant exemption from the residential requirement under clause (c) of sub-section (1) to any person or a class of persons, it may, for reasons to be recorded in writing, grant such exemption.]

——————–

1. Subs. by Act 6 of 2004, sec. 5, for sub-section (1) (w.e.f. 3-12-2004). (See Annexe 1)

2. Subs. by the Citizenship (Amendment) Act, 2005, sec. 3, for “two years”, (w.r.e.f. 28-6-2005).

3. Ins. by Act 6 of 2004, sec. 5 (w.e.f, 3-12-2004).

Section 6. Citizenship by naturalisation.

(l) Where an application is made in the prescribed manner by any person of full age and capacity ¹[not being an illegal migrant] for the grant of a certificate of naturalisation to him, the Central Government may, if satisfied that the applicant is qualified for naturalisation under the provisions of the Third Schedule, grant to him a certificate of naturalisation:

Provided that, if in the opinion of the Central Government, the applicant is a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it may
waive all or any of the conditions specified in the Third Schedule.

(2) The person to whom a certificate of naturalisation is granted under subsection (1) shall, on taking the oath of allegiance in the form specified in the Second Schedule, be a citizen of India by naturalisation as from the date on which that certificate is granted.

——————–

1. Subs. by Act 6 of 2004, sec. 6, for “who is not a citizen of a country specified in the First Schedule (w.e.f, 3-12-2004).

Section 6 A. Special provisions as to citizenship of persons covered by the Assam Accord.

¹[Special provisions as to citizenship of persons covered by the Assam Accord. (1) For the purposes of this section-

(a) “Assam” means the territories included in the State of Assam immediately before the commencement of the Citizenship (Amendment) Act, 1985;

(b) “detected to be a foreigner” means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946 (31 of 1946) and the Foreigners (Tribunals) Order, 1964 by a Tribunal constituted under the said Order;

(c) “specified territory” means the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985;

(d) a person shall be deemed to be of Indian origin, if he, or either of his parents for any of his grandparents was born in undivided India;

(e) a person shall be deemed to have been detected to be a foreigner on the date on which a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opinion to the effect that he is a foreigner to the officer or authority concerned.

(2) Subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before the Ist day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the Ist day of January, 1966.

(3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who-

(a) came to Assam on or after the 1^st day of January, 1966 but before the 25^th day of March, 1971 from the specified territory; and

(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and

(c) has been detected to be a foreigner,

shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (thereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom.

Explanation.-In the case of every person seeking registration under this subsection, the opinion of the Tribunal constituted under the Foreigners (Tribunals Order, 1964 holding such person to be a foreigner, shall be deemed to b sufficient proof of the requirement under clause (c) of this sub-section and if an question arises as to whether such person complies with any other requiremen under this sub-section, the registering authority shall,-

(i) if such opinion contains a finding with respect to such other requirement, decide the question in conformity with such finding;

(ii) if such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal constituted under the said Order hang jurisdiction in accordance with such rules as the Central Government may make in this behalf under section 18 and decide the question in conformity with the opinion received on such reference.

(4) A person registered under sub-section (3) shall have, as from the date on which he has been detected to be a foreigner and till the expiry of a period of ten years from that date, the same rights and obligations as a citizen of India (including the right to obtain a passport under the Passports Act, 1967 (15 of 1967) and the obligations connected therewith), but shall not be entitled to have his name included in any electoral roll for any Assembly or Parliamentary constituency at any time before the expiry of the said period of ten years.

(5) A person registered under sub-section (3) shall be deemed to be a citizen of India for all purposes as from the date of expiry of a period of ten years from the date on which he has been detected to be a foreigner.

(6) Without prejudice to the provisions of section 8,-

(a) if any person referred to in sub-section (2) submits in the prescribed manner and form and to the prescribed authority within sixty days from the date of commencement of the Citizenship (Amendment) Act, 1985, for year a declaration that he does not wish to be a citizen of India, such person shall not be deemed to have become a citizen of India under that sub-section;

(b) If any person referred to in sub-section (3) submits in the prescribed manner and form and to the prescribed authority within sixty days from the date of commencement the Citizenship (Amendment) Act, 1985, for year or from the date on which he has been detected to be a foreigner, whichever is later, a declaration that he does not wish to be governed by the provisions of that sub-section and sub-sections (4) and (5), it shall not be necessary for such person to register himself under sub-section (3).

Explanation.- Where a person required to file a declaration under this subsection does not have the capacity to enter into a contract, such declaration may be filed on his behalf by any person competent under the law for the time being in force to act on his behalf.

(7) Nothing in sub-sections (2) to (6) shall apply in relation to any person -

(a) who, immediately before the commencement of the Citizenship (Amendment) Act, 1985, for year is a citizen of India;

(b) who was expelled from India before the commencement of the Citizenship (Amendment) Act, 1985, for year under the Foreigners Act, 1946 (31 of 1946).

(8) Save as otherwise expressly provided in this section, the provisions of this section shall have effect notwithstanding anything contained in any other law for the time being in force.]

——————–

1. Ins. by Act 65 of 1985, sec. 2 (w.e.f. 7-12-1985).

Section 7. Citizenship by incorporation of territory.

If any territory becomes a part of India, the Central Government may, by order notified in the Official Gazette, specify the persons who shall be citizens of India by reason of their connection with that territory; and those persons shall be citizens of India as from the date to be specified in the order.

Overseas Citizenship

Section 7 A. Registration of overseas citizens of India.

¹[Overseas Citizenship]

²[Registration of overseas citizens of India. (1) The Central Government may, subject to such conditions and restrictions as may be prescribed, on an application made in this behalf, register any person as an overseas citizen of India-

(a) any person of full age and capacity,-

(i) who is citizen of another country, but was a citizen of India at the time of, or at any time after, the commencement of the Constitution; or

(ii) who is citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the Constitution; or

(iii) who is citizen of another country, but belonged to a territory that became part of India after the 15th day of August, 1947; or

(iv) who is a child or a grand-child of such a citizen; or

(b) a person, who is a minor child of a person mentioned in clause (a): Provided that no person, who is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify, shall be eligible for registration as an overseas citizen of India.]

——————–

1. Ins. by Act 6 of 2004, sec. 7 (w.e.f. 3-12-2004).

2. Subs. by the Citizenship (Amendment) Act, 2005, sec. 4 (w.r.e.f, 28-6-2005), for section “7A. Registration of overseas citizens.-(l) The Central Government may, subject to such conditions and restrictions including the condition of reciprocity as may be prescribed, on an application made in this behalf, register any person as an overseas citizen of India if-

(a) that person is of Indian origin of full age and capacity who is a citizen of a specified country; or

(b) that person is of full age and capacity who has obtained the citizenship of a specified country on or after the commencement of the Citizenship (Amendment) Act, 2003 and who was a citizen of India immediately before such commencement; or

(c) that person is a minor of a person mentioned in clause (a) or clause (b).

(2) The person registered as an overseas citizen of India under sub-section (1) shall be an overseas citizen of India as from the date on which he is so registered.

(3) No person who has been deprived of his Indian citizenship under this Act shall be registered as an overseas citizen of India under sub-section (1) except by an order of the Central Government.

Explanation.-For the purposes of this section and sections 7B, 7C and 7D, the expression “person of Indian origin” shall mean a citizen of another country who-

(i) was eligible to become a citizen of India at the time of the commencement of the Constitution;

(ii) belonged to a territory that became part of India after the 15th day of August, 1947; and

(iii) the children and grand-children of a person covered under clauses (i) and (ii); but does not include a person who is or had been at any time a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify.”

Section 7 B. Conferment of rights on overseas citizens of India.

¹[Conferment of rights on overseas citizens of India.

(1) Notwithstanding anything contained in any other law for the time being in force, an overseas citizen of India shall be entitled to such rights [other than the rights specified under sub-section (2)] as the Central Government may, by notification in the Official Gazette, specify in this behalf.

(2) An overseas citizen of India shall not be entitled to the rights conferred on a citizen of India-

(a) under article 16 of the Constitution with regard to equality of opportunity in matters of public employment;

(b) under article 58 of the Constitution for election as President:

(c) under article 66 of the Constitution for election of Vice-President;

(d) under article 124 of the Constitution for appointment as a Judge of the Supreme Court:

(e) under article 217 of the Constitution for appointment as a Judge of the High Court;

(f) under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to registration as a voter;

(g) under sections 3 and 4 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the House of the People or of the Council of States, as the case may be;

(h) under sections 5, 5A and 6 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the Legislative Assembly or a Legislative Council, as the case may be, of a State;

(i) for appointment to public services and posts in connection with the affairs of the Union or of any State except for appointment in such services and posts as the Central Government may by special order in that behalf specify.

(3) Every notification issued under sub-section (1) shall be laid before each House of Parliament.]

——————-

1. Ins. by Act 6 of 2004, sec. 7 (w.e.f. 3-12-2004).

Section 7 C. Renunciation of overseas citizenship.

¹[Renunciation of overseas citizenship. (1) If any overseas citizen of India of full age and capacity makes in the prescribed manner a declaration renouncing his overseas citizenship of India, the declaration shall be registered by the Central Government, and; upon such registration, that person shall cease to be an overseas citizen of India.

(2) Where a person ceases to be an overseas citizen of India under sub-section (1), every minor child of that person registered as an overseas citizen of India, shall thereupon cease to be an overseas citizen of India.]

——————-

1. Ins. by Act 6 of 2004, sec. 7 (w.e.f. 3-12-2004).

Section 7 D. Cancellation of registration as overseas citizen of India.

¹[Cancellation of registration as overseas citizen of India. The Central Government may, by order, cancel the registration granted under sub-section (1) of section 7A if it is satisfied that -

(a) the registration as an overseas citizen of India was obtained by means of fraud, false representation or the concealment of any material fact; or

(b) the overseas citizen of India has shown disaffection towards the Constitution of India as by law established; or

(c) the overseas citizen of India has, during any war in which India may be engaged, unlawfully traded or communicated with an enemy or been engaged in.: or associated with, any business or commercial activity that was to his knowledge carried on in such manner as to assist an enemy in that war; or

(d) the overseas citizen of India has, within five years after registration under sub-section (1) of section 7A has been sentenced to imprisonment for a term of not less than two years; or

(e) it is necessary so to do in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.]

——————–

1. Ins. by Act 6 of 2004, sec. 7 (w.e.f. 3-12-2004).

Termination of Citizenship

Section 8. Renunciation of citizenship.

(1) If any citizen of India of full age and capacity, ¹[***] makes in the prescribed manner a declaration renouncing his Indian Citizenship, the declaration shall be registered by the prescribed authority; and, upon such registration, that person shall cease to be a citizen of India:

Provided that if any such declaration is made during any war in which India may be engaged, registration thereof shall be withheld until the Central Government otherwise directs.

(2) Where ²[a person] ceases to be a citizen of India under sub-section (1)
every minor child of that person shall thereupon cease to be a citizen of India:

Provided that any such child may, within one year after attaining full age, make a declaration ³[in the prescribed form and manner] that he wishes to
resume Indian citizenship and shall thereupon again become a citizen of India.

——————–

1. The words “who is also a citizen or national of another country”, omitted by Act 6 of 2004, sec. 8 (w.e.f. 3-12-2004).

2. Subs. by Act 39 of 1992, sec. 3, for “a male person” (w.e.f. 10-12-1992).

3. Ins. by Act 6 of 2004, sec. 8 (w.e.f. 3-12-2004).

4. Sub-section (3) omitted by Act 6 of 2004, sec. 8 (w.e.f. 3-12-2004). (See Annexe 1)

Section 9. Termination of citizenship.

(1) Any citizen of India who by naturalisation, registration otherwise voluntarily acquires, or has at any time between the 26^th January, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India:

Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires, the citizenship of another country, until the Central Government otherwise directs.

(2) If any question arises as to whether, when or how any ¹[citizen of India] has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.

——————-

1. Subs. by Act 6 of 2004, sec. 9, for “person” (w.e.f. 3-12-2004).

Section 10. Deprivation of citizenship.

(1) A citizen of India who is such by riaturalisation or by virtue only of clause (c) of article 5 of the Constitution or by registration otherwise than under clause (b) (ii) of arlicle 6 of the Constitution or clause (a) of sub-section (1) of section 5 of this Act, shall cease to be a citizen of India, if he is deprived of that citizenship by an order of the Central Government under this section.

(2) SUbject to the provisions of this section, the Central Government may, by order, deprive any such citizen of Indian citizenship, if it is satisfied that-

(a) the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact; or

(b) that citizen has shown himself by act or speech to be disloyal or disaffected towards the Constitution of India as by law established; or

(c) that citizen has, during any war in which India may be engaged unlawfully traded or communicated with an enemy or been engaged in, or associated with, any business that was to his knowledge carried on in such manner as to assist an enemy in that war; or

(d) that citizen has, within five years after registration or naturalisation, been sentenced in any country to imprisonment for a term of not less than two years; or

(e) that citizen has been ordinarily resident out of India for a continuous period of seven years, and during that period, has neither been at any time a student of any educational institution in a country outside India or in the service of a Government in India or of an international organisation of which India is a member, nor registered annually in the prescribed manner at an Indian consulate his intention to retain his citizenship of India.

(3) The Central Government shall not deprive a person of citizenship under
this section unless it is satisfied that it is not conducive to the public good that the person should continue to be a citizen of India.

(4) Before making an order under this section, the Central Government shall give the person against whom the order is proposed to be made notice in writing informing him of the ground on which it is proposed to be made and, if the order is proposed to be made on any of the grounds specified in sub-section (2) other than clause (e) thereof, of his right, upon making application therefor in the prescribed manner, to have his case referred to a committee of inquiry under this section.

(5) If the order is proposed to be made against a person on any of the grounds specified in sub-section (2) other than clause (e) thereof and that person so applies in the prescribed manner, the Central Government shall, and in any other case it may, refer the case to a Committee of Inquiry consisting of a chairman (being a person who has for at least ten years held a judicial office) and two other members appointed by the Central Government in this behalf.

(6) The Committee of Inquiry shall, on such reference, hold the inquiry in such manner as may be prescribed and submit its report to the Central Government; and the Central Government shall ordinarily be guided by such report in making an order under this section.

Supplemental

Section 11. Commonwealth citizenship.

[Rep. by the Citizenship (Amendment) Act, 2003 (6 of 2004), sec. 10.]

Section 12. Power to confer rights of Indian citizen or citizens of certain countries.

[Rep. by the Citizenship (Amendment) Act, 2003 (6 of 2004), sec. 10.]

Section 13. Certificate of Citizenship in case of doubt.

The Central Government may, in such cases as it thinks fit, certify that a person, with respect to whose citizenship of India a doubt exists, is a citizen of India; and a certificate issued under this section shall, unless it is proved that it was obtained by means of fraud, false representation or concealment of any material fact, be conclusive evidence that person was such a citizen on the date thereof, but without prejudice to any evidence that he was such a citizen at an earlier date.

Section 14. Disposal of application under [sections 5, 6 and 7A].

Disposal of application under ¹[sections 5, 6 and 7A]. (1) The prescribed authority or the Central Government may, in its discretion, grant or refuse an application under ²[section 5,6 or section 7A] and shall not be required to assign any reasons for such grant or refusal.

(2) Subject to the provisions of section 15 the decision of the prescribed authority or the Central Government on any such application as aforesaid shall be final and shall not be called in question in any court.

——————–

1. Subs. by Act 6 of 2004, sec. 11, for “sections 5 and 6″ (w.e.f, 3-12-2004).

2. Subs. by Act 6 of 2004, sec. 11, for “section 5 or section 6″ (w.e.f, 3-12-2004). Ed. section 11 of the Act 6 of 2004, states that for the words and figures “sections 5 and 6″, the words, figures and letter “sections 5, 6 and 7A” shall be substituted. The words “sections 5 and 6″ appear in the heading and not in the body, but in the body the text has been changed according to its construction.

Section 14 A. Issue of national identity cards.

¹[Issue of national identity cards. (1) The Central Government may compulsorily register every citizen of India and issue national identity card to him.

(2) The Central Government may maintain a National Register of Indian Citizens and for that purpose establish a National Registration Authority.

(3) On and from the date of commencement of the Citizenship (Amendment) Act, 2003, the Registrar General, India, appointed under sub-section (1) of section 3 of the Registration of Births and Deaths Act, 1969 (18 of 1969) shall act as the National Registration Authority and he shall function as the Registrar General of Citizen Registration.

(4) The Central Government may appoint such other officers and staff as may be required to assist the Registrar General of Citizen Registration in discharging his functions and responsibilities.

(5) The procedure to be followed in compulsory registration of the citizens of India shall be such as may be prescribed.]

——————–

1. Ins. by Act 6 of 2004, sec. 12 (w.e.f. 3-12-2004).

Section 15. Revision.

(1) Any person aggrieved by an order made under this Act by the prescribed authority or any officer or other authority (other than the Central Government) may, within a period of thirty days from the date of the order, make an application to the Central Government for revision of that order:

Provided that the Central Government may entertain the application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.

(2) On receipt of any such application under sub-section (I), the Central Government shall, after considering the application of the aggrieved person and any report thereon which the officer or authority making the order may submit, make such order in relation to the application as it deems fit, and the decision of the Central Government shall be final.

Section 15 A. Review.

¹[Review. (1) Any person aggrieved by an order made by the Central Government, may within thirty days from the date of such order, make an application for review of such order:

Provided that the Central Government may entertain application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time:

Provided further that an application for a review of an order passed in terms of the provisions of section 14A shall be disposed of in the manner provided for in the procedure as may be laid down under clause (ia) of sub-section (2) of section 18.

(2) On receipt of an application under sub-section (I), the Central Government shall, make such order as it deems fit, and the decision of the
Central Government on such review shall be final.]

——————–

1. Ins. by Act 6 of 2004, sec. 13 (w.e.f. 3-12-2004).

Section 16. Delegation of power.

The Central Government may, by order, direct that any power which is conferred on it by any of the provisions of this Act other than those of section 10 and section 18 shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercisable also by
such officer or authority as may be so specified.

Section 17. Offences.

Any person who, for the purpose of procuring anything to be done or not to be done under this Act, knowingly makes any representation which is false in a material particular shall be punishable with imprisonment for a term which may extend to ¹[five years], or ²[with fine which may extend to fifty thousand rupees], or with both.

——————–

1. Subs. by Act 6 of 2004, sec. 14, for “six months” (w.e.f. 3-12-2004).

2. Subs. by Act 6 of 2004, sec. 14, for “with fine” (w.e.f. 3-12-2004).

Section 18. Power to make rules.

(1) The Central Government may, by notification in the Official Gazette make rules to carry out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for-

(a) the registration of anything required or authorized under this Act to be registered, and the conditions and restrictions in regard to such registra tion;

¹[(aa) the form and manner in which a declaration under sub-section (1) of
section 4 shall be made;]

(b) the forms to be used and the registers to be maintained under this Act;

(c) the administration and taking of oaths of allegiance under this Act and the time within which, and the manner in which, such oaths shall be taken and recorded;

(d) the giving of any notice required or authorized to be given by any person under this Act;

(e) the cancellation of the registration of, and the cancellation and amendment of certificate of naturalisation relating to, persons deprived of citizenship under this Act, and the delivering up of such certificates for those purposes;

²[(ee) the manner and form in which and the authority to whom declarations referred to in clauses (a) and (b) of sub-section (b) of section 6A shall be submitted and other matters connected with such declarations;]

(f) the registration at Indian consulates of the births and deaths of persons of any class or description born or dying outside India;

(g) the levy and collection of fees in respect of applications, registrations, declarations and certificates under this Act, in respect of the taking of an oath of allegiance, and in respect of the supply of certified or other copies of documents;

(h) the authority to determine the question of acquisition of citizenship of another country, the procedure to be followed by such authority and rules of evidence relating to such cases;

(i) the procedure to be followed by the committees of inquiry appointed under section 10 and the conferment on “such committees of any of the powers, rights and privileges of civil court;

³[(ia) the procedure to be followed in compulsory registration of the citizens of India under sub-section (5) of section 14A;]

(j) the manner in which applications for revision may be made and the procedure to be followed by the Central Government in dealing with such applications; and

(k) any other matter which is to be, or may be, prescribed under this Act.

(3) In making any rule under this section, the Central Government may provide that breach thereof shall be punishable with fine which may extend to one thousand rupees:

⁴[Provided that any rule made in respect of a matter specified in clause (ia) of sub-section (2) may provide that a breach thereof shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five thousand rupees, or with both.]

⁵[(4) 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 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 6 of 2004, sec. 15 (w.e.f. 3-12-2004).

2. Ins. by Act 65 of 1985, sec. 3 (w.e.f. 7-12-1985).

3. Ins. by Act 65 of 1985, sec. 3 (w.e.f. 7-12-1985).

4. Ins. by Act 6 of 2004, sec. 15 (w.e.f. 3-12-2004).

5. Subs. by Act 4 of 1986, sec. 2 and Sch. (w.e.f. 15-5-1986).

Section 19. Repeals.

[Repealed by the Repealing and Amending Act, 1960 (Act 58 of 1960), sec. 2 and the First Schedule (w.ef 26-10-1960).]

Schedule

Schedule 1

Refer to Section 19.

Schedule 2

¹[***]

²[THE SECOND SCHEDULE

[See sections 5(2) and 6(2))

OATH OF ALLEGIANCE

I, A/B ………………..do solemnly affirm (or swear) that I will bear true faith and allegiance to the Constitution of India as by law established, and that I will faithfully observe the laws of India and fulfil my duties as a citizen of India.)

——————–

1. The First Schedule omitted by Act 6 of 2004, sec. 16 (w.e.f. 3-12-2004). (See Annexe)

2. Subs. by Act 6 of 2004, sec. 17, for the Second Schedule (w.e.f. 3-12-2004). (See Annexe)

Schedule 3

THE THIRD SCHEDULE

[See section 6 (1)]

QUALIFICATIONS FOR NATURALISATION

The qualifications for naturalisation of a person ¹[***] are-

(a) that he is not a subject or citizen of any country where citizens of India are prevented by law or practice of that country from becoming subjects or citizens of that country by naturalisation;

(b) that, if he is a citizen of any country, ²[he undertakes to renounce the citizenship of that country in the event of his application for Indian citizenship being accepted];

(c) that he has either resided in India or been in the service of a Government in India or partly the one and partly the other, throughout the period of twelve months immediately preceding the date of the application;

(d) that during the ³[fourteen years] immediately preceding the said period of twelve months, he has either resided in India or been in the service of a Government in India, or partly the one and partly the other, for periods amounting in the aggregate to not less than ⁴[eleven years];

(e) that he is of good character;

(f) that he has an adequate knowledge of a language specified in the Eighth Schedule to the Constitution; and

(g) that in the event of a certificate of naturalisation being granted to him, he intends to reside in India, or to enter into or continue in, service under a Government in India or under an international organisation of which India is
a member or under a society, company or body of persons established in India: Provided that the Central Government may, if in the special circumstances of any particular case it thinks fit,-

(i) allow a continuous period of twelve months ending not more than six months before the date of the application to be reckoned, for the pmposes of clause (c) above, as if it had immediately preceded that date;

(ii) allow periods of residence or service earlier than ⁵[fifteen years] before the date of the application to be reckoned in computing the aggregate mentioned in clause (d) above.

——————–

1. The words “who is not a citizen of a country specified in the First Schedule” omitted by Act 6 of 2004, sec. 18 (w.e.f. 3-12-2004).

2. Subs. by Act 6 of 2004, sec. 18, for “he has renounced the citizenship of that country in accordance with the law therein in force in that behalf and has notified such renunciation to the Central Government” (w.e.f. 3-12-2004).

3. Subs. by Act 6 of 2004, sec. 18, for “twelve years” (w.e.f. 3-12-2004).

4. Subs. by Act 6 of 2004, sec. 18, for “nine years” (w.e.f. 3-12-2004)

5. Subs. by Act 6 of 2004, sec. 18, for “thirteen years” (w.e.f. 3-12-2004).

¹[***]

——————-

1. Ins. by Act 6 of 2004, sec. 19 (w.e.f. 3-12-2004) and omitted by he Citizenship (Amendment) Act, 2005 sec. 5 (w.e.f. 28-6-2005).

Prior to ommission it stood as: “THE FOURTH SCHEDULE

[See section 2(1)(gg)]

1. Australia

2. Canada

3. Finland

4. France

5. Greece

6. Ireland

7. Israel

8. Italy

9. Netherlands

10. New Zealand

11. Portugal

12. Republic of Cyprus

13. Sweden

14. Switzerland

15. United Kingdom

16. United States of America.”

Explosives Act

November 30, 2014

Section 1. Short title.

(1) This Act may be called the Explosives Act, 1884; and Local extent.

(2) It extends to the whole of India.

Section 2. Commencement.

(1) This Act shall come into force on such day as the Central Government, by notification, in the Official Gazette appoints.

Section 3. Repeal of portions of Act 12 of 1875.

[Rep. by Art X of 1889.]

Section 4. Definitions.

In Act, unless the context otherwise requires, -

(a) “Aircraft” means any machine which can derive support in the atmosphere from the reaction of the air, other than the reactions of the air against the earth’s surface, and includes balloons, whether fixed or free, airships, kites, gliders and flying machines; I

(b) “Carriage” includes any carriage, wagon cart, truck, vehicle or other means of conveying goods or passengers by land, in whatever manner the same may be propelled;

(c) “District Magistrate” in relation to any area for which a Commissioner of Police has been appointed, means the Commissioner of Police thereof and includes-

(i) Any such Deputy Commissioner of Police, exercising jurisdiction over the whole or any part of such area, as may he specified by the State Government in this behalf in relation to such area or part; and

(ii) An additional District Magistrate;

(d) “Explosive” means gunpowder, nitroglycerine, ritroglycol, and gun cotton di-nitro-toluene, tri-nitro-toluene picric acid, di-nitro-phenol, tri-nitro-resorcinol (styphnic acid), cyclotrimethylene trinitramine, pentaerythritol-tetranitrate, totryl, nitro gannidine, lead azide, lead styphynate, fulminate of mercury or any other metal diazo-di-nitrophenol, coloured fires or any other substance whether a single chemical compound or a mixture of substances, whether solid or liquid or gaseous used or manufactured with a view to produce a practical effect by explosion or pyrotechnic effect; and includes fog signals, fireworks, fuses, rockets, percussion-caps, detonators, cartridges, ammunition of all description and every adaptation of preparation of an explosive as defined in this clause;

(e) “Export” means taking out of India to a place outside India by land, sea of air;

(f) “Import “ means to bring into India from a place outside India by land, sea of air;

(g) “Master”, -

(i) In relation to any vessel or aircraft means any person, other than a pilot harbour master, assistant harbour master or berthing master, having for the time being the charge or control of such vessel or aircraft, as the case may be; and

(ii) In relation to any boat belonging to a ship, means the master of that ship;

(h) “Manufacture” in relation to an explosive includes the process of-

(1) Dividing the explosive into its component parts or otherwise breaking up or unmaking the explosive, or making fit for use any damaged explosive, and

(2) Remaking, altering or repairing the explosive;

(i) “Prescribed” means prescribed by rules made under the Act;

(j) “Vessel” includes any ship, boat, sailing vessel, or other description of vessel used in navigation whether propelled by cars or otherwise and anything made for the conveyance, mainly by water, of human beings or of goods and a caisson.

Section 5. Power to make rules as to licensing of the manufacture, possession, use, sale, transport, import and export of explosives.

(1) The Central Government may for any part of India make rules consistent with this Act to regulate or prohibit, except under and in accordance with the conditions of a licence granted as provided by those rules, the manufacture, possession, sale, transport, import and export of explosives, or ally specified class of explosives,

(2) Rules under this section may provide for all or any of the following among other matters, that is to say, -

(a) The authority by which licences may be granted;

(b) The fees to be charged for licences, and the other sums (if any) to be paid for expenses by applicants for licences; (c) The manner in which applications for licences must be made, and the matters to be specified in such applications;

(d) The form in which, and the conditions on and subject to which, licences must be granted;

(e) The period for which licences are to remain in force;

(ee) The authority to which appeals may be preferred under Section 6-F, the procedure to be followed by such authority and the period within which appeals shall be preferred, the fees to be paid in respect of such appeals and the circumstances under which such fees may be refunded;

(ee-a) The total quantity of explosives that a licensee can purchase in a given period of time;

(ee-b) The fees to be charged by the Chief Controller of Explosives or any officer authorised by him in this behalf, for services rendered in connection with the manufacture, transport, import or export of explosives;

(f) The exemption absolutely or subject to conditions of any explosives or ally person or class of persons from the operation of the rules.

Section 5-A. Persons, already in business in respect of certain explosives to carry on such business without licence for a certain period.

Notwithstanding anything in Section 5 or in the rules made thereunder where, immediately before the commencement of the Indian Explosives (Amendment) Act, 1978, any person was carrying on the business or manufacture, sale, transport, import or export of any explosive for which no licence was required under this Act before its amendment by the Indian Explosives (Amendment) Act, 1978, then, such person shall be entitled to continue to carry on such business without licence in respect of such explosive-

(a) For a period of three months from the date of such commencement; or

(b) If before the expiry of the said period of three months, such person has made an application for grant of licence under this Act for such licences in such explosive, until the final disposal of his application, whichever is later.

Section 6. Power for Central Government to prohibit the manufacture, possession of importation of specially dangerous explosives.

(1) Notwithstanding anything in the rules under the last foregoing section, the Central Government may from time to time, by notification in the official Gazette,-

Prohibit, either absolutely or subject to conditions, the manufacture, possession or importation of any explosive which is of so dangerous a character that, in the opinion of the Central Government, it is expedient for the public safety to issue the notification.

(2) The officers of sea customs at every port shall have the same power in respect of any explosive with regard to the importation of which a notification has been issued under this section and the vessel containing the explosive, as they have for the time being in respect of any article, the importation of which is prohibited or regulated by the law relating to sea customs and the vessel containing the same, and the enactments for the time being in force relating to sea customs or any such article or vessel shall apply accordingly.

(3) Any person manufacturing, possessing or importing an explosive in contravention of a notification issued under this section shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both and in the case of importation by water, the owner and master of the vessel in which the explosive is imported shall, in the absence of reasonable excuse, each be punishable with fine which may extend to five thousand rupees.

Section 6A. Prohibition of manufacture, possession, sale, or transport of explosive by young persons and certain other persons.

Notwithstanding anything in the foregoing provisions of this Act,-

(a) No person, -

(i) Who has not completed the age of eighteen years, or

(ii) Who has been sentenced on conviction of any offence involving violence or moral turpitude for a term of not less than six months, at any time during a period of five years after the expiration of the sentence, or

(iii) Who has been ordered to execute under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974), a bond for keeping the peace or for good behaviour, at any time during the term of the bond, or

(iv) Whose licence under this Act has been cancelled, whether before or after the commencement of the Indian Explosives (Amendment) Act, 1978, for contravention of the provisions of this Act or of the rules made thereunder, at any time during a period of five years from the date of cancellation of such licence, Shall-

(1) Manufacture, sell, transport, import or export any explosive, or

(2) Possess any such explosive as the Central Government may, having regard to the nature thereof, by notification in the Official Gazette, specify;

(b) No person shall sell, deliver or despatch any explosive to a person whom he knows or has reason to believe fit the time of such sale, delivery or dispatch,-

(i) To be prohibited under clause (a) to manufacture, sell, transport, import, export or possess such explosive, or

(ii) To be of unsound mind.

Section 6-B. Grant of licences.

(1) Where a person makes an application for licence under Section 5, the authority prescribed in the rules made under that section for grant of ,licences (hereinafter referred to in this Act as the licensing authority), after making such inquiry, if any, as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing either grant the licence or refuse to grant the same,

(2) The licensing authority shall grant a licence-

(a) Where it is required for the purpose of manufacture of explosive if the licensing authority is satisfied that the person by whom licence is required-

(i) Possesses technical know-how and experience in the manufacture of explosives; or

(ii) Has in his employment or undertaken to employ a person or pencils, possessing such technical know, how and experience; or

(b) Where it is required for any other purpose, if the licensing authority is satisfied that the person by whom licence is required has a good reason for obtaining the same.

Section 6-C. Refusal of licences.

(1) Notwithstanding anything contained in Section 6-B the licensing authority shall refuse to grant a licence-

(a) Where such licence is required in respect of any prohibited explosive; or

(b) Where such licence is required by a person whom the licensing authority has reason to believe-

(i) To be prohibited by this Act or by any other law for the time being in force to manufacture, possess, sell, transport, import or export any explosive, or

(ii) To be of unsound mind, or

(iii) To be for any reason unfit for a licence under this Act; or

(c) Where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence. (2) Where the licensing authority refuses to grant a licence to any person, it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of opinion that it will not be in the public interest to furnish such statement.

Section 6-D . Licensing authority competent to impose conditions in addition to prescribed conditions.

A licence granted under Section 6-B may contain in addition to prescribed conditions such other conditions as may be considered necessary by the licensing authority in any particular case.

Section 6-E. Variation , suspension and revocation of licences.

(1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the holder of licence by notice in writing to deliver-up the licence to it within such time as may be specified in the notice.

(2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.

(3) The licensing authority may, by order in writing, suspend a licence for such period as it thinks fit or revoke a licence,-

(a) If the licensing authority is satisfied that the holder of the licence is prohibited by this Act or by other law for the time being in force to manufacture, possess, sell, transport, import or export any explosive, or is of unsound mind, or is for any reason unfit for a licence under this Act; or

(b) If the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or

(c) If the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for the licence; or

(d) If any of the conditions of the licence has been contravened; or

(e) If the holder of the licence has failed to comply with a notice under sub-section (I requiring him to deliver-up the licence.

(4) The licensing authority may also revoke a licence on the application of the holder- thereof.

(5) Where the licensing authority makes an order varying the conditions of a license under sub-section (1) or an order suspending or revoking a licence under sub-section(3) It shall record in writing the reasons therefor and furnish to the holder of the licence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.

(6) A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke a licence

Provided that if the conviction is set-aside on appeal or otherwise, the suspension or revocation shall become void.

(7) An order of suspension or revocation under sub-section (6) may also be made by an appellate court or by the High Court when exercising its powers of revision.

(8) The Central Government may, by order in the Official Gazette suspend or revoke, or direct any licensing authority to suspend or revoke, all or any licences granted wider this Act throughout India or any part thereof.

(9) On the suspension or revocation of a licence under this section, the holder thereof shall without delay surrender the licence to the authority by which it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation.

Section 6-F. Appeals.

(1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority suspending or evoking a licence may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed:

Provided that no appeal shall lie against an order made by, or under the direction of, the Central Government.

(2) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefor

Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period.

(3) The period prescribed for an appeal shall be computed in accordance with the provisions of the Limitation Act, 1963 (36 of 1963), with respect to the computation of periods of limitation thereunder.

(4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a brief statement of the reasons for the order appealed where such statement has been furnished to the appellant and by such fee as may be prescribed.

(5) In disposing of at) appeal the appellate authority shall follow such procedure as may be prescribed

Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of being heard.

6) The order appealed against shall, unless the appellate authority conditionally or unconditionally directs otherwise, be in force pending the disposal of the appeal against such order.

(7) Every order of the appellate authority confirming, modifying or reversing the order appealed against shall be final.

Section 7. Power to make rules conferring powers of inspection, search, seizure, detention’ and removal.

(1) The Central Government may make rules consistent with this Act authorising any officer either by name or in virtue of his office-

(a) To enter, inspect and examine any place, aircraft, carriage or vessel in which an explosive is being manufactured, possessed, used, sold, transported or imported under a licence granted under this Act, or in which he has reason to believe that an explosive has been or is manufactured, possessed, used, sold, transported, imported or exported, in contravention of this Act or of the rules made under this Act;

(b) To search for explosive therein;

(c) To take samples of any explosive found therein on payment of the value thereof; and ze, detain and remove any explosive or ingredient thereof found therein

(d) To seize and, if necessary, also destroy such explosive or ingredient.

(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches under that Code shall, so far as the same are applicable, apply to searches by officers authorized by rules this section.

Section 8. Notice of accidents.

(1) Whenever there occurs in or about, or in connection with, any place in which an explosive is manufactured, possessed or used, or any aircraft, carriage or vessel either conveying an explosive or on or from which an explosive is being loaded or unloaded, any accident by explosion or by fire attended with loss of human life or serious injury to person or property, or of a description usually attended with such loss or injury, the occupier of the place, or the master of the aircraft or vessel or the person in charge of the carriage, as the case may be, shall within such hire and in such manner as may be by rule prescribed, give notice thereof and of the attendant loss of human life or personal injury, if any, to the Chief Controller of Explosives in India and to the officer-in-charge of the nearest police station.

(2) 1[ * * * ]

1. Sub-section (2) omitted by Act No. 32 of 1978.

Section 9. Inquiry into accidents.

(1) Where any accident such as is referred to in Section 8 occurs in or about or in connection with any place, aircraft, carriage or vessel under the control of any of Armed forces of the Union an inquiry into the causes of the accident shall be held by the naval, military or air force authority concerned, and where any such accident occurs in any other circumstances, the District Magistrate shall, in cases attended by loss of human life, or may, in any other case, hold or direct a Magistrate subordinate to him to hold, such an inquiry.

(2) Any person holding an inquiry under this section shall have all the powers of Magistrate in holding an inquiry into an offence under the Code of Criminal Procedure, 1973(2 of 1974) and may exercise each of the powers conferred on any officer by rules under Section 7 as he may think it necessary or expedient to exercise for the purpose of the inquiry.

(3) The person holding an inquiry under this section shall make a report to the Central Government stating the causes of the accident and its circumstances.

(4) The Central Government may make rules-

(a) To regulate the procedure at inquires under this section;

(b) To enable the Chief Controller of Explosive in India to be present or represented at any such inquiry;

(c) To permit the Chief Controller of Explosives in India or his representative to examine any witnesses at the inquiry;

(d) To provide that where the Chief Controller of Explosives in India is not present or represented at any such inquiry, a report of the proceedings thereof shall be sent to him;

(e) To prescribe the manner in which and the time within which notices referred to in Section 8 shall be given.

Section 9-A. Inquiry into more serious accidents.

(1) The Central Government may, where it is of opinion, whether or not it has received the report of an inquiry under Section 9, that an inquiry of more formal character should be held into the causes of an accident such as is referred to in Section 8, appoint the Chief Controller of Explosives or any other competent person to hold such inquiry, and may also appoint one or more persons possessing legal or special knowledge to act as assessors in such inquiry.

(2) Where the Central Government orders in an inquiry under this Section, it may also direct that any inquiry under Section 9 pending at the time shall be discontinued.

(3) The person appointed to hold an inquiry under this section, shall have all the powers of Civil Court under the Code of Civil Procedure, 1908 (V of 1980), for the purpose of enforcing the attendance of witnesses and compelling the production of documents and material objects; and every person required by such person as aforesaid to furnish any information shall be deemed to be legally bound so to do within the meaning of Section 176 of the Indian Penal Code (XLV of 1860).

(4) Any person holding an inquiry under this section may exercise such of the powers conferred on any officer by rules under Section 7 as he may think it necessary or expedient to exercise for the purposes of the inquiry.

(5) The person holding an inquiry under this section shall make a report to the Central Government stating the causes of the accident and its circumstances, and adding any observations which he or any of the assessors may think fit to make; and the Central Government shall cause every report so made to be published at such time and in such manner as it may think fit.

(6) The Central Government may make rules for regulating the procedure at inquiries under this section.

Section 9-B. Punishment of certain offences.

(1) Whoever, in contravention of rules made under Section 5 or of the conditions of a licence granted under the said rules-

(a) Manufactures, imports or exports any explosive shall be punishable with imprisonment for a term, which may extend to three years, or with fine, which may extend to five thousand rupees, or with both;

b) Possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and

(c) In any other case, with fine which may extend to one thousand rupees.

(2) Whoever in contravention of a notification issued under Section 6, manufactures, possesses or imports any explosive shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both; and in the case of importation by water, the owner and master of the vessel or in the case of importation by air, the owner and the master of the aircraft, in which the explosive is imported shall, in the absence of reasonable excuse, each to be punishable with fine which may extend to five thousand rupees.

(3) Whoever, -

(a) Manufactures, sells, transports, imports, exports or possesses any explosive in contravention of the provisions of clause (a) of Section 6; or

(b) Sells, delivers or dispatches any explosive in contravention of the provisions of Clause (b) of that section, shall be punishable with imprisonment for ay extend to three years or with fine or with both; or

(c) In contravention of the provisions of section 8 fails to give notice of any accident shall be punishable-

(i) With fine which may extend to five hundred rupees, or

(ii) If the accident is attended by loss of human life, with imprisonment for a term, which may which, may extend to three months or fine or with both.

Section 9-C. Offences by companies.

(1) Whenever 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, or 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 against and punished accordingly be liable to be proceeded

Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without edge and that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation. -For the purposes of this section, -

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

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

Section 10. Forfeiture of explosives.

Where a person is convicted of an offence punishable under this Act, or the rules made under this Act, the court before which he is convicted may direct that the explosive, or ingredient of the explosive or the substance (if any) in respect of which the offence has been committed, or any part of that explosive, ingredient or substance, shall with the receptacles containing the same, be forfeited.

Section 11. Distress of aircraft or vessel.

Where the owner or master of any aircraft or vessel is adjudged under this Act to pay a fine for any offence committed with, or in relation to, that aircraft or vessel, the court may, in addition to any power it may have for the purpose of compelling payment of the fine, direct it to be levied by distress and sale of, -

(a) The aircraft and its furniture or so much of the furniture, or (a)

(b) The vessel and the tackle, apparel and furniture of such vessel or so much of the tackle, apparel and furniture thereof, as is necessary for the payment of the fine.

Section 12. Abetment and attempts.

Whoever abets, within the meaning of the Indian Penal Code (XLV of 1860), the commission of an offence punishable under this Act, or the rules made under this Act, or attempts to commit any such offence and in such attempt does any act towards the commission of the same, c ,hall be punished as if he had committed the offence.

Section 13. Power to arrest without warrant persons committing dangerous offences.

Whoever is found committing any act for which he is punishable under this Act, and which tends to cause explosion or fire in or about any place where an explosive is manufactured or stored, or any railway or port, or any carriage, aircraft or vessel may be apprehended without a warrant by a police officer or by the occupier of, or the agent or servant of, or other person authorised by the occupier of, that place or by any agent or servant of, or other person authorised by the Railway Administration or conservator of the port or officer in charge of the airport and be removed from the place where he is arrested and conveyed as soon as conveniently may be before a Magistrate.

Section 14. Saving and power to exempt.

(1) Nothing in this Act, except Sections 8, 9 and 9-A, shall apply to the manufacture, possession, use transport or importation of any explosive-

(a) By any of Armed Forces of the Union and Ordnance Factories or other establishment or such Forces in accordance with rules or regulations made by the Central Government.

(b) By any person employed under the Central Government or under a State Government in execution of this Act.

(2) The Central Government may, by notification in the official Gazette exempt, absolutely or subject to any such condition as it may think fit to impose, any explosive and any person or class of persons from all or any of the provisions of this Act or the rules made thereunder.

Section 15. Saving of Indian Arms Act, 1978.

Nothing under this Act shall affect the provisions of the Arms Act, 1959 (54 of 1959) :

Provided that all authority granting a licence under this Act for the manufacture, possession, sale, transport or importation of all explosive may, if empowered in this behalf by the rules under which the licence is granted, direct by an order in writing on the licence that it shall have the effect of a like licence granted under the said Indian Arms Act.

Section 16. Saving as to liability under other law.

Nothing in this Act or the rules under this Act shall prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Act or those rules, or from being liable under that other law to any other or higher punishment or penalty than that provided by this Act or those miles:

Provided that a person shall not be punished twice for the same offence.

Section 17. Extension of definition of “explosive” to other explosive substances.

The Central Government may, from time to time, by notification in the Official Gazette, declare that any substance which appears to the Central Government to be specially dangerous to life or property, by reason either of its explosive properties or of any process in the manufacture thereof being liable to explosion, shall be deemed to be an explosive within the meaning of this Act, and the provisions of this Act (subject to such exceptions, limitations and restrictions as may be specified in the, notification) shall accordingly extend to that substance in like manner as if it were included in the definition of the term “explosive” in this Act.

Section 17-A. Power to delegate.

The Central Government may, by notification in the Official Gazette, direct that any power to function which may be exercised or performed by it under this Act other than the power under Sections 5, 6, 6-A, 14 and 17 may, in relation to such matters and subject to such conditions, if any, as it may specify in the notification, be exercised Or performed also by-

(a) Such officer or authority subordinate to the Central Government, or

(b) Such State Government or such officer or authority subordinate to the state Government.

Section 18. Procedure for making publication and confirmation or rules.

(1) An authority making rules under this Act shall, before making the rule, publish a draft of the proposed information of persons likely to be affected thereby.

(2) The publication shall be made in such manner as the Central Government, from time to time, by notification in the Official Gazette, prescribes.

(3) There shall be published with the draft a notice specifying date at or after which (3) the draft will be taken into consideration.

(4) The authority making the rule, shall receive and consider any objection or suggestion, which may be made by any person with respect to the draft before the date so specified.

(5) A rule made under this Act shall not take effect until it has been published in the Official Gazette.

(6) The publication in the Official Gazette of a rule purporting to be made under this Act shall be conclusive evidence that it has been duly made, and, if it requires sanctions that, it has been duly sanctioned.

(7) All powers to make rules conferred by this Act may be exercised from time to time, as occasion requires.

(8) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under the rule.

Hindu Marriage Act

November 30, 2014

Section 1. Short title and extent

ACT NO. 25 OF 1955 1* [18th May, 1955.]

An Act to amend and codify the law relating to marriage among Hindus. BE it enacted by Parliament in the Sixth Year of the Republic of India as follows:-

(1) This Act may be called the Hindu Marriage Act, 1955.

(2) It extends to the whole of India except the State of Jammu and Kashmir ¹, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

——-

1. The Act has been made applicable to the State of Jammu and Kashmir by the J&K Hindu Marriage Act, 1955 (J&K Act 7 of 1955).

Section 2. Application of Act

(1) This Act applies -

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samam,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation.-The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding any thing contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

(3) The expression ‘Hindu’ in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

State Amendment

Pondicherry :

In section 2, insert the following sub-section:—

“(2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry .”

[ Vide Regn. 7 of 1963, sec. 2 and Sch. (w.e.f. 1-10-1963).]

Section 3. Definitions

In this Act, unless the context otherwise requires,-

(a) the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy; and

Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;

(b) “district court” means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act;

(c) “full blood” and “half blood”-two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives;

(d) “uterine blood”- two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands;

Explanation.-In clauses (c) and (d), “ancestor” includes the father and “ancestress” the mother;

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

(f) (i) “sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;

(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;

(g) “degrees of prohibited relationship”-two persons are said to be within the “degrees of prohibited relationship”-

(i) if one is a lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other ; or

(iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;

Explanation.-For the purposes of clauses (f) and (g), relationship includes-

(i) relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood and all terms of relationship in those clauses shall be construed accordingly.

Section 4. Over-riding effect of Act

Save as otherwise expressly provided in this Act,-

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.

Section 5. Conditions for a Hindu marriage

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:—

(i) neither party has a spouse living at the time of the marriage;

¹[(ii) at the time of the marriage, neither party—

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity ²[***];]

(iii) the bridegroom has completed the age of ³[twenty-one years] and the bride, the age of ⁴[eighteen years] at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

⁵[***]

———

1. Subs. by Act 68 of 1976, sec. 2, for clause (ii) (w.e.f. 27-5-1976).

2. The words “or epilepsy” omitted by Act 39 of 1999, sec. 2 (w.e.f. 29-12-1999).

3. Subs. by Act 2 of 1978, sec. 6 and Sch., for “eighteen years” (w.e.f. 1-10-1978).

4. Subs. by Act 2 of 1978, sec. 6 and Sch., for “fifteen years” (w.e.f. 1-10-1978).

5. Clause (vi) omitted by Act 2 of 1978, sec. 6 and Sch. (w.e.f. 1-10-1978).

Section 6. Guardianship in marriage

[Rep. by the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), sec. 6 and Sch. (w.e.f. 1-10-1978)].

Section 7. Ceremonies for a Hindu marriage

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

State Amendments

Section 7A

Pondicherry :

After section 7, insert the following section, namely:—

(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or

(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or

(c) by the tying of the thali.

(2) (a) Notwithstanding anything contained in section 7, but subject to the other provisions of this Act, all marriages to which the section applies solemnised after the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, shall be good and valid in law.

(b) Notwithstanding anything contained in section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, but subject to sub-section (3) all marriages to which this section applies solemnised at any time, before such commencement shall be deemed to have been, with effect on and from the date of the solemnisation of each such marriage, respectively, good and valid in law.

(3) Nothing contained in this section shall be deemed to—

(a) render valid any marriage referred to in clause (b) of sub-section (2), if before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967,—

(i) such marriage has been dissolved under any custom or law; or

(ii) the woman who was a party to such marriage has, whether during or after the life of the other party thereto, lawfully married another; or

(b) render invalid a marriage between any two Hindus solemnised at any time before such commencement, if such marriage was valid at that time; or

(c) render valid a marriage between any two Hindus solemnised at any time before such commencement, if such marriage was invalid at that time on any ground other than that it was not solemnised in accordance with the customary rites and ceremonies of either party thereto:

Provided that nothing contained in this sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement.

(4) Any child of the parties to a marriage referred to in clause (b) of sub-section (2) born of such marriage shall be deemed to be their legitimate child:

Provided that in a case falling under sub-clause (i) or sub-clause (ii) of clause (a) of sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said sub-clause (ii).”

[Vide Tamil Nadu Act 21 of 1967, sec. 2 (w.e.f. 20-1-1968).]

Section 8. Registration of Hindu marriages

(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.

(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.

(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.

(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.

Section 9. Restitution of conjugal rights.

¹[***] When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

²[ Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]

³[***]

———

1. The brackets and figure “(1)” omitted by Act 68 of 1976, sec. 3(a) (w.e.f. 27-5-1976).

2. Ins. by Act 68 of 1976, sec. 3(a) (w.e.f. 27-5-1976)

3. Sub-section (2) omitted by Act 68 of 1976, sec. 3(b) (w.e.f. 27-5-1976).

Section 10. Judicial separation

¹[(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

——–

1. Subs. by Act 68 of 1976, sec. 4, for sub-section (1) (w.e.f. 27-5-1976). Earlier sub-section (1) was amended by Act 72 of 1956, sec. 2 (w.e.f. 20-12-1956).

Section 11. Void marriages

Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto ¹[against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

——–

1. Ins. by Act 68 of 1976, sec. 5 (w.e.f. 27-5-1976).

Section 12. Voidable marriages

(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

(a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under section 5, the consent of such guardian was obtained by force or fraud; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-

(i) the petition is presented more than one year after for force had ceased to operate or, as the case may be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.

Section 13. Divorce

(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

1[(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]

1[(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

¹[(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

²[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation .—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has ³[***] been suffering from a virulent and incurable form of leprosy; or

(v) has ³[***] been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; ⁴[***]

⁵[ Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

⁶[***]

⁷[(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of ⁷[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of ⁷[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner:

Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or ⁸[bestiality; or]

⁹[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

¹⁰[(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]

Explanation. —This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)^*.]

State Amendment

Uttar Pradesh:

In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in section 13—

(i) in sub-section (1), after clause (i) insert (and shall be deemed always to have been inserted) the following clause, namely:—

“(1a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or”, and

(ii) for clause (viii) (since repealed in the principal Act) substitute (and shall be deemed to have been substituted) following clause, namely:—

“(viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and—

(a) a period of two years has elapsed since the passing of such decree, or

(b) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of other party; or

[Vide Uttar Pradesh Act 13 of 1962, sec. 2 (w.e.f. 7-11-1962)].

———–

1. Subs. by Act 68 of 1976, sec. 7(a)(i), for clause (i) (w.e.f. 27-5-1976).

2. Subs. by Act 68 of 1976, sec. 7(a)(ii), for clause (iii) (w.e.f. 27-5-1976).

3. Certain words omitted by Act 68 of 1976, sec. 7(a)(iii) (w.e.f. 27-5-1976).

4. The word “or” omitted by Act 44 of 1964, sec. 2(i)(a) (w.e.f. 20-12-1964).

5. Ins. by Act 68 of 1976, sec. 7(a)(iv) (w.e.f. 27-5-1976).

6. Clauses (viii) and (ix) omitted by Act 44 of 1964, sec. 2(i)(b) (w.e.f. 20-12-1964).

7. Ins. by Act 44 of 1964, sec. 2(ii) (w.e.f. 20-12-1964).

8. Subs. by Act 68 of 1976, sec. 7(b), for “two years” (w.e.f. 27-5-1976).

9. Subs. by Act 68 of 1976, sec. 7(c)(i), for “bestiality” (w.e.f. 27-5-1976).

10. Ins. by Act 68 of 1976, sec. 7(c)(ii) (w.e.f. 27-5-1976).

11. Ins. by Act 68 of 1976, sec. 7(c)(ii) (w.e.f. 27-5-1976).

* Date of commencement 27-5-1976.

Section 13A. Alternate relief in divorce proceedings

¹[13A. Alternate relief in divorce proceedings. —In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.]

——–

1. Ins. by Act 68 of 1976, sec. 8 (w.e.f. 27-5-1976).

Section 13B. Divorce by mutual consent

¹[13B. Divorce by mutual consent. —(1) Subject to the provisions of this Act

a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)^*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

——–

1. Ins. by Act 68 of 1976, sec. 8 (w.e.f. 27-5-1976).

* Date of commencement 27-5-1976.

Section 14. No petition for divorce to be presented within three years of marriage

(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, ¹[unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage:

Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented ²[before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the ³[expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the ⁴[expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the ⁵[expiration of one year] from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the ⁶[said one year].

———

1. Subs. by Act 68 of 1976, sec. 9(i)(a), for certain words (w.e.f. 27-5-1976).

2. Subs. by Act 68 of 1976, sec. 9(i)(b)(1), for “before three years have elapsed” (w.e.f. 27-5-1976).

3. Subs. by Act 68 of 1976, sec. 9(i)(b)(2), for “expiry of three years” (w.e.f. 27-5-1976).

4. Subs. by Act 68 of 1976, sec. 9(i)(b)(3), for “expiration of the said three years” (w.e.f. 27-5-1976).

5. Subs. by Act 68 of 1976, sec. 9(ii)(a), for “expiration of three years” (w.e.f. 27-5-1976).

6. Subs. by Act 68 of 1976, sec. 9(ii)(b), for “said three years” (w.e.f. 27-5-1976).

Section 15. Divorced persons when may marry again

When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again:

¹[***]

——–

1. Proviso omitted by Act 68 of 1976, sec. 10 (w.e.f. 27-5-1976).

Section 16. Legitimacy of children of void and voidable, marriages

¹ Legitimacy of children of void and voidable, marriages.- Where a decree of nullity is granted in respect of any marriage under section 11 or section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity :

Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

——–

1. Subs. by Act 68 of 1976, sec. 11, for section 16 (w.e.f. 27-5-1976).

* Date of commencement 27-5-1976.

Section 17. Punishment of bigamy

Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.

Section 18. Punishment for contravention of certain other conditions for a Hindu marriage

Every person who procures a marriage of himself or herself to be solemnised under this Act in contravention of the conditions specified in clauses (iii), (iv), ¹[and (v)] of section 5 shall be punishable—

²[(a) in the case of contravention of the condition specified in clause (iii) of section 5, with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both;]

(b) in the case of a contravention of the condition specified in clause (iv) or clause (v) of section 5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both; ³[***]

⁴[***]

———

1. Subs. by Act 2 of 1978, sec. 6 and Sch., for “(v) and (vi)” (w.e.f. 1-10-1978).

2. Subs. by Act 6 of 2007, sec. 20, for clause (a). Clause (a) before substitution, stood as under:

“(a) in the case of a contravention of the condition specified in clause (iii) of section 5, with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both;”.

3. The word “and” omitted by Act 2 of 1978, sec. 6 and Sch. (w.e.f. 1-10-1978).

4. Clause (c) omitted by Act 2 of 1978, sec. 6 and Sch. (w.e.f. 1-10-1978).

Section 19. Court to which petition should be made

¹[19. Court to which petition shall be presented. —Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction—

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

²[(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or]

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]

Jurisdiction of the Court

If a marriage is solemnised at a place within the municipal limit and the party reside there only, the family Court would have exclusive jurisdiction to deal with case. The case cannot be transferred to district court on a ground that the husband resides outside the limits of municipal corporation; Arjun Singhal v. Pushpa Karwel , AIR 2003 MP 189.

———

1.. Subs. by Act 68 of 1976, sec. 12, for section 19 (w.e.f. 27-5-1976).

2. Ins. by Act 50 of 2003, sec. 4 (w.e.f. 23-12-2003).

Section 20. Contents and verification of petitions.

(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded ¹[and, except in a petition under section 11, shall also state] that there is no collusion between the petitioner and the other party to the marriage.

(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.

———

1. Subs. by Act 68 of 1976, sec. 13, for “and shall also state” (w.e.f. 27-5-1976).

Section 21. Application of Act 5 of 1908

Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (5 of 1908).

Section 21A. Power to transfer petitions in certain cases

¹[21A. Power to transfer petitions in certain cases. —(1) Where—

(a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13; and

(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State, the petitions shall be dealt with as specified in sub-section (2).

(2) In a case where sub-section (1) applies,—

(a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court;

(b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.]

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1. Ins. by Act 68 of 1976, sec. 14 (w.e.f. 27-5-1976).

Section 21B. Special provision relating to trial and disposal of petitions under the Act

¹[21B. Special provision relating to trial and disposal of petitions under the Act. —(1) The trial of a petition under this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.

(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.]

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1. Ins. by Act 68 of 1976, sec. 14 (w.e.f. 27-5-1976).

Section 21C. Documentary evidence

¹[21C. Documentary evidence. —Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.]

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1. Ins. by Act 68 of 1976, sec. 14 (w.e.f. 27-5-1976).

Section 22. Proceedings may be in camera and may not be printed or published

(1) a proceeding under this Act shall be conducted in camera if either party so desires or if the court so thinks fit to do, and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except with the previous permission of the court.

(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees.

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1. Subs. by Act 68 of 1976, sec. 15, for section 22 (w.e.f. 27-5-1976).

Section 23. Decree in proceedings

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that—

(a) any of the grounds for granting relief exists and the petitioner ¹[except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified ²[***] in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

³[(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and]

(c)⁴[the petition (not being a petition presented under section 11)] is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:

⁵[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.]

⁶[(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.]

⁶[(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]

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1. Ins. by Act 68 of 1976, sec. 16(a)(i) (w.e.f. 27-5-1976).

2. The words “in clause (f) of sub-section (i) of section 10, or” omitted by Act 68 of 1976, sec. 16(a)(ii) (w.e.f. 27-5-1976).

3. Ins. by Act 68 of 1976, sec. 16(a)(iii) (w.e.f. 27-5-1976).

4. Subs. by Act 68 of 1976, sec. 16(a)(iv), for “the petition” (w.e.f. 27-5-1976).

5. Ins. by Act 68 of 1976, sec. 16(b) (w.e.f. 27-5-1976).

6. Ins. by Act 68 of 1976, sec. 16(c) (w.e.f. 27-5-1976).

Section 29. Repeals

(Rep. By the Repealing and Amending Act, 1960 (58 of 1960), sec. 2 and Sch.1).

Section 30. Savings

Nothing contained in this Act shall affect any adoption made before the commencement of this Act^*, and the validity and effect of any such adoption shall be determined as if this Act had not been passed.

Indian Evidence Act

November 30, 2014

Section 1. Short title, extent, and commencement

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

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

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

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

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

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

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

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

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

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

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

Section 3. Interpretation clause

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

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

“Fact”.—“Fact” means and includes—

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

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

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

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

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

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

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

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

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

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

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

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

A is accused of the murder of B.

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

That A caused B’s death;

That A intended to cause B’s death;

That A had received grave and sudden provocation from B;

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

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

Illustrations

A writing⁵ is a document;

Words printed, lithographed or photographed are documents;

A map or plan is a document;

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

A caricature is a document.

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

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

such statements are called oral evidence;

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

such documents are called documentary evidence.

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 4. “May presume”

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

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

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

Chapter II – Of the relevancy of facts

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

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

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

Illustrations

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

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

A’s beating B with the club;

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

A’s intention to cause B’s death.

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

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

Section 6. Relevancy of facts forming part of same transaction

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

Illustrations

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

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

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

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

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

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

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

Illustrations

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

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

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

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

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

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

Section 8. Motive preparation and previous or subsequent conduct

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

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

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

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

Illustrations

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

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

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

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

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

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

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

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

(e) A is accused of a crime.

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

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

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

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

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

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

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

(i) A is accused of a crime.

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

(j) The question is whether A was ravished.

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

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

(k) The question is whether A was robbed.

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

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

Section 9. Facts necessary to explain or introduce relevant facts

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

Illustrations

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

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

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

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

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

(c) A is accused of a crime.

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

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

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

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

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

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

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

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

Illustration

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

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

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

Section 11. When Facts not otherwise relevant become relevant

Facts not otherwise relevant, are relevant.

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

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

Illustrations

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

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

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

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

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

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

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

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

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

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

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

Illustrations

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

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

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

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

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

Illustration

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(p) A is tried for a crime.

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

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

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

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

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

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

Illustrations

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

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

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

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

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

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

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

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

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

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1.   Ins. by Act 3 of 1891, sec. 2.

Section 16. Existence of course of business when relevant -

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

Illustrations

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

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

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

Admissions

Section 17. Admission defined

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

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

Section 18. Admission by party to proceeding or his agent

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

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

Statements made by -

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

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

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

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

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

Illustration

A undertakes to collect rent for B.

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

A denies that rent was due from C to B.

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

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

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

Illustration

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

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

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

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

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

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

Illustrations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 23. Admission in Civil cases, when relevant

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

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

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

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

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

Section 25. Confession to police officer not to be proved

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Illustrations

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

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

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

Section 31. Admissions not conclusive proof but may stop

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

Statements by persons who cannot be called as witnesses

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

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

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

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

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

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

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

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

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

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

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

Illustrations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Provided -

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

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

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

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

Statements made under special circumstances

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

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

Illustration

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

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

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

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

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

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

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

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

Section 37 Notifications

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

⁴[***]

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

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

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

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

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

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

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

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

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

Judgments of courts of justice, when relevant

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

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

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

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

Such judgment, order or decree is conclusive proof -

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

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

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

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

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

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

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

Illustrations

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

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

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

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

Illustrations

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

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

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

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

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

The judgment against B is irrelevant as against C.

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

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

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

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

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

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

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

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

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

Opinion of third persons, when relevant

Section 45. Opinions of experts

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

Such person called experts.

Illustrations

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

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

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

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

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

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

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

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

Section 46. Facts bearing upon opinions of experts

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

Illustrations

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

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

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

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

Section 47. Opinions as to handwriting, when relevant

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

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

Illustrations

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

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

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

Section 47A. Opinion as to digital signature when relevant

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

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

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

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

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

Illustrations

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

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

When the Court has to form an opinion as to -

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

the constitution and government of any religious or charitable foundation,

or

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

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

Section 50. Opinion on relationship, when relevant

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

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

Illustrations

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

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

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

Section 51. Grounds of opinion when relevant

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

Illustration

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

Character when relevant

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

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

Section 53. In criminal cases, previous good character relevant

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

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

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

Section 54. Previous bad character not relevant except in reply

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

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

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

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

Section 55. Character as affecting damages

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

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

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

Part II – ON PROOF

Chapter III – Facts which need not be proved

Section 56. Fact judicially noticeable need not be proved

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

Section 57. Facts of which Court must take judicial notice

The Court shall take judicial notice of the following facts;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 58. Facts admitted need not be proved

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

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

Chapter IV – Of oral evidence

Section 59. Proof of facts by oral evidence

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

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

Section 60. Oral evidence must be direct

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

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

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

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

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

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

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

Chapter V – Of documentary evidence

Section 61. Proof of contents of documents

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

Section 62. Primary evidence

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

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

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

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

Illustration

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

Section 63. Secondary Evidence

Secondary evidence means and includes.

1. Certified copies given under the provisions hereinafter contained;

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

3. Copies made from or compared with the original;

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

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

Illustrations

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

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

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

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

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1. See section 76 infra.

Section 64. Proof of documents by primary evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 65B. Admissibility of electronic records

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(5) For the purposes of this section,—

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

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

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

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

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

Section 66. Rules as to notice to produce

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

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

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

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

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

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

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

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

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

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

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

Section 67A. Proof as to digital signature

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

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

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

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

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

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

Section 69. Proof where no attesting witness found

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

Section 70. Admission of execution by party to attested document

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

Section 71. Proof when attesting witness denies the execution

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

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

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

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

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

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

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

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

Section 73A. Proof as to verification of digital signature

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

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

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

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

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

Public Documents

Section 74. Public documents

The following documents are public documents :—

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

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

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

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

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

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

Section 75. Private documents

All other documents are private.

Section 76. Certified copies of Public Documents

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

Explanation

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

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

Section 77. Proof of documents by production of certified copies

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

Section 78. Proof of other official documents

The following public documents may be proved as follows -

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

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

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

(2) The proceedings of the Legislatures -

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

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

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

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

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

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

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

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

STATE AMENDMENT

West Bengal

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

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

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

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

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

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

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

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

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

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

Section 79. Presumption as to genuineness of certified copies

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 81A. Presumption as to Gazettes in electronic forms

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

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

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

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

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

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

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

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

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

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

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

Section 85. Presumption as to powers of attorney

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

———————–

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

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

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

Section 85A. Presumption as to electronic agreements

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

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

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

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

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

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

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

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

Section 85C. Presumption as to Digital Signature Certificates

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 87. Presumption as to Books, Maps and Charts

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

Section 88. Presumption as to Telegraphic Messages

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

Section 88A. Presumption as to electronic messages

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

Explanation

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

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

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

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

Section 90. Presumption as to documents thirty years old

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

Explanation

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

This Explanation applies also to section 81.

Illustrations

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

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

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

STATE AMENDMENTS

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

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

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

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

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

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

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

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

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

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

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

Explanation

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

This Explanation applies also to section 81A.

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

Chapter VI – Of the exclusion of oral by documentary evidence

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

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

Exception 1.

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

Exception 2.

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

Explanation 1.

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

Explanation 2.

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

Explanation 3.

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

Illustrations

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

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

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

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

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

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

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

Oral evidence is offered of the payment.

The evidence is admissible.

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

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

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

Section 92. Exclusion of evidence of oral agreement

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

Proviso (1)

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

Proviso (2)

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

Proviso (3)

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

Proviso (4)

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

Proviso (5)

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

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

Proviso (6)

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

Illustrations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Illustrations

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

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

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

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

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

Illustrations

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

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

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

Illustration

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

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

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

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

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

Illustrations

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

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

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

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

Illustration

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

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

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

Illustration

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

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

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

Illustration

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

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

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

Part III – PRODUCTION AND EFFECT OF EVIDENCE

Chapter VII – Of the burden of proof

Section 101. Burden of Proof

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

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

Illustration

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

A must prove that B has committed the crime.

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

A must prove the existence of those facts.

Section 102. On whom burden of proof lies.

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

Illustration

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

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

Therefore, the burden of proof is on A.

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

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

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

Therefore the burden of proof is on B.

Section 103. Burden of proof as to particular fact.

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

Illustration

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

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

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

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

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

Illustrations

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

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

A must prove that the document has been lost.

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

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

Illustrations

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

he did not know the nature of the act.

The burden of proof is on A.

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

The burden of proof is on A.

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

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

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

Section 106. Burden of proving fact specially within knowledge

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

Illustrations

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

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

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

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

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

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

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

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

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

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

Section 110. Burden of proof as to ownership

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

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

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

Illustrations

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

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

Section 111A. Presumption as to certain offences.

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

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

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

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

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

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

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

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

Section 112. Birth during marriage, conclusive proof of legitimacy

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

Section 113. Proof of cession of territory

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

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

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

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

Explanation

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

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

Section 113B. Presumption as to dowry death

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

Explanation

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

———————–

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

Section 114. Court may presume existence of certain facts

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

Illustration

The Court may presume -

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chapter VIII – Estoppel

Section 115. Estoppel

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

Illustration

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

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

Section 116. Estoppel of tenant and of license of person in possession -

No tenant of immovable property of person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and not person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person has a title to such possession at the time when such license was given.

Section 117. Estoppel of acceptor of bill of exchange, bailee or licensee

No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority of draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or license commenced, authority to make such bailment or grant such license.

Explanation (1)

The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.

Explanation (2)

If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor.

Chapter IX – Of witnesses

Section 118. Who may testify?

All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body and mind, or any other cause of the same kind.

Explanation

A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

Section 119. Dumb witnesses

1[“119. A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.”.]

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1. Inserted by Section 119 of “The Criminal Law (Amendment) Act, 2013″

Section 120.Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial

In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.

Section 121. Judges and Magistrates

No Judge or Magistrate shall, except upon the special order of some Court of which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to any thing which came to his knowledge in Court as such Judge or Magistrate but he may be examined as to other matters which occurred in his presence whilst he was so acting.

Illustrations

(a) A, on his trail before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer question as to this, except upon thee special order of a superior Court.

(b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B, cannot be asked what A said, except upon the special order of the superior Court.

(c) A is accused before the Court of Session of attempting to murder a police-officer whilst on his trail before B, a Session Judge. B may be examined as to what occurred.

Section 122. Communications during marriage

No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

Section 123. Evidence as to affairs of State

No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except wit the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

Section 124. Official communications

No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

Section 125. Information as to commission of offences

¹125. Information as to commission of offences.- No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.

Explanation

“Revenue officer” in this section means an officer employed in or about the business of any branch of the public revenue.

1. Subs. by Act 3 of 1887, sec. 1, for section 125.

Section 126. Professional communications

No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure—

(1) Any such communication made in furtherance of any ¹[illegal] purpose;

(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.

It is immaterial whether the attention of such barrister, ²[pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client.

Explanation

The obligation stated in this section continues after the employment has ceased.

Illustrations

(a) A, a client, says to B, an attorney—“I have committed forgery, and I wish you to defend me”.

As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.

(b) A, a client, says to B, an attorney—“I wish to obtain possession of property by the use of a forged deed on which I request you to sue”.

This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.

(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A’s account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.

This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.

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1. Subs. by Act 18 of 1872, sec. 10, for “criminal”.

2. Ins. by Act 18 of 1872, sec. 10.

Section 127. Section 126 to apply to interpreters etc.

The provisions of Section 126 apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.

Section 128. Privilege not waived by volunteering evidence

If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126, and if any party to a suit or proceeding calls any such barrister, ¹pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.

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1. Ins. by Act 18 of 1872, sec. 10.

Section 129. Confidential communication with Legal Advisers

No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness in which case he may be compelled to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has give, but not others.

Section 130. Production of title-deeds of witness, not a party

No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.

Section 131. Production of documents or electronic records which another person, having possession, could refuse to produce

¹131. Production of documents or electronic records which another person, having possession, could refuse to produce.- No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such last-mentioned person consents to their production.

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1. Subs. by Act 21 of 2000, sec. 92 and Sch. II, for section 131 (w.e.f. 17-10-2000).

Section 132. Witness not excused from answering on ground that answer will criminate

A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:

Provison

Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

Section 133. Accomplice

An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Section 134. Number of witness

No particular number of witness shall in any case be required for the proof of any fact.

Chapter X – Of the examination of witnesses

Section 135. Order of production and examination of witness

The order in which witness are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law, by the discretion of the Court.

Section 136. Judge to decide as to admissibility of evidence

When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking.

If the relevancy of the alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved or acquire evidence to be given of the second fact before evidence is given of the first fact.

Illustrations

(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32.

The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.

(b) It is proposed to prove, by a copy, the contents of a document said to be lost.

The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.

(c) A is accused of receiving stolen property knowing it to have been stolen.

It is proposed to prove that he denied the possession of the property.

The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.

(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

Section 137. Examination-in-chief

The examination of a witness, by the party who calls him, shall be called his examination-in-chief.

Cross-examination

The examination of a witness by the adverse party shall be called his cross-examination.

Re-examination

The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

138. Order of examinations

Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts but the cross-examination need not to be confined to the facts which the witness testified on his examination-in-chief.

Direction of re-examination

The re-examination shall be directed to the explanation of matters referred to in cross-examination, and if new matter by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

Section 139. Cross-examination of person called to produce a document

A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examination, unless and until he is called as a witness.

Section 140. Witness to character

Witnesses to character may be cross-examined and re-examined.

Section 141. Leading questions

Any questions suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

Section 142. When they must not be asked

Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in re-examination, except with the permission of the Court.

The Court shall permit leading questions as to matters which are introductory or undisputed or which have, in its opinion, been already sufficiently proved.

Section 143. When they must be asked

Leading questions may be asked in cross-examination.

Section 144. Evidence as to matters in writing

Any witness may be asked whilst under examination, whether any contract, grant or other disposition of property as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.Explanation – A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.

Illustration

The question is, whether A assaulted B.

C deposes that he heard A, say to D – “B wrote a letter accusing me of theft, and I will be revenged on him. “This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

Section 145. Cross-examination as to previous statements in writing

¹145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matter in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

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1. As to the application of section 145 to police-diaries, see the Code of Criminal Procedure, 1973 (2 of 1974), section 172.

Section 146. Questions lawful in cross-examination

1[“Provided that in a prosecution for an offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.”.]

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1. Inserted by Section 146 of “The Criminal Law (Amendment) Act, 2013″

Section 147. When witness to be compelled to answer

If any such question relates to a matter relevant to the suit or proceeding, the provisions of Section 132 shall apply thereto.

Section 148. Court to decide when question shall be asked and when witness compelled to answer

If any such question relates to matter not relevant to the suit or proceeding, except in so far it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion the Court shall have regard to the following considerations;

(1) Such questions are proper if they are of such nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.

(2) Such questions are proper if they are of such nature that he truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.

(3) Such questions are improper if there is a great disproportion between the importance of the imputations made against the witness’s character and the importance of his evidence.

(4) The court may if it sees fit, draw from the witness’s refusal to answer, the in ference that the answer if given would be unfavorable.

Section 149. Question not to be asked without reasonable grounds

No such question as is referred to in Section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.

Illustration

(a) A barrister is instructed by an attorney or vakil that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait.

(b) A pleader is informed by a person in court that an important witness is a dakait. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a dakait.

(c) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living gives unsatisfactory answer. This may be a reasonable ground for asking him if he is a dakait.

(d) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living gives unsatisfactory answer. This may be a reasonable ground for asking him if he is a dakait.

Section 150. Procedure of Court in case of question being asked without reasonable grounds

If the court is of opinion that any such question asked was without reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney report the circumstances of the case to the High court or other authority to which barrister, pleader, vakil or attorney is subject in the exercise of his profession.

Section 151. Indecent and scandalous questions

The Court may forbid any question or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court unless they relate to fact in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.

Section 152. Question intended to insult or annoy

The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.

Section 153. Exclusion of evidence to contradict answer to questions testing veracity

When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him, but if he answers falsely, he may afterwards be charged with giving false evidence.

Exception 1

If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.

Exception 2

- If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.

Illustrations

(a) A claim against an underwriter is resisted on the ground of fraud.

The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it.

Evidence is offered to show that he did make such a claim.

The evidence is inadmissible.

(b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it.

Evidence is offered to show that he was dismissed for dishonesty.

The evidence is not admissible.

(c) A affirms that on a certain day he saw B at Lahore.

A is asked whether he himself was not on that day at Calcutta. He denies it.

Evidence is offered to show that A was on that day at Calcutta.

The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore.

In each of these cases the witness might, if his denial was false, be charged with giving false evidence.

(d) A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence.

He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.

Section 154. Question by party of his own witness

¹[(1)] The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.

²[(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.]

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1. Section 154 renumbered as sub-section (1) thereof by Act 2 of 2006, sec. 9 (w.e.f. 16-4-2006).

2. Ins. by Act 2 of 2006, sec. 9 (w.e.f. 16-4-2006).

Section 155. Impeaching credit of witness

The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him:—

(1) By the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;

(2) By proof that the witness has been bribed, or has ¹[accepted] the offer of a bribe, or has received any other corrupt inducement to give his evidence;

(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

²[***]

Explanation

A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.

Illustrations

(a) A sues B for the price of goods sold and delivered to B.

C says that he delivered the goods to B.

Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B.

The evidence is admissible.

(b) A is indicted for the murder of B.

C says the B, when dying, declared that A had given B the wound of which he died.

Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence.

The evidence is admissible.

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1. Subs. by Act 18 of 1872, sec. 11, for “had”.

2. Clause (4) omitted by Act 4 of 2003, sec. 3 (w.r.e.f. 31-12-2002). Clause (a), before omission, stood as under:

“(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character”.”

Section 156. Questions tending to corroborate evidence of relevant fact, admissible

When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fat which he testifies.

Illustration

A, an accomplice, gives an account of robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.

Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

Section 157. Former statements of witness may be proved to corroborate later testimony as to same fact

In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

Section 158. What matters may be proved in connection with proved statement relevant under Section 32 or 33

Whenever any statement relevant under Section 32 or 33 is proved, all matters may be proved either in order to contradict or to corroborate, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.

Section 159. Refreshing memory.

A witness may, while under examination refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.

The witness may also refer to any such writing made by any other person and read by the witness within time aforesaid, if when he read it he knew it to be correct

When witness may use copy of document to refresh his memory -

Whenever a witness may refresh his ness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document.

Provided the Court be satisfied that there is sufficient reason for the non-production of the original.

An expert may refresh his memory by reference to professional treatises.

Section 160. Testimony to facts stated in document mentioned in Section 159

A witness may also testify to facts mentioned in any such document as is mentioned in Section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.

Illustration

A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.

Section 161. Right of adverse party as to writing used to refresh memory

¹161. Right of adverse party as to writing used to refresh memory.- Any writing referred to under the provisions of the two last preceding Sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness there upon.

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1. As the application of section 161 to Police-Diaries, see the Code of Criminal Procedure, 1973 (2 of 1974), section 172.

Section 162. Production of document

A witness summoned to produce a document shall, if it is in his possession or power, bring it to the Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.

The Court, if it sees, fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.

Translation of documents

If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence : and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1860).

Section 163. Giving, as evidence, of document called for and produced on notice

When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

Section 164. Using, as evidence, of document, production of which was refused on notice

When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.

Illustration

A sues B on an agreement and gives B notice to produce it. At the trail, A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.

Section 165. Judge’s power to put questions or order production

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, The Orient Tavern cross-examine any witness upon any answer given in reply to any such question.

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.

Provided also that this Section shall not authorize an Judge to compel any witness to answer any question or produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.

Section 166. Power of jury or assessors to put questions

In cases tried by jury or with assessors, the jury or assessors may put any question to the witnesses, through or by leave of the Judge, which the judge himself might put and which he considers proper.

Chapter XI – Of improper admission and rejection of evidence

Section 167. No new trail for improper admission or rejection of evidence

This improper admission or rejection of evidence shall not be ground of itself for a new trail or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.

THE SCHEDULE -

(Enactment Repealed.) Rep. by the Repealing Act, 1938 (I of 1938), Section 2 and Schedule.

Delhi Rent Control Act

November 30, 2014

Preamble

(59 of 1958)

[31st December, 1958]

An Act to provide for the control of rents and evictions and of rates of hotels and lodging houses, and for the lease of vacant premises to Government, in certain areas in the Union territory of Delhi.

Be it enacted by Parliament in the Ninth Year of the Republic of India as follows:-

Introduction

Most of the persons living in urban areas are somehow directly or indirectly affected by the law of rent control which is provincial in nature and it differs from State to State, The law which was applicable to Delhi was Delhi and Ajmer Rent Control Act, 1952 (38 of 1952). During the course of its applicability many difficulties were being faced and it was considered necessary to enact a comprehensive law for Delhi. In order to achieve this objective the Delhi Rent Control Bill was introduced in the Parliament.

Act 59 of 1958

The Delhi Rent Control Bill having been passed by both the Houses of Parliament received the assent of the President on 31st December, 1958. It came into force on 9th February, 1959 as THE DELHI RENT CONTROL ACT, 1958 (59 of 1958).

List of Amending Acts

1. The Repealing and Amending Act, 1960 (58 of 1960).

2. The Delhi Rent Control (Amendment) Act, 1963 (4 of 1963).

3. The Delhi Rent Control (Amendment) Act, 1976 (18 of 1976).

4. The Delhi Rent Control (Amendment) Act, 1984 (37 of 1984).

5. The Delhi Rent Control (Amendment) Act, 1988 (57 of 1988).

Chapter I – Preliminary

Section 1. Short title, extent and commencement .

(1) This Act may be called the Delhi Rent Control Act, 1958.

(2) It extends to the areas included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the First Schedule:

Provided that the Central Government; may, by notification in the Official Gazette, extend this Act or any provision thereof, to any other urban area included within the limits of the Municipal Corporation of Delhi of exclude any are from the operation of this Act or any provision thereof.

(3) It shall come into force on such date (Note: Came into force on 9-2-1959, vide S.O. 269, dated 31st January, 1959, published in the Gazette of India, Pt. II, Sec.3 (ii), p.331) as the Central Government may, by notification in the Official Gazette, appoint. 

Section 2. Definitions.

In this Act, unless the context otherwise requires-

(a) “Basic rent”, in relation to premises let out before the 2nd day of June, 1944, means the basic rent of such premises as determined in accordance with the provisions of the Second Schedule;

(b) “Controller” means a Controller appointed under sub-section (1) of section 35 and includes an additional Controller appointed under sub-section (2) of that section;

(c) “Fair rate” means the fair rate fixed under section 31 and includes the rate as revised under section 32;

(d) “Hotel or lodging house” means a building or part of a building where lodging with or without board or other services is provided for a monetary consideration;

(e) “Landlord” means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent ro be entitled to receive the rent, if the premises were let to a tenant;

(f) “Lawful increase” means an increase in rent permitted under the provisions of this Act;

(g) “Manager of a hotel” includes any person in charge of the management of the hotel;

(h) “Owner of a lodging house” means a person who receives or is entitled to receive whether on this own account or on behalf of himself and others or as an agent or a trustee for any other person, any monetary consideration from any person on account of board, and lodging or other services provided in the lodging house;

(i) “premises” means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose, and includes.-

(i) the garden, grounds and outhouses, if any, appertaining to such building or part of the building;

(ii) any furniture supplied by the landlord for use in such building or par of the building; but does not include a room in a hotel or lodging house;

(j) “prescribed” means prescribed by rules made under this Act;

(k) “standard rent”, in relation to any premises, means the standard rent referred to in section 6 or where the standard rent has been increased under section 7, such increased rent;

[(l) (Note: Subs. by Act 18 of 1976, sec.2, for clause (1) (w.e.f. 1-12-1975)) “tenant” means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes-

(i) a sub-tenant;

(ii) any person continuing in possession after the termination of his tenancy; and

(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and to this clause, such of the aforesaid person’s-

(a) spouse,

(b) son or daughter, or, where there are both son and daughter, both of them,

(c ) parents,

(d) daughter-in-law, being the widow of his pre-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include,-

(A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re-opened under the proviso of section 3 of the Delhi Rent Control (Amendment) Act, 1976 (18 of 1976);

(B) any person to whom a licence, as defined by section 52 of the Indian Easements Act, 1882 (5 of 1882), has been granted.

Explanation1.- The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:-

(a) firstly, his surviving spouse;

(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death;

(c ) thirdly, his parents, if there is no surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death; and

(d) fourthly, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death.

Explanation II.- If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.

Explanation III.-For the removal of doubts, it is hereby declared that, -

(a) where, by reason of Explanation II, the right of any successor to continue in possession after the termination of the tenancy becomes extinguished, such extinguished shall not affect the right of any other succession of the same category to continue in possession after the termination of the tenancy; but if there is no other successor of the same category, the right to continue in possession after the termination of the tenancy shall not, on such extinguishments, pass on to any other successor, specified in any lower category or categories, as the case may be;

(b) the right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, develop on any of his heirs];

(m). “urban area” has the same meaning as in the Delhi Municipal Corporation Act, 1957 (66 of 1957).

Section 3. Act not to apply to certain premises.

Nothing in this Act shall apply -

(a) To any premises belonging to the Government; (Note: The word “or” omitted by Act 57 of 1988, sec.2 (w.e.f. 1-12-1988).

(b) To any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned, by the Government:

[(Note: Added by Act 4 of 1963, sec.2 (with retrospective effect) Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, notwithstanding any judgment, decree or order of any court or other authority, the provisions of this Act shall apply to such tenancy;]

[(c) (Note: Ins. by Act 37 of 1988, sec.2 (w.e.f. 1-12-1988) To any premises, whether residential or not, whose monthly rent exceeds there thousand and five hundred rupees; or

(d) To any premises constructed on or after the commencement of the Delhi Rent Control (Amendment) Act, 1988, for a period of ten years from the date of completion of such construction;]

Chapter II – Provisions Regarding Rent

Section 4. Rent in excess of standard rent not recoverable.

(1) Except where rent is liable to periodical increase by virtue of an agreement entered into before the 1st day of January, 1939, no tenant shall, notwithstanding any agreement to the contrary, be liable to pay to his landlord for the occupation of any premises any amount in excess of the standard rent of the premises, unless such amount is a lawful increase of the standard rent in accordance with the provisions of this Act.

(2) Subject to the provision of sub-section (1) any agreement for the payment of rent in excess of the standard rent shall be construed as if it were an agreement for the payment of the standard rent only.

Section 5. Unlawful changes not to be claimed or received.

(1) Subject to the provisions of this Act, no person shall claim or receive any rent in excess of the standard rent, notwithstanding any agreement to the contrary.

(2) No person shall, in consideration of the grant, renewal or continuance of a tenancy or sub-tenancy or sub-tenancy of any premises,-

(a) Claim or receive the payment of any sum as premium or pugree of claim or receive any consideration whatsoever, in cash or in kind, in addition to the rent; or

(b) Except with the previous permission of the Controller, claim or receive the payment of any sum exceeding one month’s rent of such premises as rent in advance.

(3) It shall not be lawful for the tenant or any other person acting or purporting to act on behalf of the tenant or a sub-tenant to claim or receive any payment in consideration of the relinquishment, transfer or assignment of his tenancy or sub-tenancy, as the case may be, of any premises.

(4) Nothing in this section shall apply-

(a) To any payment made in pursuance of an agreement entered into before the 1st day of January, 1939; or

(b) To any payment made under an agreement by any person to a landlord for the purpose of financing the construction of the whole or part of any premises on the land belonging to taken on lease by, the landlord, if one of the conditions of the agreement is that the landlord is to let to that person the whole or part of the premises when completed for the use of that person or any member of his family:

Provided that such payment does not exceed the amount of agreed rent for a period of five years of the whole or part of the premises to be let to such person.

Explanation. – For the purpose of clause (b) of this sub-section, “member of the family” of a person means, in the case of an undivided Hindu Family, any member of the family of that person and in the case of any other family, the husband, wife, son, daughter , father, mother, brother, sister or any other relative dependent on that person.

Section 6. Standard rent.

(1) Subject to the provisions of sub-section (2), “standard rent”, in relation to any premises means -

(A) In the case of residential premises-

(1) Where such premises have been let out at any time before the 2nd day of June,1944,-

(a) If the basic rent of such premises per annum does not exceed six hundred rupees, the basic rent; or

(b) If the basic rent of such premises per annum exceeds six hundred rupees, the basic rent together with ten per cent, of such basic rent;

(2) Where such premises have been let out at any time on or after the 2nd day of June, 1994,-

(a) In any case where the rent of such premises has been fixed under the Delhi and Ajmer- Merwara Rent Control Act, 1947 (19 of 1947), or the Delhi and Ajmer Rent Control Act, 1952 (37 of 1952),-

(i) If such rent per annum does not exceed twelve hundred rupees, the rent so fixed; or

(ii) If such rent per annum exceeds twelve hundred rupees, rent so fixed together with ten per cent. of such rent;

(b) In any other case, the rent calculated on the basis of [(Note: Subs. by Act 57 of 1988, sec.3, for “seven and one-half per cent.” (w.e.f. 1-12-1988) ten per cent]. per annum of the aggregate amount of the [(Note: Subs. by Act 57 of 1988, sec.3, for “reasonable” (w.e.f. 1-12-1988) actual] cost of construction and the market price of the land comprised in the premises on the date of the commencement of the construction :

(Note: Proviso omitted by Act 57 of 1988, sec.3 (w.e.f. 1-12-1988)

(B) In the case of premises other than residential premises-

(1) Where the premises have been let out at any time before the 2nd day of June, 1944, the basic rent of such premises together with ten per cent. of such basic rent:

Provided that where the rent so calculated exceeds twelve hundred rupees per annum, this clause shall have effect as if for the words “ten per cent.”, the words “fifteen per cent.” had been substituted;

(2) Where the premises have been let out at any time on or after the 2nd day of June, 1944,-

(a) In any case where the rent of such premises has been fixed under the Delhi and Ajmer-Merwara Rent Control Act, 1947 (19 of 1947) or the Delhi and Ajmer Rent Control Act, 1952 (38 of 1952),-

(i) If such rent per annum does not exceed twelve hundred rupees, the rent so fixed; or

(ii) If such rent per annum exceeds twelve hundred rupees, the rent so fixed together with fifteen per cent. of such rent;

(b) In any other case, the rent calculated on the basis of [(Note: Subs. by Act 57 of 1988, sec.3, for “seven and one-half per cent” (w.e.f. 1-12-1988) ten per cent] per annum of the aggregate amount of the [(Note: Subs. by Act 57 of 1988, sec.3, for “reasonable” (w.e.f. 1-12-1988) actual] cost of construction and the market price of the land comprised in the premises on the date of the commencement of the construction:

(Note: Proviso omitted by Act 57 of 1988, sec.3 (w.e.f. 1-12-1988)

(2) Notwithstanding anything contained in sub-section (1),-

(a) In the case of any premises, whether residential or not, constructed on or after the 2nd day of June, 1951, but before the 9th day of June, 1955, the annual rent calculated with reference to the rent at which the premises were let for the month of March, 1958, or if they were not so let, with reference, to the rent at which they were last let out, shall be deemed to be standard rent for a period of seven years from the date of the completion of the construction of such premises; (Note: The word “and” omitted by Act 57 of 1988, sec.3 (w.e.f. 1-12-1988)

(b) In the case of any premises, whether residential or no, constructed on or after the 9th day of June, 1955, including premises constructed after the commencement of this Act [(Note: Ins. by Act 57 of 1988, sec.3 (w.e.f. 1-12-1988) but before the commencement of the Delhi Rent Control (Amendment) Act, 1988], the annual rent calculated with reference to the rent agreed upon between the landlord and the tenant when such premises were first let out shall be deemed to be the standard rent for a period of five years from the date of such letting out.

[(c) (Note: Ins. by Act 57 of 1988, sec.3 (w.e.f. 1-12-1988) In the case of any premises, whether residential or not, constructed on or after the commencement of the Delhi Rent Control (Amendment) Act, 1988 and to which the provisions of this Act are made applicable by virtue of clauses

(d) of section 3, the rent calculated on the basis of ten per cent, per annum of the aggregate amount of the actual cost of construction of the premises and the market price of the land comprised in the premises on the date of commencement of the construction, of the premises shall be deemed to be the standard rent]

(3) For the purpose of this section, residential premises include premises let out for the purpose of a public hospital, an educational institution, a public library, reading room or an orphanage.

Section 6A. Revision of rent.

Notwithstanding anything contained in this Act, the standard rent, or, where no standard rent is fixed under the provisions of this Act in respect of any premises, the rent agreed upon between the landlord and the tenant, may be increased by ten per cent. every three years.

Section 7. Lawful increase of standard rent in certain cases and recovery of other charges.

(1) Where a landlord has at any time, before the commencement of this Act with or without the approval of the tenant or after the commencement of this Act with the written approval of the tenant or of the Controller, incurred expenditure for any improvement, addition or structural alteration in the premises, not being expenditure on decoration or tenantable repairs necessary or usual for such premises, and the cost of the improvement, addition or alteration has not been taken into account in determining the rent of the premises, the landlord may lawfully increase the standard rent per year by an amount not exceeding [(Subs. by Act 57 of 1988, sec.3, for “seven and one-half per cent.” (w.e.f. 1-12-1988) ten per cent.] of such cost.

(2) Where a landlord pays in respect of the premises any charge for electricity or water consumed in the premises or any other charge levied by a local authority having jurisdiction in the area which is ordinarily payable by the tenant, he may recover from the tenant the amount so paid by him; but the landlord shall not recover from the tenant whether by means of an increase in rent or otherwise the amount of any tax on building or land imposed in respect of the premises occupied by the tenant:

Provided that nothing in this sub-section shall affect the liability of any tenant under an agreement entered into before the 1st of January 1952, whether express or implied, to pay from time to time the amount of any such tax as aforesaid.

Section 8. Notice of increase of rent.

(1) Where a landlord wishes to increase the rent of any premises, he shall give the tenant notice of his intention to make the increase and in so far as such increase is lawful under this Act, it shall be due and recoverable only in respect of the period of the tenancy after the expiry of thirty days from the date on which the notice is given.

(2) Every notice under sub-section (1) shall be in writing signed by or on behalf of the landlord and given in the manner provided in section 106 of the Transfer of Property Act, 1982 (4 of 1882).

Section 9. Controller to fix standard rent, etc.

(1) The Controller shall, on an application made to him in this behalf, either by the landlord or by the tenant, in the prescribed manner, fix in respect of any premises-

(i) The standard rent referred to in section 6; or

(ii) The increase, if any, referred to in section7.

(2) In fixing the standard rent of any premises of the lawful increase thereof, the Controller shall fix an amount which appears to him to be reasonable having regard to the provisions of section 6 or section 7 and the circumstances of the case:

[(Note: Ins. by Act 57 of 1988, sec.6 (w.e.f. 1-12-1988) Provided that in working out the cost of construction of any premises or the market price of the land comprised in such premises for the purpose of section 6, or the cost of improvement, addition or alteration referred to in section 7, the Controller may take the assistance of any valuer approved by the Central Government in accordance with such rules as may be prescribed and the assessment shall be made by such valuer in the manner prescribed.]

(3) In fixing the standard rent of any premises part of which has been lawfully sub-let, the Controller may also fix the standard rent of the part sub-let.

(4) Where for any reason it is not possible to determine the standard rent of any premises on the principles set forth under section 6, the Controller may fix such rent as would be reasonable having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality, having regard also to the standard rent payable in respect of such premises.

(5) The standard rent shall in all cases be fixed for a tenancy of twelve months:

Provided that where any premises are let or re-let for a period of less than twelve months, the standard rent for such tenancy shall bear the same proportion to the annual standard rent as the period of tenancy bears to twelve months.

(6) In fixing the standard rent of any premises under this section, the Controller shall fix the standard rent thereof in an unfurnished state and may also determine an additional charge to be payable on account of any fittings or furniture supplied by the landlord and it shall be lawful for the landlord to recover such additional charge from the tenant.

(7) In fixing the standard rent of any premises under this section, the Controller shall specify a date from which the standard rent so fixed shall be deemed to have effect:

Provided that in no case the date so specified shall be earlier than one year prior of the date of the filing of the application for the fixation of the standard rent.

Section 10. Fixation of interim rent.

If an application for fixing the standard rent or for determining the lawful increase of such rent is made under section 9, the Controller shall, as expeditiously as possible, make an order specifying the amount of the rent or the lawful increase to be paid by the tenant to the landlord pending final decision on the application and shall appoint the date from which the rent or lawful increase so specified shall be deemed to have effect.

Section 11. Limitation of liability of middlemen.

No collector of rent or middleman shall be liable to pay to his principal, in respect of any premises, any sum by way of rental charges which exceeds, the amount which he is entitled under this Act to realize from the tenant or tenants of the premises.

Section 12. Limitation for application for fixation of standard rent.

Any landlord or tenant may file an application to the Controller for fixing the standard rent of the premises or for determining the lawful increase of such rent,-

(a) In the case of any premises which were let , or in which the cause of action for lawful increase of rent arose, before the commencement of this Act, within two years from such commencement;

(b) In the case of any premises let after the commencement of this Act [but before the commencement of the Delhi Rent Control (Amendment) Act, 1988],-

(i) Where the application is made by the landlord, within two years from the date on which the premises were let to the tenant against whom the application is made;

(ii) Where the application is made by the tenant, within two years from the date on which the premises were let to that tenant; [(Note: Clause (d) has been inserted by Act 57 of 1988, sec.7. As a result of this insertion the word “and” of the end of sub-clause (ii) of clause (b) ought to have been omitted and added at the end of clause (c), which has not been done by Act 57 of 1988. The irregularity has set right. (Ed.)) and]

(c) In the case of any premises in which the cause of action of lawful increase of rent arises after the commencement of this Act, within two years from the date on which the cause of action arises, [(Note: Clause (d) has been inserted by Act 57 of 1988, sec.7. As a result of this insertion the word “and” of the end of sub-clause (ii) of clause (b) ought to have been omitted and added at the end of clause (c), which has not been done by Act 57 of 1988. The irregularity has set right. (Ed.)) and]

[(d) (Note: Ins. by Act 57 of 1988, sec.7 (w.e.f. 1-12-1988) In the case of any premises referred to in clause © of sub-section (2) of section 6, within two years from the date of such application;]

Provided that the Controller may entertain the application after the expiry of the said period of two years, if he is satisfied that the applicant was prevented by sufficient cause from filing the application in time.

Section 13. Refund of rent, premium, etc., not recoverable under the Act.

Where any sum or other consideration has been paid , whether before or after the commencement of this Act, by or on behalf of a tenant to a landlord , in contravention of any of the provisions of this Act or of the Delhi and Ajmer Rent Control Act, 1952 (38 of 1952), the Controller may, on an application made to him within a period of one year from the date of such payment, order the landlord to refund such sum or the value of such consideration to the tenant or order adjustment of such sum or the value of such consideration against the rent payable by the tenant.

Chapter III – Control of Eviction of Tenants

Section 14. Protection of tenant against eviction.

(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenet:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-

(a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a landlord in the manner provided in section 106 of the Transfers of

Property Act, 1882 (4 of 1882);

(b) That the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise without obtaining the consent in writing of the landlord;

(c) That the tenant has used the premises for purpose other than that for which they were let-

(i) If the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord; or

(ii) If the premises have been let before the said date without obtaining his corisent;

(d) That the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing of the application for the recovery of possession thereof;

(e) That the premises let for residential purpose are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof , or for any person for whose benefit the premises are held and the landlord or such person has no other reasonably suitable residential accommodation;

Explanation.- For the purpose of this clause, “premises let for residential purpose” include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes;

(f) That the premises have become unsafe or unfit for human habitation and are required bona fide by the landlord for carrying out repairs which cannot be carried out without the premises being vacated;

(g) That the premises are required bona fide by the landlord for the purpose building or re-building or making thereto any substantial additions or alterations and that such building or re-building or addition or alteration cannot be carried out without the premises being vacated;

(h) That the tenant has, whether before or after the commencement of this Act, (Note: The word “built” omitted by Act 57 of 1988, sec.8 (w.e.f. 1-12-1988)) acquired vacant possession of, or been allotted, a residence;

[(hh) (Note: Ins. by Act 57 of 1988, sec.8 (w.e.f. 1-12-1988)) That the tenant has, after the commencement of the Delhi Rent Control (Amendment) Act, 1988, built a residence and ten years have elapsed there-after;]

(i) That the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment;

(j) That the tenant has, whether before or after the commencement of this Act, caused or permitted to be caused substantial damage to the premises;

(k) That the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate;

(i) That the landlord requires the premises in order to carry out any building work at the instance of the Government or the Delhi Development Authority or the Municipal Corporation of Delhi in pursuance of any improvement scheme or development scheme and that such building work cannot be carried out without the premises being vacated.

(2) No order for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1) if the tenant makes payment or deposit as required by section 15:

Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months.

(3) No order for the recovery of possession in any proceeding under sub-section (1) shall be binding on any sub-tenant referred to in section 17 who has given notice of his sub-tenancy to the landlord under the provisions of that section, unless the sub-tenant is made a party to the proceeding and the order for eviction is made binding on him.

(4) For the purpose of clause (b) of the proviso to sub-section (1), any premises which have been let for being used for the purpose of business or profession shall be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to the person.

(5) No application for the recovery of possession of any premises shall lie under sub-section (1) on the ground specified in clause (c ) of the proviso thereto, unless the landlord has given to the tenant a notice in the prescribed manner requiring him to stop the misuse of the premises and the tenant has refused or failed to comply with such requirement within one month of the date of service of the notice; and no order for eviction against the tenant shall be made in such a case, unless the Controller is satisfied that the misuse of the premises is of such a nature that it is a public nuisance or that it causes damage to the premises or is otherwise detrimental to the interest of the landlord.

(6) Where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall lie under sub-section (1), on the ground specified in clause (e ) of the proviso thereto, unless a period of five years have elapsed from the date of the acquisition.

(7) Where an order for the recovery of possession of any premises is made on the ground specified in clause(c ) of the proviso to sub-section (1), the landlord shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of the order.

(8) No order for the recovery or possession of any premises shall be made on the ground specified in clause (g) of the proviso to sub-section (1), unless the Controller is satisfied that the proposed reconstruction will not radically after the purpose for which the premises were let or such ramidically alteration is in the public interest, and that the plans and estimates of such reconstruction have been properly prepared and that necessary fund for the purpose are available with the landlord.

(9) No order for the recovery of possession of any premises shall be made on the ground specified in clause (I) of the proviso to sub-section (1), if the Controller is of opinion that there is any bona fide dispute as to whether the tenant has ceased to be in the service or employment of the landlord.

(10) No order for the recovery of possession of any premises shall be made on the ground specified in clause ,(i) of the proviso to sub-second (1) if the tenant, within such time as may be specified in this behalf by the Controller, carries out repairs to the damage caused to the satisfaction of the Controller or pays to the landlord such amount by way of compensation as the Controller may direct .

(11) No order for the recovery of possession of any premises shall be made on the ground specified in clause(k) of the proviso of sub-section (1), if the tenant, within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.

Section 14A. Right to recover immediate possession of premises to accrue to certain persons.

(1) Where a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required, by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order, to such landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him:

Provided that nothing in this section shall be construed as conferring a right on a landlord owning, in the Union territory of Delhi, two or more dwelling houses whether in his own name or in the name of his wife or dependent child to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which hi intends to recover.

(2) Notwithstanding anything contained elsewhere in this Act or in any there law for the time being in force or in any contract, custom or usage to the contrary, where the landlord exercises the right of recovery conferred on him by sub-section (1), no compensation shall be payable by him to the tenant or any person claiming through or under him and no claim for such compensation shall be entertained by any court, tribunal or other authority:

Provided that where the landlord had received,-

(a) any rent in advance from the tenant, he shall, within a period of ninety days from the date of recovery of possession of the premises by him, refund to the tenant such amount as represents the rent payable for the unexpired portion of the contract, agreement or lease;

(b) any other payment, he shall, within the period aforesaid, refund to the tenant a sum which shall bear the same proportion to the total amount received as the unexpired portion of the contract or agreement, or lease bears to the total period of contract or agreement or lease:

Provided further that, if any default is made in making any refund as aforesaid, the landlord shall be liable to pay simple interest at the rate of six per cent. per annum on the amount which he has omitted or failed to refund

Section 14B. Right to recover immediate possession of premises to accrue to members of the armed forces, etc.

(1) Where the landlord-

(a) is a released or retired person from any armed forces and the premises let out by him are required for his own residence; or

(b) is a dependent of a member of any armed forces who had been killed in action and the premises let out by such member are required for the residence of the family of such member, such person or, as the case may be, the dependant may, within one year from the date of his release or retirement from such armed forces or, as the case may be, the date of death of such member, or within a period of one year from the date of commencement of the Delhi Rent Control (Amendment) Act, 1988, whichever is later, apply to the Controller for recovering the immediate possession of such premises.

(2) Where the landlord is a member of any of the armed forces and has a period of less than one year preceding the date of his retirement and the premises let out by him are required for his own residence after his retirement, he may, at any time, within a period of one year before the date of his retirement, apply to the Controller for recovering the immediate possession of such premises.

(3) Where the landlord referred to in sub-section (1) or sub-section (2) has let out more than one premises, it shall be open to him to make an application under that sub-section in respect of only one of the premises chosen by him.

Explanation.-For the purpose of this section, “armed forces” means an armed force of the Union constituted under an Act of Parliament and includes a member of the police force constituted under section 3 of the Delhi Police Act, 1978 (34 of 1978).

Section 14C. Right to recover immediate possession of premises to accrue to Central Government and Delhi Administration employees.

(1) Where the landlord is a retired employee of the Central Government or of the Delhi Administration, and the premises let out by him are required for his own residence, such employee may, within one year from the date of his retirement or within a period of one year from the date of commencement of the Delhi Rent Control (Amendment) Act, 1988, whichever is later apply to the Controller for recovering the immediate possession of such premises.

(2) Where the landlord is an employee of the Central Government or of the Delhi Administration and has a period of less than one year preceding the date of his retirement and the premises let out by him are required by him for his own residence after his retirement, he may, at any time within a period of one year before the date of his retirement, apply to the Controller for recovering the immediate possession of such premises.

(3) Where the landlord referred to in sub-section (1) or sub-section (2) has let out more than one premises, it shall be open to him to make an application under that sub-section in respect of only one of the premises chosen by him.

Section 14D. Right to recover immediate possession of premises to accrue to a widow.

(1) Where the landlord is a widow and the premises let out by her, or by her husband, are required by her for her own residence, she may apply to the Controller for recovering the immediate possession of such premises.

(2) Where the landlord referred to in sub-section (1) has let out more than one premises, it shall be open to her to make an application under that sub-section in respect of any one of the premises chosen by her.

Section 15 When a tenant can get the benefit of protection against eviction.

Section 16. Restrictions on sub-letting.

(1) Where at any time before the 9th day of June, 1952, a tenant has sub-let the whole or any part of the premises and the sub-tenant is, at the commencement of this Act, in occupation of such premises, then notwithstanding that the consent of the landlord was not obtained for such sub-letting, the premises shall be deemed to have been lawfully sub-let.

(2) No premises which have been sub-let either in whole or in part on or after the 9th day of June, 1952,without obtaining the consent in writing of the landlord, shall be deemed to have been lawfully sub-let.

(3) After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord,-

(a) Sub-let the whole or any part of the premises held by him as a tenant; or

(b) transfer or assign his rights in the tenancy or in any part thereof.

(4) No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in kind for giving his consent to the sub-letting of the whole or any part of the premises held be the tenant.

Section 17. Notice of creation and termination of sub-tenancy.

(1) Whoever, after the commencement of this Act, any premises are sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the sub-tenant to whom the promises are sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within one month of the date of such sub-letting and notify the termination of such sub-tenancy within one month of such termination.

(2) Where, before the commencement of this Act, any premises have been lawfully sub-let either in whole or in part by the tenant, the tenant or the sub-tenant to whom the premises have been sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within six months of the commencement of this Act, and notify the termination of such sub-tenancy within one month of such termination.

(3) Where in any case mentioned in sub-section (2), the landlord contests that the premises were not lawfully sub-let, and an application is made to the Controller in this behalf, either by the landlord or by the sub-tenant, within two months of the date of the receipt of the notice of sub-letting by the landlord or the issue of this notice by the tenant or the sub-tenant, as the case may be, the Controller shall decide the dispute.

Section 18. Sub-tenant to be tenant in certain cases.

(1) Where an order for eviction in respect of any premises is made under section 14 against a tenant but not against a sub-tenant referred to in section 17 and a notice of the sub-tenancy has been given to the landlord, the sub-tenant shall, with effect from the date of the order, be deemed to become a tenant holding directly under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.

(2) Where, before the commencement of this Act, the interest of a tenant in respect of any premises has been determined without determining the interest of any sub-tenant to whom the premises has been determined without determining the interest of any sub-tenant to whom the premises either in whole or in part had been lawfully sub-let, the sub-tenant shall, with effect from the date of the commencement of this Act, be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord , if the tenancy had continued.

Section 19. Recovery of possession for occupation and re-entry.

(1) Where a landlord recovers possession of any premises from the tenant in pursuance of an order made under clause (c) of the proviso to sub-section (1) of section 14 [or under sections 14A, 14B, 14C, 148 and 21], the landlord shall not, except with the permission of the Controller, obtained in the prescribed manner, re-let the whole or any part of the premises within three years from the date of obtaining such possession, and in granting such permission, the Controller may direct the landlord to put such evicted tenant in possession of the premises.

(2) Where a landlord recovers possession of any premises as aforesaid and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, re-let to any person other than the evicted tenant without obtaining the permission of the Controller under sub-section (1) or the possession of such premises is transferred to another person for reasons which do not appear to the Controller to be bona fide, the Controller may, on an application made on him in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit.

Section 20. Recovery of possession for repairs and re-building and re-entry.

(1) In making any order on the grounds specified in clause (f) or clause (g) of the proviso to sub-section (1) of section 14, the Controller shall ascertain from the tenant whether he elects to be placed in occupation of the premises or part thereof from which he is to be evicted and if the tenant so elects, shall record the fact of the election in the order and specify therein the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs or building or re-building, as the case may be.

(2) If the tenant delivers possession on or before the date specified in the order, the landlord shall, on the completion of the work of repairs of building or re-building, place the tenant in occupation of the premises or part thereof.

(3) If, after the tenant has delivered possession on or before the date specified in the order, the landlord fails to commence the work of repairs or building or re-building within one month of the specified date or fails to complete the work in a reasonable time or having complete the work, fails to place the tenant in occupation of the premises in accordance with sub-section (2), the Controller may, on an application made to him in this behalf by the tenant within such time as may be prescribed, order the landlord to place the tenant in occupation of the premises or part thereof or to pay to the tenant such compensation as the Controller thinks fit.

Section 21. Recovery of possession in case of tenancies for limited period.

(1) Where a landlord does not require the whole or any part of any premises for a particular period, and the landlord, after obtaining the permission of the Controller in the prescribed manner, lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does not on the expiry of the said period, vacate such premises then, notwithstanding anything contained in section 14 or in any other law, the Controller may, on an application made to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premises or part thereof by evicting the tenant and every other person who may be in occupation of such premises.

(2) While making an order under sub-section (1), the Controller may award to the landlord such damages for the use or occupation of the premises at such damages for the use or occupation of the premises at such rates he considers proper in the circumstances of the case for the period from the date of such order till the date of actual vacation by the tenant.

Section 22. Special provision for recovery of possession in certain cases.

Where the landlord in respect of any premises is any company or other body corporate or any local authority or any public institution and the premises are required for the use of employees of such landlord or in the case of a public institution, for the furtherance activities, then, notwithstanding anything contained in section 14 or any other law, the Controller may, on an application made to him in his behalf by such landlord, place the landlord in vacant possession of such premises by evicting the tenant and every other person who may be in occupation thereof, if the Controller is satisfied -

(a) that the tenant to whom such premises were let for use as a residence at a time when he was in the service or employment of the landlord, has ceased to be in such service or employment; or

(b) that the tenant has acted in contravention of the terms, express or implied, under which he was authorised to occupy such premises; or

(c ) that any other person is in unauthorised occupation of such premises; or

(d) that the premises are required bona fide by the public institution for the furtherance of its activities.

Explanation.- For the purposes of this section, “public institution” includes any educational institution, library, hospital and charitable dispensary [but does not include any such institution set up by any private trust

Section 23. Permission to construct additional structures.

Where the landlord proposes to make any improvement in, or construct any additional structure on, any building which has been let to a tenant and the tenant refuses to allow the landlord to make such improvement or construct such additional structure and the Controller, on an application made to him in this behalf by the landlord, is satisfied that the landlord is ready and willing to commence the work and that such work will not cause any undue hardship to the tenant, the Controller may permit the landlord to do such work and may make such other order as he thinks fit in the circumstances of the case.

Section 24. Special provision regarding vacant building sites.

Notwithstanding anything contained in section 14, where any premises which have been let comprise vacant land upon which it is permissible under the building regulations or municipal bye-laws, for the time being in force, to erect any building , whether for use as a residence or for any other purpose and the landlord proposing to erect such building is unable to obtain possession of the land from the tenant by agreement with him and the Controller, on an application made to him in this behalf by the landlord, is satisfied that the landlord is ready and willing to commence the work and that severance of the vacant land from the rest of the premises will not cause undue hardship to the tenant, the Controller may-

(a) Direct severance;

(b) Place the landlord in possession of the vacant land;

(c) Determine the rent payable by the tenant in respect of the rest of the premises; and

(d) Make such other order as he thinks fit in the circumstances of the case.

Section 25. Vacant possession to landlord

Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such person there from:

Provided that nothing in this section shall apply to any person who has an independent title to such premises.

Chapter III – A – Summary Trial of Certain Applications

Section 25A.- Provisions of this Chapter to have overriding effect.

The provisions of this Chapter or any rule made there under shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force.

Section 25B – Special procedure for the disposal of applications for eviction on the ground of bona fide requirement.

(1) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A [or under section 14B or under section 14C or under section 14D] shall be dealt with in accordance with the procedure specified in this section.

(2) The Controller shall issue summons, in relation to every application referred to in sub-section (1), in the form specified in the Third Schedule.

(3) (a) The Controller shall, in addition to, and simultaneously with, the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgment due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may ,if the circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain .

(b) When an acknowledgement purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent had refused to take delivery of the registered article, the Controller may declare that there has been a valid service of summons.

(4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files and affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.

(5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (c) of the proviso to sub-section (1) of section 14, or under section 14A.

(6) Where leave is granted to the tenant to contest the application, the Controller shall commence the hearing of the application as early as practicable.

(7) Notwithstanding anything contained in sub-section (2) of section 37, the Controller shall, while holding and inquiry in a proceeding to which this Chapter applies, follow the practice and procedure of a Court of Small Causes, including the recording of evidence.

(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section:

Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.

(9) Where no application has been made to the High Court on revision, the Controller may exercise the powers of review in accordance with the provisions of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).

(10) Save as otherwise provided in this Chapter, the procedure for the disposal of an application for eviction on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A, shall be the same as the procedure for the disposal of applications by Controllers.

Section 25C – Act to have effect in a modified form in relation to certain persons.

(1) Nothing contained in sub-section (6) of section 14 shall apply to a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required by or in pursuance of, an order made by that Government or authority to vacate such residential accommodation, or, in default, to incur certain obligations, or the ground that the owns a residential accommodation either in his own name or in the name of his wife or dependent child in the Union territory of Delhi.

(2) In the case of a landlord whom, being a person of the category specified in sub-section (1) has obtained, on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A, an order for the eviction of a tenant from any premises, the provisions of sub-section (7) of section 14 shall have effect as if for the words “six months”, occurring therein, the words “two months” were substituted.

Chapter IV – Deposit of Rent

Section 26. Receipt to be given for rent paid.

(1) Every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable [and where any default occurs in the payment of rent, the tenant shall be liable to pay simple interest at the rate of fifteen per cent. per annum from the date on which such payment of rent is due to the date on which it is paid.

(2) Every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorised agent a written receipt for the amount paid to him., signed by the landlord or his authorised agent:

Provided that it shall be open to the tenant to remit the rent to his landlords by postal money order.

(3) If the landlord or his authorised agent refuses or neglects to deliver to the tenant a receipt referred to in sub-section (2), the Controller may, on an application made to him in this behalf by the tenant within two months from the date of payment and after hearing the landlord or his authorised agent, by order direct the landlord or his authorised agent to pay to the tenant, by way of damages, such sum not exceeding double the amount of rent paid by the tenant and the costs of the application and shall also grant a certificate to the tenant in respect of the rent paid.

Section 27. Deposit of rent by the tenant.

(1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in section 26 of refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner:

Provided that in case where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order.

(2) The deposit shall be accompanied by an application by the tenant containing the following particulars, namely:-

(a) the premises for which the rent is deposited with a description sufficient for identifying the premises;

(b) the period for which the rent is deposited;

(c) the name and address of the landlord or the person or persons claiming to be entitled to such rent;

(d) the reasons and circumstances for which the application for depositing the rent is made;

(e) such other particulars as may be prescribed.

(3) On such deposit of the rent being made, the Controller shall send in the prescribed manner a copy or copies of the application to the landlord or persons claiming to be entitled to the rent with an endorsement of the date of the deposit.

(4) If an application is made for the withdrawal of any deposit of rent, the Controller shall, if satisfied that the applicant is the person entitled to receive the rent deposited, order the amount of the rent to be paid to him in the manner prescribed:

Provided that no order for payment of any deposit of rent shall be made by the Controller under this sub-section without giving all persons named by he tenant in his application under sub-section (2) as claiming to be entitled to payment of such rent being decided by a court of competent jurisdiction.

(5) If at the time of filing the application under sub-section (4), but not after the expiry of thirty days from receiving the notice of deposit, the landlord or the person or persons claiming to be entitled to the rent complains or complain to the Controller that the statements in the tenant’s application of the reasons and circumstances which led him to deposit the rent are untrue, the Controller, after giving the tenant an opportunity of being heard, may levy on the tenant a fine which may extend to an amount equal to two months’ rent, if the Controller is satisfied that the said statements were materially untrue and may order that a sum out of the fine realised be paid to the landlord as compensation.

(6) The Controller may, on the complaint of the tenant and after giving an opportunity to the landlord of being heard, levy on the landlord a fine which may extend to an amount equal to two months’ rent, if the Controller is satisfied that the landlord, without any reasonable cause, refused to accept rent though tendered to him within the time referred to in section 26 and may further order that a sum out of the fine realised be paid to the tenant as compensation.

Section 28. Time limit of making deposit and consequences of incorrect particulars is application for deposit.

(1) No rent deposited under section 27 shall be considered to have been validly deposited under that section, unless the deposit is made within twenty-one days of the time referred to in section 26 for payment of the rent.

(2) No such deposit shall be considered to have been validly made, if the tenant willfully makes any false statement in his application for depositing the rent, unless the landlord has withdrawn the amount deposited before the date of filing an application for the recovery of possession of the premises from the tenant.

(3) If the rent is deposited within the time mentioned in sub-section (1) and does not cease to is valid deposit for the reason mentioned in sub-section (2), the deposit shall constitute payment of rent to the landlord, as if the amount deposited had been validly tendered.

Section 29. Saving as to acceptance of rent forfeiture of rent in deposit.

(1) The withdrawal of rent deposited under section 27 in the manner provided therein shall not operate as an admission against the person withdrawing it of the correctness of the rent, the period of default, the amount due, or of any other facts stated in the tenant’s application for depositing the rent under the said section.

(2) Any rent in deposit which is not withdrawn by the landlord or by the person or persons entitled to receive such rent shall be forfeited to Government by an order made by the Controller, if it is not withdrawn before the expiration of five years from the date of posting of the notice of deposit.

(3) Before passing as order of forfeiture the Controller shall give notice to the landlord or the person or persons entitled to receive the rent in deposit by registered post at the last known address of such landlord or person or persons and shall also publish the notice in his office and in any local newspaper.

Chapter V – Hotels and Lodging Houses

Section 30. Application of the Chapter.

The Provisions of this Chapter shall apply to all hotels and lodging houses in the areas which, immediately before the 7th day of April, 1958, were included in the New Delhi Municipal Committee, Municipal Committee, Delhi and the Notified Area Committee, Civil Station, Delhi and may be applied by the Central Government, by notification in the Official Gazette, to hotels and lodging houses within the limits of such other urban are of the Municipal Corporation of Delhi as may be specified in the notification:

Provided that if the Central Government is of opinion that it would not be desirable in the public interest to make the provisions of this Chapter applicable to any class of hotels or lodging houses, it may, by notification in the Official Gazette, exempt such class of hotels or lodging houses or lodging houses from the operation of this Chapter.

Section 31. Fixing of fair rate.

(1) Where the Controller, on a written complaint or otherwise, has reason to believe that the charges made for board or lodging or any other service provided in any hotel or lodging houses are excessive, he may fix a fair rate to be charged for board, lodging or other services provided in the hotel or lodging house and in fixing such fair rate, specified separately the rate for lodging, board or other services.

(2) In determining the fair rate under sub-section (1), the Controller shall have regard to the circumstances of the case and to the prevailing rate of charges for the same or similar accommodation, board and service, during the twelve months immediately preceding the 1st day of June, 1951, and to any general increase in the cost of living after that date.

Section 32. Revision of fair rate.

On a written application from the manager of a hotel or the owner of a lodging house or otherwise, the Controller may, from time to time, revise the fair rate to be charged for board, lodging or other service in a hotel or lodging house, and fix such rate as he may deem fit having regard to any general rise or fall in the cost of living which may have occurred after the fixing of fair rate.

Section 33. Charges in excess of fair rate not recoverable.

When the Controller has determined the fair rate of charges in respect of a hotel or lodging house, -

(a) The manager of the hotel or the owner of the lodging house, as the case may be, shall not charge any amount in excess of the fair rate and shall not, except with the previous written permission of the Controller, withdraw from the lodger any concession or service allowed at the time when the Controller determined the fair rate;

(b) Any agreement for the payment of any charges in excess of such fair rate shall be void in respect of such excess and shall be construed as if it were an agreement for payment of the said fair rate;

(c) Any sum paid by a lodger in excess of the fair rate shall be recoverable by him at any time within a period of six months from the date of the payment from the manager of the hotel or the owner of the lodging house or his legal representatives and may, without prejudice to any other mode of recovery, be deducted by such lodger from any amount payable by him to such manager or owner.

Section 34. Recovery of possession by manager or a hotel or the owner of a lodging house.

Notwithstanding anything contained in this Act, the manager of a hotel or the owner of a lodging house shall be entitled to recover possession of the accommodation provided by him to a lodger on obtaining a certificate from the Controller certifying-

(a) That the lodger has been guilty of conduct which is a nuisance or which caused annoyance to any adjoining or neighboring ledger;

Explanation.-For the purposes of this clauses, “nuisance” shall be deemed to include any act which constitutes an offence under the Suppression of Immoral Traffic in Women and Girls Act, 1956 (104 of 1956);

(b) That the accommodation is reasonably and bona fide required by the owner of the hotel or lodging house, as the case may be, either for his own occupation or for the occupation of any person for whose benefit the accommodation is held, or any other cause which may be deemed satisfactory to the Controller;

(c) That the lodger has failed to vacate the accommodation on the termination of the period of the agreement in respect thereof;

(d) That the lodger has done any act which in inconsistent with the purpose for which the accommodation was given to him or which is likely to affect adversely or substantially the owner’s interest therein;

(e) That the lodger has failed to pay the rent due from him.

Chapter VI – Appointment of Controllers and their power and functions and appeals

Section 35. Appointment of Controllers and Additional Controllers.

(1) The Central Government may, by notification in the Official Gazette, appoint as many Controllers as it thinks fit, and define the local limits within which, or the hotels and lodging houses in respect of which, each Controller shall exercise the powers conferred, and perform the duties imposed, on Controllers by or under this Act.

(2) The Central Government may also, by notification in the Official Gazette, appoint as many additional Controllers as it thinks fit and an additional Controller shall perform such of the functions of the Controller as may, subject to the control of the Central Government, be assigned to him in writing by the Controller and in the discharge of these functions, an additional Controller shall have and shall exercise the same powers and discharge the same duties as the Controller.

(3) A person not be qualified for appointment as a Controller or an additional Controller, unless he has for at least five years held a judicial office in India or has for at least seven years been practicing as an advocate or a pleader in India.

Section 36. Powers of Controller.

(1) the Controller may-

(a) Transfer any proceeding pending before him for disposal to any additional Controller, or

(b) Withdraw any proceeding pending before any additional Controller any dispose it of him or transfer the proceeding for disposal to any other additional Controller.

(2) The Controller shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following matters, namely:-

(a) Summoning and enforcing the attendance of any person and examining him on oath;

(b) Requiring the discovery and production of documents;

(c) Issuing commissions for the examination of witnesses;

(d) Any other matter which may be prescribed,

And any proceeding before the Controller shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860), and the Controller shall be deemed to be a civil court within the meaning of section 480 and section 482 of the Code of Criminal Procedure, 1898 (5 of 1898).

(3) For the purposes of holding any inquiry or discharging any duty under this Act, the Controller may,-

(a) After giving not less than twenty-four hours’ notice in writing, enter and inspect or authorise any officer subordinate to him to enter and inspect any premises at any time between sunrise and sunset; or

(b) By written order, require any person to produce for his inspection all such accounts, book or other documents relevant to the inquiry at such time and at such place as may be specified in the order.

(4) The Controller may, if he thinks fit, appoint one or more person having special knowledge of the matter under consideration as an assessor or assessors to advise him in the proceeding before him.

Section 37. Procedure to be followed by Controller.

(1) No order which prejudicially affects any person shall be made by the Controller under this Act without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objection, if any, and any evidence he may produce in support of the same have been considered by the Controller.

(2) Subject to any rules that may be made under this Act, the Controller, shall, while holding an inquiry in any proceeding before him, follow as far as may be the practice and procedure of a Court of Small Causes, including the recording of evidence.

(3) In all proceedings before him, the Controller shall consider the question of costs and award such costs to or against any party as the Controller considers reasonable.

Section 38. Appeal to the Tribunal.

(1) An appeal shall lie from every order of the Controller made under this Act [only on questions of law] to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette:

Provided that no appeal shall lie from an order of the Controller made under section 21.

(2) An appeal under sub-section (1) shall be preferred within thirty days from the date of the order made by the Controller:

Provided that the Tribunal may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(3) The Tribunal shall have all the power vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when hearing an appeal.

(4) Without prejudice to the provisions of sub-section (3), the Tribunal may, on an application made to it or otherwise, by order transfer any proceeding pending before any Controller or additional Controller to another Controller or additional Controller and the Controller or additional Controller to whom the proceeding is so transferred may, subject to any special directions in the order of transfer, dispose of the proceeding.

(5) A person shall not be qualified for appointment to the Tribunal, unless he is, or has been a district judge or has for at least ten years held a judicial office in India.

Section 38A. Additional Rent Control Tribunals.

(1) For the expeditious disposal of appeals and applications under section 38, the Central Government may, by notification in the Official Gazette, constitute as many Additional Rent Control Tribunals as it deem fit and appoint to each such Additional Rent Control Tribunal (hereinafter referred to as the Additional Tribunal) on person qualified for appointment to the Tribunal in accordance with the provisions of sub-section (5) of that section.

(2) Notwithstanding anything contained in section 38, the Tribunal, may, by

order in writing, -

(a) Specify the appeals or classes of appeals under sub-section (1) of that section which may be preferred to an disposed of by each Additional Tribunal and the classes of cases in which each Additional Tribunal may exercise the powers of the Tribunal under sub-section (4) of that section;

(b) Transfer any appeal or proceeding pending before it for disposal to, any Additional Tribunal; or

(c) Withdraw any appeal or proceeding pending before any Additional Tribunal and dispose it of itself or transfer the appeal or proceeding for disposal to any other Additional Tribunal.

(3) The Provisions of sub-section (2) and (3) of section 38 shall apply in relation to an Additional Tribunal as they apply in relation to the Tribunal.

Section 38B. Power of High Court to transfer appeals, etc.

The High Court may also, on an application made to it or otherwise, by order, transfer -

(a) any appeal or proceeding pending before the Tribunal to any Additional Tribunal; or

(b) any appeal or proceeding pending before any Additional Tribunal to the Tribunal or in any other Additional Tribunal.

Section 39. Section 39 omitted by Act 57 of 1988, sec.17 (w.e.f. 1-12-1988).

39. Section 39 omitted by Act 57 of 1988, sec.17 (w.e.f. 1-12-1988).

Section 40. Amendment of orders.

Clerical or arithmetical mistakes in any order passed by a Controller or [the Tribunal or an Additional Tribunal] or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Controller or [the Tribunal on an Additional Tribunal] on am application received in this behalf from any of the parties or otherwise.

Section 41. Controller to exercise powers of a magistrate for recovery of fine.

Any fine imposed by a Controller under this Act shall be paid by the person find witnessed such time as may be the Controller and the Controller may, for good and sufficient reason, extend the time, and in default of such payment, the amount shall be recoverable as a fine under the provisions of the Code of Criminal Procedure, 1898, and the Controller shall be deemed to be a magistrate under the said code for the purposes of such recovery.

Section 42. Controller to exercise powers of civil court for execution of other orders.

Save as otherwise provided in section 41, an order made by the Controller or an order passed on appeal under this Act shall be executable by the Controller as a decree of a civil court and for this purpose, the Controller shall have all the powers of a civil court.

Section 43. Finality of order.

Save as otherwise expressly provided in this Act, every order made by the Controller or an order passed on appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding.

Chapter VII – Provisions regarding special obligations of Landlords and Penalties

Section 44. Landlords duty to keep the premises in good repair.

(1) Every landlord shall be bound to keep the premises in good and tenantable repairs.

(2) If the landlord neglects or fails to make, within a reasonable time after notice in writing, any repairs which he is bound to make under sub-section (1) the tenant may make the same himself and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord:

Provided that the amount sod deducted or recoverable in any year shall not exceed one-twelfth of the rent payable by the tenant for that year.

(3) Where any repairs without which the premises are not habitable or usable except with undue inconvenience are to be made and the landlord neglects or fails to make them after notice in writing, the tenant may apply to the Controller for permission to make such repairs himself and may submit to the Controller an estimate of the cost of such repairs, and, thereupon, the Controller may, after giving the landlord an opportunity of being heard and after considering such estimate of the cost and making such inquires as he may consider necessary, by an order in writing, permit the tenant to make such repairs at such cost as may be specified in the order and it shall thereafter be lawful for the tenant to make such repairs himself and to deduct the cost thereof, which shall in no case exceed the amount so specified, from the rent or otherwise recover it from the landlord:

Provided that the amount so deducted or recoverable in any year shall not exceed one-half of the rent payable by the tenant for that year:

Provided further that if any repairs not covered by the said amount are necessary in the opinion of the Controller, and the tenant agrees to bear the excess cost himself., the Controller may permit the tenant to make such repairs.

Section 45. Cutting off or withholding essential supply or service.

(1) No landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him.

(2) If a landlord contravenes the provisions of sub-section (1), the tenant may make an application to the Controller complaining of such contravention.

(3) If the Controller is satisfied that essential supply or service was cut off or withheld by the landlord with a view to compel the tenant to vacate the premises or to pay an enhanced rent, the Controller may pass an order directing the landlord to restore the amenities immediately, pending the inquiry referred to in sub-section (4).

Explanation.-An interim order may be passed under this sub-section without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him.

(2) If a landlord contravenes the provisions of sub-section (1), the tenant may make an application to the Controller complaining of such contravention.

(3) If the Controller is satisfied that essential supply or service was cut off or withheld by the landlord with a view to compel the tenant to vacate the premises or to pay an enhanced rent, the Controller may pass an order directing the landlord to restore the amenities immediately, pending the inquiry referred to in sub-section (4).

Explanation.-An interim order may be passed under this sub-section without giving notice to the landlord.

(4) If the Controller on inquiry finds that the essential supply or service enjoyed by the tenant in respect of the premises was cut off or withheld by the landlord without just and sufficient cause, he shall make an order directing the landlord to restore such supply or service.

(5) The Controller may in his discretion direct that compensation not exceeding fifty rupees-

(a) be paid to the landlord by the tenant, if the application under sub-section (2) was made frivolously or vexatiously;

(b) be paid to the tenant by the landlord, if the landlord had cut off or withheld the supply or service without just and sufficient cause.

Explanation 1.-In this section “essential supply or service” includes supply of water , electricity, lights in passages and on staircases, conservancy and sanitary services.

Explanation II.-For the purposes of this section, withholding any essential supply or service shall include acts or omissions attributable to the landlord of account of which the essential supply or service is cut off by the local authority or any order competent authority.

Section 46. Landlord’s duty to give notice of new construction to Government.

Whenever, after the commencement of this Act, any premises are constructed, the landlord shall, within thirty days of the completion of such construction, give intimation thereof in writing to the [Director of Estates] or to such other officer as may be specified in this behalf by the Government.

Section 47. Leases of vacant premises to Government.

(1) The provisions of this section shall apply only in relation to premises in the areas which, immediately before the 7th day of April, 1958, were included in the New Delhi Municipal Committee and which are, or are intended to be, let for use as a residence.

(2) Whenever any premises the standard rent of which is not less than two thousand and four hundred rupees per year becomes vacant either by the landlord ceasing to occupy the premises or by the termination of a tenancy or by the eviction of a tenant or by the release of the premises from requisition or otherwise,-

(a) the landlord shall, within seven days of the premises becoming vacant, give intimation thereof in writing to the [Director of Estate];

(b) whether or not such intimation is given, the [Director of Estates] may serve on the landlord by post or otherwise a notice-

(i) informing him that the premises are required by the Government for such period as may be specified in the notice; and

(ii) requiring him, and every person claiming under him, to deliver possession of the premises forthwith to such officer or person as may be specified in the notice:

Provided that where the landlord has given the intimations required by clause (a), no notice shall be issued by the Director of Estates] under clause (b) more than seven days after the delivery to him of the intimation:

Provided further that nothing in this sub- section shall apply in respect of any premises the possession of which has been obtained by the landlord on the basis of any order made on the ground set forth in clause (e) of the proviso to sub-section (1) of section 14 or in respect of any premises which have been released from requisition for the use and occupation of the landlord himself.

(3) Upon the service of a notice under clause (b) of sub-section (2), the premises shall be deemed to have been leased to the Government for the period specified in the notice, as from the date of the delivery of the intimation under clause (a) of sub-section (2) or in case where no such intimation has been given, as from the date on which possession of the premises in delivered in pursuance of the notice, and the other terms of the lease shall be such as may be agreed upon between the Government and the landlord or in default of agreement, as may be determined by the Controller, in accordance with the provisions of this Act.

(4) In every case where the landlord has in accordance with the provisions of sub-section (2) given intimation of any premises becoming vacant and the premises are not taken on lease by the Government under this section, the Government shall pay to the landlord a sum equal to one-fifty second of the standard rent per year of the premises.

(5) Any premises taken of lease by the Government under this section may be put to any such use as the Government thinks fit, and in particulars, the Government may permit the use of the premises for the purposes of any public institution or any foreign embassy, legation or consulate or any High Commissioner or Trade Commissioner, or as a residence by any officer in the service of the Government or of a foreign embassy, legation or consulate or of a High Commissioner or Trade Commissioner.

Section 48. Penalties.

(1) If any person contravenes any of the provisions of section 5, he shall be punishable -

(a) In the case of a contravention of the provisions of sub-section (1) of section 5, with simple imprisonment for a term which may extend to three months, or with fine which may extend to a sum which exceeds the unlawful charge claimed or received under sub-section by one thousand rupees, or with both;

(b) In the case of a contravention of the provisions of sub-section (2) or sub-section (3) of section 5, with simple imprisonment for a term which may extend to six months, or with fine which may extend to a sum which exceeds the amount or value or unlawful charge claimed or received under the said sub-section (2) or sub-section (3), as the case may be, by five thousand rupees, or with both.

(2) If any tenant sub-lets; assigns or otherwise parts with the possession of the whole or part of any premises in contravention of the provisions of clause (b) of the proviso to sub-section (1) of section 14, he shall be punishable with fine which may extend to one thousand rupees.

(3) If any landlord re-lets or transfers the whole or any part of any premises in contravention of the provisions of sub-section (1) or sub-section (2) of section 19 he shall be punishable with imprisonment for a term which may extend to six months , or with fine, or with both.

(4) If any landlord contravenes the provisions of sub-section (1) of section 45, he shall be punishable with imprisonment for a term which may extend to three months or with fine, or with both.

(5) If any landlord fails to comply with provisions of section 46 he shall be punishable with fine which may extend to one hundred rupees.

(6) If any person contravenes the provisions of clause (a) of sub-section (2) of section 47, or fails to comply with a requirement under clause (b) thereof, he shall be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

Section 49. Cognizance of offences.

(1) No court inferior to that of [Metropolitan Magistrate] shall try any offence punishable under this Act.

(2) No court shall take cognizance of an offences punishable under this Act, unless the complaint in respect of the offences has been made within three months from the date of the offence has been made within three months from the date of the commission of the offence.

(3) Notwithstanding anything contained in [section 29 of the Code of Criminal Procedure, 1973 (2 of 1974)] it shall be lawful for any [Metropolitan Magistrate] to pass a sentence of fine exceeding [five thousand rupees] on a person convicted of an offence punishable under this Act.

Chapter VIII – Miscellaneous

Section 50. Jurisdiction of civil courts barred in respect of certain matters

(1) Save a otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.

(2) If, immediately before the commencement of this Act, there is any suit or proceeding pending in any civil court for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 19951, but before the 9th day of June, 1955, such suit or proceeding shall, on such commencement , abate.

(3) If, in pursuance of any decree or order made by a court, any tenant has been evicted after the 16th day of August, 1958, from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, then, notwithstanding anything contained in any other law, the Controller may, on an application made to him in this behalf by such evicted tenant within six months from the date of eviction, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit.

(4) Nothing in sub-section (1) shall be construed as prevailing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises.

Section 51. Controllers to be public servants.

All Controllers and additional Controllers appointed under this Act shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

Section 52. Protection of action taken in good faith.

No suit, prosecution or other legal proceeding shall lie against any Controller or additional Controller in respect of anything which is in good faith done or intended to be done in pursuance of this Act.

Section 53. Amendment of the Delhi Tenants Temporary Protection Act, 1956.

53. Amendment of the Delhi Tenants Temporary Protection Act, 1956. – [Rep.]

Section 54. Saving of operation of certain enactments.

Nothing in this Act shall affect the provisions of the Administration of Evacuee Property Act, 1950 (31 of 1950), or the Slum Areas (Improvement and Clearance ) Act, 1956 (96 of 1956), or the Delhi Tenants (Temporary Protection ) Act, 1956 (97 of 1956).

Section 55. Special provisions regarding decrees affected by the Delhi Tenants (Temporary Protection ) Act, 1956.

Where any decree or order for the recovery of possession of any premises to this the Delhi Tenants (Temporary Protection) Act, 1956 (97 of 1956), applies is sought to be executed on the censer of operation of that Act in relation to those premises, the court executing the decree of order may, on the application of the person against whom the decree or order has been passed or otherwise, reopen the case and if it is satisfied that the decree or order could not have been passed if this Act had been in force on the date of decree or order, the court may, having regard to the provisions of this Act, set aside the decree or order or pass such other order in relation thereto as it thinks fit.

Section 56. Power to makes rules.

(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) The manner of approval of valuers and procedure to be followed by such valuers under the proviso to sub-section (2) of section 9;

(aa) The form and manner in which, and the period within which, an application may be made to the Controller;

(b) The form and manner in which an application for deposit or rent may be made and the particulars which it may contain;

(c) The manner in which a Controller may hold an inquiry under this Act;

(d) The powers of the civil court which may be vested in a Controller;

(e) The form and manner in which an application for appeal or transfer of proceeding may be made to the Tribunal

(g) Any other matter which has to be, or may be, prescribed.

(3) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one sessions or in two or more successive session, and if, before the expiry of the session immediately following the session or the successive session aforesaid, both Houses agree in making any modification in the rule or both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so; however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Section 57. Repeal and saving.

(1) The Delhi and Ajmer Rent Control Act, 1952 (38 of 1952) in so far as it is applicable to the Union territory of Delhi, is hereby repealed.

(2) Notwithstanding such repeal, all suits and other proceedings under the said Act pending, at the commencement of this Act, before any court or other authority shall be continued and disposed of in accordance with the provisions of the said Act, as if the said Act had continued in force and this Act had not been passed:

Provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which section 54 does not apply, the court or other authority shall have regard to the provisions of this Act:

Provided further that the provisions for appeal under the said Act shall continue in force in respect of suits and proceedings disposed of there under.

The First Schedule

The urban areas within the limits of the Municipal Corporation of Delhi to which the Act extends

The areas which, immediately before the 7th April, 1958, were included in -

1. the Municipality of New Delhi excluding the are specified in the First Schedule to the Delhi Municipal Corporation Act, 1957 (66 of 1957);

2. the Municipal Committee, Delhi;

3. the Notified Area Committee, Civil Station, Delhi;

4. the Municipal Committee, Delhi –Shahdara,

5. the Notified Area Committee, Red Fort;

6. the Municipal Committee, West Delhi;

7. the South Delhi Municipal Committee;

8. the Notified Area Committee, Mehrauli.

The Second Schedule

Basic Rent

1. In this Schedule, “basic rent” in relation to any premises let out before the 2nd June, 1944, means the original rent of such premises referred to in paragraph 2 increased by such percentage of the original rent as is specified in paragraph 3 or paragraph 4 or paragraph 5, as the case may be.

(2) “Original rent” , in relation to premises referred to in paragraph I, means –

(a) Where the rent of such premises has been fixed under the New Delhi House Rent Control Order, 1939,or the Delhi Rent Control Ordinance, 1944 (25 of 1944), the rent so fixed, or

(b) In any other case,-

(i) The rent at which the premise sere let on the 1st November, 1939,or

(ii) If the premises were not let on that date, the rent at which they were first let out at any time after that date but before the 2nd June, 1944.

3. Where the premises to which paragraph 2 applies are let out for the purpose of being used as a residence or for any of the purpose of public hospital, an educational institution a public library or reading room or an orphanage, the basic rent of the premises shall be the original rent increased by-

(a) 12-1/2 per cent. thereof, if the original rent per annum is not more than Rs. 300;

(b) 15-5/8 per cent, thereof, if the original rent pr annum is more than Rs. 300 but not more than Rs. 600

(c) 18-3/4 per cent, thereof, if the original rent per annum is more than Rs. 600 but not more than Rs. 1,200;

(d) 25 per cent, thereof, if the original rent per annum is more than Rs. 1,200.

4. Where the premises to which paragraph 2 applies are let out for any purpose other than those mentioned in paragraph 3, he basic rent of the premises shall be the original rent increased by twice the amount by which it would be increased under paragraph 3, if the premises were let for a purpose mentioned in that paragraph.

5. Where the premises to which paragraph 2 applies are used mainly as a residence and incidentally for business or profession, the basic rent of the premises shall be the mean of the rent as calculated under paragraph 3 and 4.

The Third Schedule

Form of summons in a case where recovery of possession of premises is prayed for on the ground of bona fide requirement or under Section 14A

To

[Name, description and place of residence of the tenant]

Whereas Shri……………..has filed an application a copy of which is annexed) for your eviction from (here insert the particulars of the premises) on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A;

You are hereby summoned to appear before the Controller within fifteen days of the service hereof and to obtain the leave of the Controller to contest the application eviction on the ground aforesaid; in default whereof, the applicant will be entitled at any time after the expiry of the said period of fifteen days to obtain an order for your eviction from the said premises.

Leave to appear and contest the application may be obtained on an application to the Controller supported by an affidavit as is referred to in sub-section (5) of section 25B.

Given under my hand and seal

This …………..day of…………..19..Controller]

1. Short title.

These rules may be called the Delhi Rent Control Rules, 1959.

2. Definitions.

In these rules, unless the context otherwise requires:-

(a) “Act” means the Delhi Rent Control Act, 1958;

(b) “Form” means form appended to these rules;

(c) “Recognised agent” means a person holding a power of attorney authorising him to act on behalf of his principal or an agent empowered by written authority under the hand of his principal;

(d) “Section” means a section of the Act.

(e) “Valuer” means a graduate in civil engineering, architecture or town planning of a recgonised university, or a person who possesses a qualification recognised by the Central Government for recruitment to superior services or posts under the Central Government in the filed of civil engineering, architecture or town planning; and

(A) He must be a person formerly employed-

(a) In a post under Government as a Gazette Officer; or

(b) In a post under any other employer carrying a remuneration of not less than Rs. 2000 per month, and, in either case, must have retired or resigned from such employment after having rendered service for not less than five years as a valuer, architect, or town planner, or in the filed on construction of building designing of structures, or development of land; or

(c) As a professor, reader or lecture in a university, college or any other institution preparing students for a degree in civil engineering, architecture or town planning or has retired or resigned from such employment after having taught for not less than five years any of the subject of valuation, quantity surveying, building construction, architecture, or town planning ; or

(B) He must have been in practice as a consulting engineer, surveyor or architect for a period of not less than five years and must have in the opinion of the Rent Controller acquired sufficient experience in any of the following fields:-

(a) Valuation of building and urban lands;

(a) Valuation of building and urban lands;

(b) Quantity surveying in building construction;

(c) Architectural or structural designing of building or town planning; or

(d) Construction of buildings or development of land.

3. Application under section 9, 13, 14 or 19(1).

(1) Every application to the Controller under section 9, section 13, section 14 or sub-section (1) of section 19 shall be in Form ‘A’.

(2) An application under section 13 shall also give particulars of the sum or consideration paid, the circumstances under which such payment was made and the provisions of the Act, or of the Delhi-Ajmer Rent Control Act, 1952, which has been contravened.

(3) An application for permission to re-let premises under sub-section (1) of section 19 shall also state the ground on which the premises are sought to re-let in whole or in part.

4. Application for re-enter.

An application by a tenant under sub-section (2) of section 19 or under sub-section (3) of section 20 for putting him in possession of the premises of part thereof shall be made within six months from the date on which the cause of action for re-entry arises and shall state the grounds on which such possession in claimed.

5. Application for recovery of possession under section 21.

An application recovery of possession under section 21 by the landlord shall be made within six months from the date of expiry of the period of tenancy.

6. Form of other application.

An application not herein before specified in these rules shall, so far as may be, made in Form ‘A’ and shall state the grounds on which it is made.

7. Manner in which application are to be made.

(1) Every application under the Act shall be signed and verified in the manner prescribed under rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908, and shall be presented by the applicant or his recognised agent to the Controller.

(2) Every such application shall be accompanied by a copy or sufficient number of copies thereof for service on the respondent on respondents mentioned therein.

8. Appearance before Controller.

A party may appear before the Controller either in person or by a recognised agent provided that if the Controller so directs the party shall appear in person.

8.A Form of report of valuation by valuer.

(1) The report of valuation by a valuer in respect of the premised shall be in Form “F”.

Fees-(2) The amount of fees to be paid to the valuer shall be such as may be decided by the Rent Controller.

9. Receipt of rent.

A receipt required to be given by the landlord or his authorsied agent under sub-section (2) of section 26 in respect of rent paid for any premises shall be in Form ‘B’.

10. Deposit of rent.

(1) A deposit of rent under section 27 shall be made in cash and shall be accompanied by an application by the tenant in Form “C”.

(2) On such deposit being made, the Controller shall send a copy or copies of the application accompanying the deposit, by registered post with acknowledgement due, at the cost of the applicant, to the landlord or persons claiming to be entitled to the rent with an endorsement or the date of the deposit.

11. Payment of the rent deposited.

The Controller shall order the amount of rent deposited to be paid to the landlord or persons entitled to the rent either in cash or be cheque.

12. Accounting of deposits.

deposited shall be treated as civil court deposits and accounted for and Subject to the provisions of section 29, all sums dealt with according to the rules of civil court deposits in force in civil courts in Delhi.

13. Recovery of possession from the lodger.

An application by the manager of a hotel or the owner of a lodging house for a certificate under section 34 shall contain the grounds for the recovery of possession from the lodger of accommodation provided to him and shall be made in writing and accompanied by an affidavit in support of the allegations contained therein.

14. Certificate to be sent to the manager.

A certificate issued under section 34 by the Controller shall be sent to the manager of the hotel or the owner of the lodging house concerned with a copy thereof to the lodger concerned by registered post with acknowledgement due.

15. Display of notice of fair rates.

The manager of every hotel or the owner of every lodging house shall display a notice of the fair rates fixed by the Controller and a copy of the relevant provisions of the Act and rules relating thereto in a conspicuous manner in the hotel or lodging house, as the case may be.

16. Application to the Controller.

Every application to the Controller under Chapter V of the Act including an application for certificate under section 34 shall be in Form ‘D’ and shall be delivered to the Controller either in person or through a recognised agent or sent to his office by registered post.

17. Form of Appeal.

(1) Every appeal to the Rent Control Tribunal under section 38 shall be preferred in the form of memorandum signed by the appellant or his recognised agent and presented either in person or through a recognies agent to the Tribunal or to such office as it may appoint in this behalf.

(2) Every such memorandum shall be accompanied by a copy of the order of the Controller appealed from and shall set forth concisely and under distinct heads, the grounds of objection to the order appealed from without any argument or narrative, and such grounds shall be numbered consecutively.

18. Application for transfer of proceeding.

An application for transfer of proceeding under sub-section (4) of section 38 shall be accompanied by an affidavit of the allegations contained in the application.

19. Appearance before Tribunal.

A party may appear before the Rent Control Tribunal either in person or by a recognised agent provided that if the Rent Control Tribunal so directs the party shall appear in person.

20. Process Fees.

(1) Process fees for processes under the Act shall be levied as prescribed in the rules made by the Punjab High Court under section 20 of the Court Fees Act, 1870, as to cost of processes in civil court.

(2) For the purposes of this rule, the Controller shall be deemed to be a Civil Court of Third Grade and the court of the Rent Control Tribunal shall be deemed to be a Civil Court of Second Grade .

21. Notice relating to sub- tenancy .

A notice creation or termination of sub-tenancy required under section 17 shall be in Form ‘E’.

22. Service of notice, etc.

Unless otherwise provided by the Act, any notice or intimation required or authorised by the Act to be served on any person shall be served,-

(a) By delivering it to the person; or

(d) Construction of buildings or development of land.

23. Code of Civil Procedure to be generally followed.

In deciding any question relating to procedure not specifically provided by the Act and these rules the Controller and the Rent Control Tribunal shall ,as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908.

24. Registers to be maintained by the Controller and Tribunal

The Controller and Rent Control Tribunal shall maintain such of the registers prescribed for use in civil courts in Delhi as may be necessary.

Competition Act

November 30, 2014

Section 1. Short title, extent and commencement

(1) This Act may be called the Competition Act, 2002.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:

Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.

Section 2. Definitions

In this Act, unless the context otherwise requires,—

(a) “acquisition” means, directly or indirectly, acquiring or agreeing to acquire—

(i) shares, voting rights or assets of any enterprise; or

(ii) control over management or control over assets of any enterprise;

(b) “agreement” includes any arrangement or understanding or action in concert,—

(i) whether or not, such arrangement, understanding or action is formal or in writing; or

(ii) whether or not such arrangement, understanding or action is intended to be enforceable by legal proceedings;

(c) “cartel” includes an association of producers, sellers, distributors, traders or service providers who, by agreement amongst themselves, limit, control or attempt to control the production, distribution, sale or price of, or, trade in goods or provision of services;

(d) “Chairperson” means the Chairperson of the Commission appointed under sub-section (1) of section 8;

(e) “Commission” means the Competition Commission of India established under sub-section (1) of section 7;

(f) “consumer” means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, whether such purchase of goods is for resale or for any commercial purpose or for personal use;

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person whether such hiring or availing of services is for any commercial purpose or for personal use;

(g) “Director General” means the Director General appointed under sub-section (1) of section 16 and includes any Additional, Joint, Deputy or Assistant Directors General appointed under that section;

(h) “enterprise” means a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space.

Explanation.-—For the purposes of this clause,—

(a) “activity” includes profession or occupation;

(b) “article” includes a new article and “service” includes a new service;

(c) “unit” or “division”, in relation to an enterprise, includes—

(i) a plant or factory established for the production, storage, supply, distribution, acquisition or control of any article or goods;

(ii) any branch or office established for the provision of any service;

(i) “goods” means goods as defined in the Sale of Goods Act, 1930 (8 of 1930) and includes—

(A) products manufactured, processed or mined;

(B) debentures, stocks and shares after allotment;

(C) in relation to goods supplied, distributed or controlled in India, goods imported into India;

(j) “Member” means a Member of the Commission appointed under sub-section (/) of section8 and includes the Chairperson;

(k) “notification” means a notification published in the Official Gazette;

(l) “person” includes—

(i) an individual;

(ii) a Hindu undivided family;

(iii) a company;

(iv) a firm;

(v) an association of persons or a body of individuals, whether incorporated or not, in India or outside India;

(vi) any corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);

(vii) any body corporate incorporated by or under the laws of a country outside India;

(viii) a co-operative society registered under any law relating to cooperative societies;

(ix) a local authority;

(x) every artificial juridical person, not falling within any of the preceding sub-clauses;

(m) “practice” includes any practice relating to the carrying on of any trade by a person or an enterprise;

(n) “prescribed” means prescribed by rules made under this Act;

(o) “price”, in relation to the sale of any goods or to the performance of any services, includes every valuable consideration, whether direct or indirect, or deferred, and includes any consideration which in effect relates to the sale of any goods or to the performance of any services although ostensibly relating to any other matter or thing;

(p) “public financial institution” means a public financial institution specified under section 4A of the Companies Act, 1956 (1 of 1956) and includes a State Financial, Industrial or Investment Corporation;

(q) “regulations” means the regulations made by the Commission under section 64;

(r) “relevant market” means the market which may be determined by the Commission with reference to the relevant product market or the relevant geographic market or with reference to both the markets;

(s) “relevant geographic market” means a market comprising the area in which the conditions of competition for supply of goods or provision of services or demand of goods or services are distinctly homogenous and can be distinguished from the conditions prevailing in the neighbouring areas;

(t) “relevant product market” means a market comprising all those products or services which are regarded as interchangeable or substitutable by the consumer, by reason of characteristics of the products or services, their prices and intended use;

(u) “service” means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising;

(v) “shares” means shares in the share capital of a company carrying voting rights and includes—

(i) any security which entitles the holder to receive shares with voting rights;

(ii) stock except where a distinction between stock and share is expressed or implied;

(w) “statutory authority” means any authority, board, corporation, council, institute, university or any other body corporate, established by or under any Central, State or Provincial Act for the purposes of regulating production or supply of goods or provision of any services or markets therefor or any matter connected therewith or incidental thereto;

(x) “trade” means any trade, business, industry, profession or occupation relating to the production, supply, distribution, storage or control of goods and includes the provision of any services;

(y) “turnover” includes value of sale of goods or services;

(z) words and expressions used but not defined in this Act and defined in the Companies Act, 1956 (1 of 1956) shall have the same meanings respectively assigned to them in that Act.

Chapter II – Prohibition of Certain Agreements, Abuse of Dominant Position and Regulation of Combinations – Prohibition of agreements

Section 3. Anti competitive agreements

(1) No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.

(2) Any agreement entered into in contravention of the provisions contained in subsection (1) shall be void.

(3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which—

(a) directly or indirectly determines purchase or sale prices;

(b) limits or controls production, supply, markets, technical development, investment or provision of services;

(c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way;

(d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition:

Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.

Explanation.—For the purposes of this sub-section, “bid rigging” means any agreement, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding

(4) Any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provision of services, including—

(a) tie-in arrangement;

(b) exclusive supply agreement;

(c) exclusive distribution agreement;

(d) refusal to deal;

(e) resale price maintenance,

shall be an agreement in contravention of sub-section (1) if such agreement causes or is likely to cause an appreciable adverse effect on competition in India.

Explanation.—For the purposes of this sub-section,—

(a) “tie-in arrangement” includes any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods;

(b) “exclusive supply agreement” includes any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person;

(c) “exclusive distribution agreement” includes any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods;

(d) “refusal to deal” includes any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought;

(e) “resale price maintenance” includes any agreement to sell goods on condition that the prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged.

(5) Nothing contained in this section shall restrict—

(i) the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon him under—

(a) the Copyright Act, 1957 (14 of 1957);

(b) the Patents Act, 1970 (39 of 1970);

(c) the Trade and Merchandise Marks Act, 1958 (43 of 1958) or the Trade Marks Act, 1999 (47 of 1999);

(d) the Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999);

(e) the Designs Act, 2000 (16 of 2000);

(f) the Semi-conductor Integrated Circuits Layout-Design Act, 2000 (37 of 2000);

(ii) the right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provision of services for such export.

Section 4. Abuse of dominant position

Prohibition of abuse of dominant position

(1) No enterprise shall abuse its dominant position.

(2) There shall be an abuse of dominant position under sub-section (1), if an enterprise.—-

(a) directly or indirectly, imposes unfair or discriminatory—

(i) condition in purchase or sale of goods or service; or

(ii) price in purchase or sale (including predatory price) of goods or service,

Explanation.— For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or service referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory condition or price which may be adopted to meet the competition;

or

(b) limits or restricts—

(i) production of goods or provision of services or market therefore; or

(ii) technical or scientific development relating to goods or services to the prejudice of consumers; or

(c) indulges in practice or practices resulting in denial of market access; or

(d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or

(e) uses its dominant position in one relevant market to enter into, or protect, other relevant market.

Explanation.—For the purposes of this section, the expression—

(a) “dominant position” means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to—

(i) operate independently of competitive forces prevailing in the relevant market; or

(ii) affect its competitors or consumers or the relevant market in its favour;

(b) “predatory price” means the sale of goods or provision of services, at a. price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors.

Section 5. Combination

Regulation of combinations

The acquisition of one or more enterprises by one or more persons or merger or amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises, if—

(a) any acquisition where—

(i) the parties to the acquisition, being the acquirer and the enterprise, whose control, shares, voting rights or assets have been acquired or are being acquired jointly have,—

(A) either, in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars;

or

(ii) the group, to which the enterprise whose control, shares, assets or voting rights have been acquired or are being acquired, would belong after the acquisition, jointly have or would jointly have,—

(A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars; or

(b) acquiring of control by a person over an enterprise when such person has already direct or indirect control over another enterprise engaged in production, distribution or trading of a similar or identical or substitutable goods or provision of a similar or identical or substitutable service, if—

(i) the enterprise over which control has been acquired along with the enterprise over which the acquirer already has direct or indirect control jointly have,—

(A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars;

or

(ii) the group, to which enterprise whose control has been acquired, or is being acquired, would belong after the acquisition, jointly have or would jointly have,—

(A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars; or

(C) any merger or amalgamation in which—

(i) the enterprise remaining after merger or the enterprise created as a result of the amalgamation, as the case may be, have,—

(A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees, three thousand crores; or

(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars;

or

(ii) the group, to which the enterprise remaining after the merger or the enterprise created as a result of the amalgamation, would belong after the merger or the amalgamation, as the case may be, have or would have,—

(A) either in India, the assets of the value of more than rupees four-thousand crores or turnover more than rupees twelve thousand crores; or

(B) in I ndia or outside India, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars.

Explanation.— For the purposes of this section,—

(a) “control” includes controlling the affairs or management by—

(i) one or more enterprises, either jointly or singly, over another enterprise or group;

(ii) one or more groups, either jointly or singly, over another group or enterprise;

(b) “group” means two or more enterprises which, directly or indirectly, are in a position to —

(i) exercise twenty-six per cent. or more of the voting rights in the other enterprise; or

(ii) appoint more than fifty percent, of the members of the board of directors in the other enterprise; or

(iii) control the management or affairs of the other enterprise;

(c) the value of assets shall be determined by taking the book value of the assets as shown, in the audited books of account of the enterprise, in the financial year immediately preceding the financial year in which the date of proposed merger falls, as reduced by any depreciation, and the value of assets shall include the brand value, value of goodwill, or value of copyright, patent, permitted use, collective mark, registered proprietor, registered trade mark, registered user, homonymous geographical indication, geographical indications, design or layout-design or similar other commercial rights, if any, referred to in sub-section (5) of section 3.

Section 6. Regulation of combinations

(1) No person or enterprise shall enter into a combination which causes or is likely to cause an appreciable adverse effect on competition within the relevant market in India and such a combination shall be void.

(2) Subject to the provisions contained in sub-section (1), any person or enterprise, who or which proposes to enter into a combination, may, at his or its option, give notice to the Commission, in the form as may be specified, and the fee which may be determined, by regulations, disclosing the details of the proposed combination, within seven days of—

(a) approval of the proposal relating to merger or amalgamation, referred to in clause (c) of section 5, by the board of directors of the enterprises concerned with such merger or amalgamation, as the case may be;

(b) execution of any agreement or other document for acquisition referred to in clause (a) of section 5 or acquiring of control referred to in clause (h) of that section.

(3) The Commission shall, after receipt of notice under sub-section (2), deal with such notice in accordance with the provisions contained in sections 29, 30 and 31.

(4) The provisions of this section shall not apply to share subscription or financing facility or any acquisition, by a public financial institution, foreign institutional investor, bank or venture capital fund, pursuant to any covenant of a loan agreement or investment agreement.

(5) The public financial institution, foreign institutional investor, bank or venture capital fund, referred to in sub-section (4\ shall, within seven days from the date of the acquisition, file, in the form as may be specified by regulations, with the Commission the details of the acquisition including the details of control, the circumstances for exercise of such control and the consequences of default arising out of such loan agreement or investment agreement, as the case may be.

Explanation.—For the purposes of this section, the expression—

(a) “foreign institutional investor” has the same meaning as assigned to it in clause (a) of the Explanation to section 115AD of the Income-tax Act, 1961(43 of 1961);

(b) “venture capital fund” has the same meaning as assigned to it in clause (b) of the Explanation to clause (23 FB) of section 10 of the Income-tax Act, 1961(43 of 1961);.

Chapter III – Competition Commission of India

Section 7. Establishment of Commission

(1) With effect from such date as the Central Government may, by notification, appoint, there shall be established, for the purposes of this Act, a Commission to be called the “Competition Commission of India”.

(2) The Commission shall be a body corporate by the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued,

(3) The head office of the Commission shall be at such place as the Central Government may decide from time to time.

(4) The Commission may establish offices at other places in India.

Section 8. Composition of Commission

(1) The Commission shall consist of a Chairperson and not less than two and not more than ten other Members to be appointed by the Central Government:

Provided that the Central Government shall appoint the Chairperson and a Member during the first year of the establishment of the Commission.

(2) The Chairperson and every other Member shall be a person of ability, integrity and standing and who, has been, or is qualified to be, a judge of a High Court; or, has special knowledge of, and professional experience of not less than fifteen years in international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which, in the opinion of the Central Government, may be useful to the Commission.

(3) The Chairperson and other Members shall be whole-time Members.

Section 9. Selection of Chairperson and other Members

The Chairperson and other Members shall be selected in the manner as may be prescribed.

Section 10. Term of office of Chairperson and other Members

(1) The Chairperson and every other Member shall hold office as such for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment:

Provided that no Chairperson or other Member shall hold office as such after he has attained,—

(a) in the case of the Chairperson, the age of sixty-seven years;

(b) in the case of any other Member, the age of sixty-five years.

(2) A vacancy caused by the resignation or removal of the Chairperson or any other Member under section 11 or by death or otherwise shall be filled by fresh appointment in accordance with the provisions of sections 8 and 9.

(3) The Chairperson and every other Member shall, before entering upon his office, make and subscribe to an oath of office and of secrecy in such form, manner and before such authority, as may be prescribed.

(4) In the event of the occurrence of a vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the senior-most Member shall act as the Chairperson, until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.

(5) When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, the senior-most Member shall discharge the functions of the Chairperson until the date on which the Chairperson resumes the charge of his functions.

Section 11. Resignation, removal and suspension of Chairperson and other members

(1) The Chairperson or any other Member may, by notice in writing under his hand addressed to the Central Government, resign his office:

Provided that the Chairperson or a Member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.

(2) Notwithstanding anything contained in sub-section (1), the Central Government may, by order, remove the Chairperson or any other Member from his office if such Chairperson or Member, as the case may be,—

(a) is, or at any time has been, adjudged as an insolvent; or

(b) has engaged at any time, during his term of office, in any paid employment, or

(c) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or

(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member; or

(e) has so abused his position as to render his continuance in office prejudicial to the public interest;

or

(f) has become physically or mentally incapable of acting as a Member.

(3) Notwithstanding anything contained in sub-section (2), no Member shall be removed from his office on the ground specified in clause (d) or clause (e) of that subsection unless the Supreme Court, on a reference being made to it in this behalf by the Central Government, has, on an inquiry, held by it in accordance with such procedure as may be prescribed in this behalf by the Supreme Court, reported that the Member, ought on such ground or grounds to be removed.

Section 12. Restriction on employment of Chairperson and other Members in certain cases

The Chairperson and other Members shall not, for a period of one year from the ‘ date on which they cease to hold office, accept any employment in, or connected with the management or administration of, any enterprise which has been a party to a proceeding before the Commission under this Act:

Provided that nothing contained in this section shall apply to any employment under the Central Government or a State Government or local authority or in any statutory authority or any corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).

Section 13. Financial and administrative powers of Member Administration

The Central Government shall designate any Member as Member Administration who shall exercise such financial and administrative powers as may be vested in him under the rules made by the Central Government:

Provided that the Member Administration shall have authority to delegate such of his financial and administrative powers as he may think fit to any other officer of the Commission subject to the condition that such officer shall, while exercising such delegated powers continue to act under the direction, superintendence and control of the Member Administration.

Section 14. Salary and allowances and other terms and conditions of service of Chairperson and other Members

(1) The salary, and the other terms and conditions of service, of the Chairperson and other Members, including travelling expenses, house rent allowance and conveyance facilities, sumptuary allowance and medical facilities shall be such as may be prescribed.

(2) The salary, allowances and other terms and conditions of service of the Chairperson or a Member shall not be varied to his disadvantage after appointment.

Section 15. Vacancy, etc. not to invalidate proceedings of Commission

No act or proceeding of the Commission shall be invalid merely by reason of—

(a) any vacancy in, or any defect in the constitution of, the Commission; or

(b) any defect in the appointment of a person acting as a Chairperson or as a Member; or

(c) any irregularity in the procedure of the Commission not affecting the merits of the case.

Section 16. Appointment of Director General, etc.

(1) The Central Government may, by notification, appoint a Director General and as many Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or officers, as it may think fit, for the purposes of assisting the Commission in conducting inquiry into contravention of any of the provisions of this Act and for the conduct of cases before the Commission and for performing such other functions as are, or may be, provided by or under this Act

(2) Every Additional, Joint, Deputy and Assistant Directors General or such other advisers, consultants and officers, shall exercise his powers, and discharge his functions, subject to the general control, supervision and direction of the Director General.

(3) The salary, allowances and other terms and conditions of service of the Director General and Additional, Joint, Deputy and Assistant Directors General or such other advisers, consultants or officers, shall be such as may be prescribed.

(4) The Director General and Additional, Joint, Deputy and Assistant Directors General or such other advisers, consultants or officers shall be appointed from amongst persons of integrity and outstanding ability and who have experience in investigation, and knowledge of .accountancy, management, business, public administration, international trade, law or economics and such other qualifications as may be prescribed.

Section 17. Registrar and officers and other employees of Commission

(1) The Commission may appoint a Registrar and such officers and other employees as it considers necessary for the efficient performance of its functions under this Act.

(2) The salaries and allowances payable to and other terms and conditions of service of the Registrar and officers and other employees of the Commission and the number of such officers and other employees shall be such as may be prescribed.

Chapter IV – Duties, Powers and Functions of Commission

Section 18. Duties of Commission

Subject to the provisions of this Act, it shall be the duty of the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India: Provided that the Commission may, for the purpose of discharging its duties or performing its functions under this Act, enter into any memorandum or arrangement with the prior approval of the Central Government, with any agency of any foreign country.

Section 19. Inquiry into certain agreements and dominant position of enterprise

(1) The Commission may inquire into any alleged contravention of the provisions contained in subsection (1) of section 3 or sub-section (1) of section 4 either on its own motion or on—

(a) receipt of a complaint, accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association; or

(b) a reference made to it by the Central Government or a State Government or a statutory authority.

(2) Without prejudice to the provisions contained in sub-section (1), the powers and functions of the Commission shall include the powers and functions specified in sub-sections (3) to (7).

(3) The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under section 3, have due regard to all or any of the following factors, namely:—

(a) creation of barriers to new entrants in the market;

(b) driving existing competitors out of the market;

(c) foreclosure of competition by hindering entry into the market;

(d) accrual of benefits to consumers;

(e) improvements in production or distribution of goods or provision of services;

(f) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services.

(4) The Commission shall, while inquiring whether an enterprise enjoys a dominant position or not under section 4, have due regard to all or any of the following factors, namely:—

(a) market share of the enterprise;

(b) size and resources of the enterprise;

(c) size and importance of the competitors;

(d) economic power of the enterprise including commercial advantages over competitors;

(e) vertical integration of the enterprises or sale or service network of such enterprises;

(f) dependence of consumers on the enterprise;

(g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise;

(h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers;

(i) countervailing buying power;

(j) market structure and size of market;

(k) social obligations and social costs;

(l) relative advantage, by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition;

(m) any other factor which the Commission may consider relevant for the inquiry.

(5) For determining whether a market constitutes a “relevant market” for the purposes of this Act, the Commission shall have due regard to the “relevant geographic market” and “relevant product market”.

(6) The Commission shall, while determining the “relevant geographic market”, have due regard to all or any of the following factors, namely:—

(a) regulatory trade barriers;

(b) local specification requirements;

(c) national procurement policies;

(d) adequate distribution facilities;

(e) transport costs;

(f) language;

(g) consumer preferences;

(h) need for secure or regular supplies or rapid after-sales services.

(7) The Commission shall, while determining the “relevant product market”, have due regard to all or any of the following factors, namely:—

(a) physical characteristics or end-use of goods;

(b) price of goods or service;

(c) consumer preferences;

(d) exclusion of in-house production;

(e) existence of specialised producers;

(f) classification of industrial products.

Section 20. Inquiry into combination by Commission

(1) The Commission may, upon its own knowledge or information relating to acquisition referred to in clause (a) of section 5 or acquiring of control referred to in clause (b) of section 5 or merger or amalgamation referred to in clause (c) of that section, inquire into whether such a combination has
caused or is likely to cause an appreciable adverse effect on competition in India:

Provided that the Commission shall not initiate any inquiry under this sub-section after the expiry of one year from the date on which such combination has taken effect.

(2) The Commission shall, on receipt of a notice under sub-section (2) of section 6 or upon receipt of a reference under sub-section (1) of section 21, inquire whether a combination referred to in that notice or reference has caused or is likely to cause an appreciable adverse effect on competition in India.

(3) Notwithstanding anything contained in section 5, the Central Government shall, on the expiry of a period of two years from the date of commencement of this Act and thereafter every two years, in consultation with the Commission, by notification, enhance or reduce, on the basis of the wholesale price index or fluctuations in exchange rate of rupee or foreign currencies, the value of assets or the value of turnover, for the purposes of that section.

(4) For the purposes of determining whether a combination would have the effect of or is likely to have an appreciable adverse effect on competition in the relevant market, the Commission shall have due regard to all or any of the following factors, namely:—

(a) actual and potential level of competition through imports in the market;

(b) extent of barriers to entry into the market;

(c) level of combination in the market;

(d) degree of countervailing power in the market;

(e) likelihood that the combination would result in the parties to the combination being able to significantly and sustainably increase prices or profit margins;

(f) extent of effective competition likely to sustain in a market;

(g) extent to which substitutes are available or arc likely to be available in the market;

(h) market share, in the relevant market, of the persons or enterprise in a combination, individually and as a combination;

(i) likelihood that the combination would result in the removal of a vigorous and effective competitor or competitors in the market;

(j) nature and extent of vertical integration in the market;

(k) possibility of a failing business;

(l) nature and extent of innovation;

(m) relative advantage, by way of the contribution to the economic development, by any combination having or likely to have appreciable adverse effect on competition;

(n) whether the benefits of the combination outweigh the adverse impact of the combination, if any.

Section 21. Reference by statutory authority

(1) Where in the course of a proceeding before any statutory authority an issue is raised by any party that any decision which such statutory authority has taken or proposes to take. is or would be, contrary to any of the provisions of this Act, then such statutory authority may make a reference in respect of such issue to the Commission.

(2) On receipt of a reference under sub-section (1), the Commission shall, after hearing the parties to the proceedings, give its opinion to such statutory authority which shall thereafter pass such order on the issues referred to in that sub-section as it deems fit:

Provided that the Commission shall give its opinion under this section within sixty days of receipt of such reference.

Section 22. Benches of Commission

(1) The jurisdiction, powers and authority of the Commission may be exercised by Benches thereof.

(2) The Benches shall be constituted by the Chairperson and each Bench shall consist of not less than two Members.

(3) Every Bench shall consist of at least one Judicial Member.

Explanation.—For the purposes of this sub-section, “Judicial Member” means a Member who is, or has been, or is qualified to be, a Judge of a High Court.

(4) The Bench over which the Chairperson presides shall be the Principal Bench and the other Benches shall be known as the Additional Benches.

(5) There shall be constituted by the Chairperson one or more Benches to be called the Mergers Bench or Mergers Benches, as the case may be, exclusively to deal with matters referred to in sections 5 and 6.

(6) The places at which the Principal Bench, other Additional Bench or Mergers Bench shall ordinarily sit, shall be such as the Central Government may, by notification, specify.

Section 23. Distribution of business of Commission amongst Benches

(1) Where any Benches are constituted, the Chairperson may, from time to time, by order, make provisions as to the distribution of the business of the Commission amongst the Benches and specify the matters, which may be dealt with by each Bench.

(2) If any question arises as to whether any matter falls within the purview of the business allocated to a Bench, the decision of the Chairperson thereon shall be final.

(3) The Chairperson may—

(i) transfer a Member from one Bench to another Bench; or

(ii) authorise the Members of one Bench to discharge also the functions of the Members of other Bench:

Provided that the Chairperson shall transfer, with the prior approval of the Central Government, a Member from one Bench situated in one city to another Bench situated in another city.

(4) The Chairperson may, for the purpose of securing that any case or matter which, having regard to the nature of the questions involved, requires or is required in his opinion or under the rules made by the Central Government in this behalf, to be decided by a Bench composed of more than two Members, issue such general or special orders as he may deem fit.

Section 24. Procedure for deciding a case where Members of a Bench differ in opinion

If the Members of a Bench differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.

Section 25. Jurisdiction of Bench

An inquiry shall be initiated or a complaint be instituted or a reference be made under this Act before a Bench within the local limits of whose jurisdiction—

(a) the respondent, or each of the respondents, where there are more than one, at the time of the initiation of inquiry or institution of the complaint or making of reference, as the case may be, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the respondents, where there are more than one, at the time of the initiation of the inquiry or institution of complaint or making of reference, as the case may be, actually and voluntarily resides or carries on business or personally works for gain provided that in such case either the leave of the Bench is given, or the respondents who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Explanation.—A respondent, being a person referred to in sub-clause (iii) or sub-clause (vi) or sub-clause (vii) or sub-clause (viii) of clause (l) of section 2, shall be deemed to carry on business at its sole or principal place of business in India or at its registered office in India or where it has also a subordinate office at such place.

Section 26. Procedure for inquiry on complaints under Section 19

(1) On receipt of a complaint or a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information, under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter.

(2) The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission.

(3) Where on receipt of a complaint under clause (a) of sub-section (1) of section 19, the Commission is of the opinion that there exists no prima facie case, it shall dismiss the complaint and may pass such orders as it deems fit, including imposition of costs, if necessary.

(4) The Commission shall forward a copy of the report referred to in sub-section (2) to the parties concerned or to the Central Government or the State Government or the statutory authority, as the case may be.

(5) If the report of the Director General relates on a complaint and such report recommends that there is no contravention of any of the provisions of this Act, the complainant shall be given an opportunity to rebut the findings of the Director General.

(6) If, after hearing the complainant, the Commission agrees with the recommendation of the Director General, it shall dismiss the complaint.

(7) If, after hearing the complainant, the Commission is of the opinion that further inquiry is called for, it shall direct the complainant to proceed with the complaint.

(8) If the report of the Director General relates on a reference made under sub-section (/) and such report recommends that there is no contravention of the pro visions of this Act, the Commission shall invite comments of the Central Government or the State Government or the statutory authority, as the case may be, on such report and on receipt of such comments, the Commission shall return the reference if there is no prima facie case or proceed with the reference as a complaint if there is a prima facie case.

(9) If the report of the Director General referred to in sub-section (2) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act.

Section 27. Orders by Commission after inquiry into agreements or abuse of dominant position

Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely:—

(a) direct any enterprise or’association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, t’o discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be;

(b) impose such penalty, as it may deem fit which shall be not more than ten per cent. of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse:

Provided that in case any agreement referred to in section 3 has been entered into by any cartel, the Commission shall impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty equivalent to three times of the amount of profits made out of such agreement by the cartel or ten per cent. of the average of the turnover of the cartel for the last preceding three financial years, whichever is higher;

(c) award compensation to parties in accordance with the provisions contained in section 34;

(d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission;

(e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any:

(f) recommend to the Central Government for the division of an enterprise enjoying dominant position;

(g) pass such oilier order as it may deem fit.

Section 28. Division of enterprise enjoying dominant position

(1) The Central Government, on recommendation under clause (f) of section 27, may, notwithstanding anything contained in any other law for the time being in force, by order in writing, direct division of an enterprise enjoying dominant position to ensure that such enterprise does not abuse its dominant
position.

(2) In particular, and without prejudice to the generality of the foregoing powers, the order referred to in sub-section (1) may provide for all or any of the following matters, namely:—

(a) the transfer or vesting of property, rights, liabilities or obligations;

(b) the adjustment of contracts either by discharge or reduction of any liability or obligation or otherwise;

(c) the creation, allotment, surrender or cancellation of any shares, stocks or securities;

(d) the payment of compensation to any person who suffered any loss due to dominant position of such enterprise;

(e) the formation or winding up of an enterprise or the amendment of the memorandum of association or articles of association or any other instruments regulating the business of any enterprise;

(f) the extent to which, and the circumstances in which, provisions of the order affecting an enterprise may be altered by the enterprise and the registration thereof;

(g) any other matter which may be necessary to give effect to the division of the enterprise.

(3) Notwithstanding anything contained in any other law for the time being in force or in any contract or in any memorandum or articles of association, an officer of a company who ceases to hold office as such in consequence of the division of an enterprise shall not be entitled to claim any compensation for such cesser.

Section 29. Procedure for investigation of combination

(1) Where the Commission is of the opinion that a combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in India, it shall issue a notice to show cause to the parties to combination calling upon them to respond within thirty days of the receipt of the notice, as to why investigation in respect of such combination should not be conducted.

(2) The Commission, if it is prima facie of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition, it shall, within seven working days from the date of receipt of the response of the parties to the combination, direct the parties to the said combination to publish details of the combination within ten working days of such direction, in such manner, as it thinks appropriate, for bringing the combination to the knowledge or information of the public and persons affected or likely to be affected by such combination.

(3) The Commission may invite any person or member of the public, affected or likely to be affected by the said combination, to file his written objections, if any, before the Commission within fifteen working days from the date on which the details of the combination were published under sub-section (2).

(4) The Commission may, within fifteen working days from the expiry of the period specified in sub-section (3), call for such additional or other information as it may deem fit from the parties to the said combination.

(5) The additional or other information called for by the Commission shall be furnished by the parties referred to in sub-section (4) within fifteen days from the expiry of the period specified in sub-section (4).

(6) After receipt of all information and within a period of forty-five working days from the expiry of the period specified in sub-section (5), the Commission shall proceed to deal with the case in accordance with the provisions contained in section 31.

Section 30. Inquiry into disclosures under sub-section (2) of section 6

Where any person or enterprise has given a notice under sub-section (2) of section 6. The Commission shall inquire—

(a) whether the disclosure made in the notice is correct;

(b) whether the combination has, or is likely to have, an appreciable adverse effect on competition.

Section 31. Orders of Commission on certain combinations

(1) Where the Commission is of the opinion that any combination does not, or is not likely to, have an appreciable adverse effect on competition, it shall, by order, approve that combination including the combination in respect of which a notice has been given under sub-section (2) of section 6.

(2) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition, it shall direct that the combination shall not take effect.

(3) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, it may propose appropriate modification to the combination, to the parties to such
combination.

(4) The parties, who accept the modification proposed by the Commission under subsection (3), shall carry out such modification within the period specified by the Commission.

(5) If the parties to the combination, who have accepted the modification under subsection (4), fail to carry out the modification within the period specified by the Commission, such combination shall be deemed to have an appreciable adverse effect on competition and the Commission shall deal with such combination in accordance with the provisions of this Act.

(6) If the parties to the combination do not accept the modification proposed by the Commission under sub-section (3), such parties may, within thirty working days of the modification proposed by the Commission, submit amendment to the modification proposed by the Commission under that sub-section.

(7) If the Commission agrees with the amendment submitted by the parties under subsection (6), it shall, by order, approve the combination.

(8) If the Commission does not accept the amendment submitted under sub-section (6), then, the parties shall be allowed a further period of thirty working days within which such parties shall accept the modification proposed by the Commission under sub-section (3).

(9) If the parties fail to accept the modification proposed by the Commission within thirty working days referred to in sub-section (6) or within a further period of thirty working days referred to in sub-section (8), the combination shall be deemed to have an appreciable adverse effect on competition and be dealt with in accordance with the provisions of this Act.

(10) Where the Commission has directed under sub-section (2) that the combination shall not take effect or the combination is deemed to have an appreciable adverse effect on competition under sub-section (9), then, without prejudice to any penalty which may be imposed or any prosecution which may be initiated under this Act, the Commission may order that—

(a) the acquisition referred to in clause (a) of section 5; or

(b) the acquiring of control referred to in clause (b) of section 5; or

(c) the merger or amalgamation referred to in clause (c) of section 5, shall not be given effect to:

Provided that the Commission may, if it considers appropriate, frame a scheme to implement its order under this sub-section.

(11) If the Commission does not, on the expiry of a period of ninety working days from the date of publication referred to in sub-section (2) of section 29, pass an order or issue direction in accordance with the provisions of sub-section (1) or sub-section (2) or sub-section (7), the combination shall be deemed to have been approved by the Commission.

Explanation.—For the purposes of determining the period of ninety working days specified in this subsection, the period of thirty working days specified in sub-section (6) and a further period of thirty working days specified in sub-section (8) shall be excluded.

(12) Where any extension of time is sought by the parties to the combination, the period of ninety working days shall be reckoned after deducting the extended time granted at the request of the parties.

(13) Where the Commission has ordered a combination to be void, the acquisition or acquiring of control or merger or amalgamation referred to in section 5, shall be dealt with by the authorities under any other law for the time being in force as if such acquisition or acquiring of control or merger or amalgamation had not taken place and the parties to the combination shall be dealt with accordingly.

(14) Nothing contained in this Chapter shall affect any proceeding initiated or which may be initiated under any other law for the time being in force.

Section 32. Acts taking place outside India but having an effect on competition in India

The Commission shall, notwithstanding that,—

(a) an agreement referred to in section 3 has been entered into outside India; or

(b) any party to such agreement is outside India; or

(c) any enterprise abusing the dominant position is outside India; or

(d) a combination has taken place outside India; or

(e) any party to combination is outside India; or

(f) any other matter or practice or action arising out of such agreement or dominant position or combination is outside India, have power to inquire into such agreement or abuse of dominant position or combination if such agreement or dominant position or combination has, or is likely to have, an appreciable adverse effect on competition in the relevant market in India.

Section 33. Power to grant interim relief

(1) Where during an inquiry before the Commission, it is proved to the satisfaction of the Commission, by affidavit or otherwise, that an act in contravention of sub-section (1) of section 3 or sub-section (1) of section 4 or section 6 has been committed and continues to be committed or that such act is about to be committed, the Commission may, by order, grant a temporary injunction restraining any party from carrying on such act until the conclusion of such inquiry or until further orders, without giving notice to the opposite party, where it deems it necessary.

(2) Where during the inquiry before the Commission it is proved to the satisfaction of the Commission by affidavit or otherwise that import of any goods is likely to contravene sub-section (1) of section 3 or subsection (1) of section 4 or section 6, it may, by order, grant a temporary injunction restraining any party from importing such goods until the conclusion of such inquiry or until further orders, without giving notice to the opposite party, where it deems it necessary and a copy of such order granting temporary injunction shall be sent to the concerned authorities.

(3) The provisions of rules 2A to 5 (both inclusive) of Order XXXIX of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall, as far as may be, apply to a temporary injunction issued by the Commission under this Act, as they apply to a temporary injunction issued by a civil court, and any reference in any such rule to a suit shall be construed as a reference to any inquiry before the Commission.

Section 34. Power to award compensation

(1) Without prejudice to any other provisions contained in this Act, any person may make an application to the Commission for an order for the recovery of compensation from any enterprise for any loss or damage shown to have been suffered, by such person as a result of any contravention of the provisions of Chapter II, having been committed by such enterprise.

(2) The Commission may, after an inquiry made into the allegations mentioned in the application made under sub-section (1), pass an order directing the enterprise to make payment to the applicant, of the amount determined by it as realisable from the enterprise as compensation for the loss or damage caused to the applicant as a result of any contravention of the provisions of Chapter II having been committed by such enterprise.

(3) Where any loss or damage referred to in sub-section (1) is caused to numerous persons having the same interest, one or more of such persons may, with the permission of the Commission, make an application under that sub-section for and on behalf of, or for the benefit of, the persons so interested, and thereupon, the provisions of rule 8 of Order 1 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall apply subject to the modification that every reference therein to a suit or decree
shall be construed as a reference to the application before the Commission and the order of the Commission thereon.

Section 35. Appearance before Commission

A complainant or defendant or the Director General may either appear in person or authorise one or more chartered accountants or company secretaries or cost accountants or legal practitioners or any of his or its officers to present his or its case before the Commission.

Explanation.—For the purposes of this section,—

(a) “chartered accountant” means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;

(b) “company secretary” means a company secretary as defined in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980 (56 of 1980) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;

(c) “cost accountant” means a cost accountant as defined in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;

(d) “legal practitioner” means an advocate, vakil or an attorney of any High Court, and includes a pleader in practice.

Section 36. Power of Commission to regulate its own procedure

(1) The Commission shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules made by the Central Government, the Commission shall have powers to regulate its own procedure including the places at which they shall have their sittings, duration of oral hearings when granted, and times of its inquiry.

(2) The Commission shall have, for the purposes of discharging its functions umder this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908(5 of 1908), while trying a suit, in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) issuing commissions for the examination of witnesses or documents;

(e) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;

(f) dismissing an application in default or deciding it ex parte;

(g) any other matter which may be prescribed.

(3) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Commission shall be deemed to be a civil court for the purposes of section 195 (2 of 1974) and Chapter XXVI of the Code of Criminal Procedure, 1973.

(4) The Commission may call upon such experts, from the fields of economics, commerce, accountancy, international trade or from any other discipline as it deems necessary, to assist the Commission in the conduct of any inquiry or proceeding before it.

(5) The Commission may direct any person—

(a) to produce before the Director General or the Registrar or an officer authorised by it, such,books, accounts or other documents in the custody or under the control of such person so directed as may be specified or described in the direction, being documents relating to any trade, the examination of which may be required for the purposes of this Act;

(b) to furnish to the Director General or the Registrar or any officer authorised by it, as respects the trade or such other information as may be in his possession in relation to the trade carried on by such person, as may be required for the purposes of this Act.

(6) If the Commission is of the opinion that any agreement referred to in section 3 or “abuse of dominant position referred to in section 4 or the combination referred to in section 5 has caused or is likely to cause an appreciable adverse effect on competition in the relevant market in India and it is necessary to protect, without further delay, the interests of consumers and other market participants in India, it may conduct an inquiry or adjudicate upon any matter under this Act after giving a reasonable oral hearing to the parties concerned.

Section 37. Review of orders of Commission

Any person aggrieved by an order of the Commission from which an appeal is allowed by this Act but no appeal has been preferred, may, within thirty days from the date of the order, apply to the Commission for review of its order and the Commission may make such order thereon as it thinks fit:

Provided that the Commission may entertain a review application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from preferring the application in time:

Provided further that no order shall be modified or set aside without giving an opportunity of being heard to the person in whose favour the order is given and the Director General where he was a party to the proceedings.

Section 38. Rectification of orders

(1) With a view to rectifying any mistake apparent from the record, the Commission may amend any order passed by it under the provisions of this Act.

(2) Subject to the other provisions of this Act, the Commission may make—

(a) an amendment under sub-section (1) of its own motion;

(b) an amendment for rectifying any such mistake which has been brought to its notice by any party to the order.

Explanation.—- For the removal of doubts, it is hereby declared that the Commission shall not, while rectifying any mistake apparent from record, amend substantive part of its order passed under the provisions of this Act.

Section 39. Execution of orders of Commission

Every order passed by the Commission under this Act shall be enforced by the Commission in the same manner as if it were a decree or order made by a High Court or the principal civil court in a suit pending therein and it shall be lawful for the Commission to send, in the event of its inability to execute it, such order to the High Court or the principal civil court, as the case may be, within the local limits of whose jurisdiction,—

(a) in the case of an order against a person referred to in sub-clause (iii) or sub-clause (vi) or subclause (vii) of clause (l) of section 2, the registered office or the sole or principal place of business of the person in India or where the person has also a subordinate office, that subordinate office, is
situated;

(c) in the case of an order against any other person, the place, where the person concerned voluntarily resides or carries on business or personally works for gain, is situated, and thereupon the court to which the order is so sent shall execute the order as if it were a decree or order sent to it for execution.

Section 40. Appeal

Any person aggrieved by any decision or order of the Commission may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Commission to him on one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908):

Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days:

Provided further that no appeal shall lie against any decision or order of the Commission made with the consent of the parties.

Chapter V – Duties of Director General

Section 41. Director General to investigate contravention

(1) The Director General shall, when so directed by the Commission, assist the Commission in investigating into any contravention of the provisions of this Act or any rules or regulations made thereunder.

(2) The Director General shall have all the powers as are conferred upon the Commission under subsection (2) of section 36.

(3) Without prejudice to the provisions of sub-section (2), sections 240 and 240A of the Companies Act, 1956 (1 of 1956), so far as may be, shall apply to an investigation made by the Director General or any other person investigating under his authority, as they apply to an inspector appointed under that Act.

Chapter VI – Penalties

Section 42. Contravention of orders of Commission

(1) Without prejudice to the provisions of this Act, if any person contravenes, without any reasonable ground, any order of the Commission, or any condition or restriction subject to which any approval, sanction, direction or exemption in relation to any matter has been accorded, given, made or granted under this Act or fails to pay the penalty imposed under this Act, he shall be liable to be detained in civil prison for a term which may extend to one year, unless in the meantime the Commission directs his release and he shall also be liable to a penalty not exceeding rupees ten lakhs.

(2) The Commission may, while making an order under this Act, issue such directions to any person or authority, not inconsistent with this Act, as it thinks necessary or desirable, for the proper implementation or execution of the order, and any person who commits breach of. or fails to comply with, any obligation imposed on him under such direction, may be ordered by the Commission to be detained in civil prison for a term not exceeding one year unless in the meantime the Commission directs his release and he shall also be liable to a penalty not exceeding rupees ten lakhs.

Section 43. Penalty for failure to comply with directions of Commission and Director General

If any person fails to comply with a direction given by—

(a) the Commission under sub-section (5) of section 36; or

(b) the Director General while exercising powers referred to in sub-section (2) of section 41, the Commission shall impose on such person a penalty of rupees one lakh for each day during which such failure continues.

Section 44. Penalty for making false statement or omission to furnish material information

If any person, being a party to a combination,—

(a) makes a statement which is false in any material particular, or knowing it to be false; or

(b) omits to state any material particular knowing it to be material, such person shall be liable to a penalty which shall not be less than rupees fifty lakhs but which may extend to rupees one crore, as may be determined by the Commission.

Section 45. Penalty for offences in relation to furnishing of information

(1) Without prejudice to the provisions of section 44, if any person, who furnishes or is required to furnish under this Act any particulars, documents or any information,—

(a) makes any statement or furnishes any document which he knows or has reason to believe to be false in any material particular; or

(b) omits to state any material fact knowing it to be material; or

(c) wilfully alters, suppresses or destroys any document which is required to be furnished as aforesaid, the Commission shall impose on such person a penalty which may extend to rupees ten lakhs.

(2) Without prejudice to the provisions of sub-section (1), the Commission may also pass such other order as it deems fit.

Section 46. Power to impose lesser penalty

The Commission may, if it is satisfied that any producer, seller, distributor, trader or service provider included in any cartel, which is alleged to have violated section 3, has made a full and true disclosure in respect of the alleged violations and such disclosure is vital, impose upon such producer, seller, distributor, trader or service provider a lesser penalty as it may deem fit, than leviable under this Act or the rules or the regulations:

Provided that lesser penalty shall not be imposed by the Commission in cases where proceedings for the violation of any of the provisions of this Act or the rules or the regulations have been instituted or any investigation has been directed to be made under section 26 before making of such disclosure:

Provided further that lesser penalty shall be imposed by the Commission only in respect of a producer, seller, distributor, trader or service provider included in the cartel, who first made the full, true and vital disclosures under this section:

Provided also that the Commission may, if it is satisfied that such producer, seller, distributor, trader or service provider included in the cartel had in the course of proceedings,—

(a) not complied with the condition on which the lesser penalty was imposed by the Commission; or

(b) had given false evidence; or

(c) the disclosure made is not vital,

and thereupon such producer, seller, distributor, trader or service provider may be tried for the offence with respect to which the lesser penalty was imposed and shall also be liable to the imposition of penalty to which such person has been liable, had lesser penalty not been imposed.

Section 47. Crediting sums realised by way of penalties to Consolidated Fund of India

All sums realised by way of penalties under this Act shall be credited to the Consolidated Fund of India.

Section 48. Contravention by companies

(1) Where a person committing contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable lo any punishment if he proves that the contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such contravention.

(2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that contravention and shall be liable to be proceeded against and punished accordingly.

Explanation.—For the purposes of this section,—

(a)”company” means a body corporate and includes a firm or other association of individuals: and

(b) “director”, in relation to a firm, means a partner in the firm.

Chapter VII – Competition Advocacy

Section 49. Competition advocacy

(1) In formulating a policy on competition (including review of laws related to competition), the Central Government may make a reference to the Commission for its opinion on possible effect of such policy on competition and on receipt of such a reference, the Commission shall, within sixty days of making such reference, give its opinion to the Central Government, which may thereafter formulate the policy as it deems fit.

(2) The opinion given by the Commission under sub-section (1) shall not be binding upon the Central Government in formulating such policy.

(3) The Commission shall take suitable measures, as may be prescribed, for the promotion of competition advocacy, creating awareness and imparting training about competition issues.

Chapter VIII – Finance, Accounts and Audit

Section 50. Grants by Central Government

The Central Government may, after due appropriation made by Parliament by law in this behalf, make to the Commission grants of such sums of money as the Government may think fit for being utilised for the purposes of this Act.

Section 51. Constitution of Fund

(1) There shall be constituted a fund to be called the “Competition Fund” and there shall be credited thereto—

(a) all Government grants received by the Commission;

(b) the monies received as costs from parties to proceedings before the Commission;

(d) the fees received under this Act;

(e) the interest accrued on the amounts referred to in clauses (a) to (c).

(2) The Fund shall be applied for meeting—

(a) the salaries and allowances payable to the Chairperson and other Members and the administrative expenses including the salaries, allowances and pension payable to the Director General, Additional, Joint, Deputy or Assistant Directors General, the Registrar and” officers and other employees of the Commission;

(b) the other expenses of the Commission in connection with the discharge of its functions and for the purposes of this Act.

(3) The Fund shall be administered by a committee of such Members of the Commission as may be determined by the Chairperson.

(4) The committee appointed under sub-section (3) shall spend monies out of the Fund for carrying out the objects for which the Fund has been constituted.

Section 52. Accounts and Audit

(1)The Commission shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India.

(2) The accounts of the Commission shall be audited by the Comptroller and Auditor-General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Commission to the Comptroller and Auditor-General of India.

Explanation.—For the removal of doubts, it is hereby declared that the orders of the Commission, being matters appealable to the Supreme Court, shall not be subject to audit under this section.

(3) The Comptroller and Auditor-General of India and any other person appointed by him in connection with the audit of the accounts of the Commission shall have the same rights, privileges and authority in connection with such audit as the Comptroller and Auditor-General of India generally has, in connection with the audit of the Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Commission.

(4) The accounts of the Commission as certified by the Comptroller and Auditor-General of India or any other person appointed by him in this behalf together with the audit report thereon shall be forwarded annually to the Central Government and that Government shall cause the same to be laid before each House of Parliament.

Section 53. Furnishing of returns, etc., to Central Government

(1) The Commission shall furnish to the Central Government at such time and in such form and manner as may be prescribed or as the Central Government may direct, such returns and statements and such particulars in regard to any proposed or existing measures for the promotion of competition advocacy, creating awareness and imparting training about competition issues, as the Central Government may, from time to time, require.

(2) The Commission shall prepare once in every year, in such form and at such time as may be prescribed, an annual report giving a true and full account of its activities during the previous year and copies of the report shall be forwarded to the Central Government.

(3) A copy of the report received under sub-section (2) shall be laid, as soon as may be after it is received, before each House of Parliament.

Chapter IX – Miscellaneous

Section 54. Power to exempt

The Central Government may, by notification, exempt from the application of this Act, or any provision thereof, and for such period as it may specify in such notification—

(a) any class of enterprises if such exemption is necessary in the interest of security of the State or public interest;

(b) any practice or agreement arising out of and in accordance with any obligation assumed by India under any treaty, agreement or convention with any other country or countries;

(c) any enterprise which performs a sovereign function on behalf of the Central Government or a State Government:

Provided that in case an enterprise is engaged in any activity including the activity relatable to the sovereign functions of the Government, the Central Government may grant exemption only in respect of activity relatable to the sovereign functions.

Section 55. Power of Central Government to issue directions

(1) Without prejudice to the foregoing provisions of this Act, the Commission shall, in exercise of its powers or the performance of its functions under this Act, be bound by such directions on questions of policy, other than those relating to technical and administrative matters, as the Central Government may give in writing to it from time to time:

Provided that the Commission shall, as far as practicable, be given an opportunity to express its views before any direction is given under this sub-section.

(2) The decision of the Central Government whether a question is one of policy or not shall be final.

Section 56. Power of Central Government to supersede Commission

(1) If at any time the Central Government is of the opinion—

(a) that on account of circumstances beyond the control of the Commission, it is unable to discharge the functions or perform the duties imposed on it by or under the provisions of this Act; or

(b) that the Commission has persistently made default in complying with any direction given by the Central Government under this Act or in the discharge of the functions or performance of the duties imposed on it by or under the provisions of this Act and as a result of such default the financial position of the Commission or the administration of the Commission has suffered; or

(c) that circumstances exist which render it necessary in the public interest so to do, the Central Government may, by notification and for reasons to be specified therein, supersede the Commission for such period, not exceeding six months, as may be specified in the notification:

Provided that before issuing any such notification, the Central Government shall give a reasonable opportunity to the Commission to make representations against the proposed supersession and shall consider representations, if any, of the Commission.

(2) Upon the publication of a notification under sub-section (1) superseding the Commission,—

(a) the Chairperson and other Members shall as from the date of supersession, vacate their offices as such;

(b) all the powers, functions and duties which may, by or under the provisions of this Act, be exercised or discharged by or on behalf of the Commission shall, until the Commission is reconstituted under sub-section (3), be exercised and discharged by the Central Government or such authority as the Central Government may specify in tins behalf;

(c) all properties owned or controlled by the Commission shall, until the Commission is reconstituted under sub-section (3), vest in the Central Government.

(3) On or before the expiration of the period of supersession specified in the notification issued under subsection (1), the Central Government shall reconstitute the Commission by a fresh appointment of its Chairperson and other Members and in such case any person who had vacated his office under clause (a) of sub-section (2) shall not be deemed to be disqualified for re-appointment.

(4) The Central Government shall cause a notification issued under sub-section (1) and a full report of any action taken under this section and the circumstances leading to such action to be laid before each House of Parliament at the earliest.

Section 57. Restriction on disclosure of information

No information relating to any enterprise, being an information which has been obtained by or on behalf of the Commission for the purposes of this Act, shall, without the previous permission in writing of the enterprise, be disclosed otherwise than in compliance with or for the purposes of this Act or any other law for the time being in force.

Section 58. Members, Director General, Registrar, officers and other employees, etc. of Commission to be public servants

The Chairperson and other Members and the Director General, Additional, Joint, Deputy or Assistant Directors General and Registrar and officers and other employees of the Commission shall be deemed, while acting or purporting to act in pursuance of any of the provisions of this Act, to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

Section 59. Protection of action taken in good faith

No suit, prosecution or other legal proceedings shall lie against the Central Government or Commission or any officer of the Central Government or the Chairperson or any Member or the Director-General, Additional, Joint, Deputy or Assistant Directors General or Rcgistrar or officers or other employees of the Commission for anything which is in good faith done or intended to be done under this Act or the rules or regulations made thereunder.

Section 60. Act to have overriding effect

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

Section 61. Exclusion of jurisdiction of civil courts

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Commission is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

Section 62. Application of other laws not barred

The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.

Section 63. Power to make rules

(1) The Central Government may, by notification, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-—

(a) the manner in which the Chairperson and other Members shall be selected under section 9;

(b) the form and manner in which and the authority before whom the oath of office and of secrecy shall be made and subscribed to under sub-section (3) of section 10;

(c) the financial and administrative powers which may be vested in the Member Administration under section 13;

(d) the salary and the other terms and conditions of service including travelling expenses, house rent allowance and conveyance facilities, sumptuary allowance and medical facilities to be provided to the Chairperson and other Members under sub-section (1) of section 14;

(e) the salary, allowances and other terms and conditions of service of the Director General, Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or officers under sub-section (3) of section 16;

(f) the qualifications for appointment of the Director General, Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or officers under sub-section (4) of section 16;

(g) the salaries and allowances and other terms and conditions of service of the Registrar and officers and other employees payable, and the number of such officers and employees under sub-section (2) of section 17;

(h) for securing any case or matter which requires to be decided by a Bench composed of more than two Members under sub-section (4) of section 23;

(i) any other matter in respect of which the Commission shall have power under clause (g) of subsection (2) of section 36;

(j) the promotion of competition advocacy, creating awareness and imparting training about competition issues under sub-section (3) of section 49;

(k) the form in which the annual statement of accounts shall be prepared under sub-section (1) of section 52;

(l) the time within which and the form and manner in which the Commission may furnish returns, statements and such particulars as the Central Government may require under sub-section (1) of section 53;

(m) the form in which and the time within which the annual report shall be prepared under sub-section (2) of section 53;

(n) the manner in which the monies transferred to the Central Government shall be dealt with by that Government under the fourth proviso to sub-section (2) of section 66;

(o) any other matter which is to be, or may be, prescribed, or in respect of which provision is to be, or may be, made by rules.

(3) Every notification issued under sub-section (3) of section 20 and section 54 and every rule made under this Act by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session, or in two or more successive sessions, and if. before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or rule, or both Houses agree that the notification should not be issued or rule should not be made, the notification or rule shall thereafter have effect only in such modified form or
be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification or rule, as the case may be.

Section 64. Power to make regulations

(1) The Commission may, by notification, make regulations consistent with tills Act and the rules made thereunder to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing provisions, such regulations may provide for all or any of the following matters, namely:—

(a) the cost of production to be determined under clause (b) of the Explanation to section 4;

(b) the form of notice as may be specified and the fee which may be determined under sub-section (2) of section 6;

(c) the form in which details of the acquisition shall be filed under subsection (5) of Section 6;

(d) the fee which may be determined under clause (a) of sub-section (1) of section 19;

(e) any other matter in respect of which provision is to be, or may be, made by regulations.

(3) Every regulation made under this Act shall be laid, as soon as may be after it is made. before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation, or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.

Section 65. Power to remove difficulties

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as may appear to it to be necessary for removing the difficulty:

Provided that no such order shall be made under this section after the expiry of a period of two years from the commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

Section 66. Repeal and saving

(1) The Monopolies and Restrictive Trade Practices Act, 1969 is hereby repealed and the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of section 5 of the said Act
(hereinafter referred to as the repealed Act) (54 of 1969) shall stand dissolved.

(2) On the dissolution of the Monopolies and Restrictive Trade Practices Commission, the person appointed as the Chairman of the Monopolies and Restrictive Trade Practices Commission and every other person appointed as Member and Director General of Investigation and Registration, Additional, Joint, Deputy, or Assistant Directors General of Investigation and Registration and any officer and other employee of that Commission and holding office as such immediately before such dissolution shall vacate their respective offices and such Chairman and other Members shall be entitled to claim compensation not exceeding three months’ pay and allowances for the premature termination of term of their office or of any contract of service:

Provided that the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices Commission appointed on deputation basis to the Monopolies and Restrictive Trade Practices Commission, shall, on such dissolution, stand reverted to his parent cadre, Ministry or Department, as the case may be:

Provided further that the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices Commission, employed on regular basis by the Monopolies and Restrictive Trade Practices Commission, shall become, on and from such dissolution, the officer and employee, respectively, of the Central Government with the same rights and privileges as to pension, gratuity and other like matters as would have been admissible to him if the rights in relation to such Monopolies and Restrictive Trade Practices Commission had not been transferred to, and vested in, the Central Government and shall continue to do so unless and until his employment in the Central Government is duly terminated or until his remuneration, terms and conditions of employment are duly altered by that Government:

Provided also that notwithstanding anything contained in the Industrial Disputes Act, 1947(14 of 1947), or in any other law for the time being in force, the transfer of the services of any Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee, employed in the Monopolies and Restrictive Trade Practices Commission, to the Central Government shall not entitle such Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee any compensation under this Act or any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority:

Provided also that where the Monopolies and Restrictive Trade Practices Commission has established a provident fund, superannuation, welfare or other fund for the benefit of the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or the officers and other employees employed in the Monopolies and Restrictive Trade Practices Commission, the monies relatable to the-officers and other employees whose services have been transferred by or under this Act to the Central Government shall, out of the monies standing, on the dissolution of the Monopolies and Restrictive Trade Practices Commission to the credit of such provident fund, superannuation, welfare or other fund, stand transferred to, and vest in, the Central Government and such monies which stand so transferred shall be dealt with by the said Government in such manner as may be prescribed.

(3) All cases pertaining to monopolistic trade practices or restrictive trade practices pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement’of this Act, including such cases, in which any unfair trade practice has also been alleged, shall, on such commencement, stand transferred to the Competition Commission of India and shall be adjudicated by that Commission in accordance with the provisions of the repealed Act as if that Act had not been repealed.

(4) Subject to the provisions of sub-section (3), all cases pertaining to unfair trade practices other than those referred to in clause (x) of sub-section (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement of this Act shall, on such commencement, stand transferred to the National Commission constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission shall dispose of such cases as if they were cases filed under that Act:

Provided that the National Commission may, if it considers appropriate, transfer any case transferred to it under this sub-section, to the concerned State Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986) and that State Commission shall dispose of such case as if it was filed under that Act.

(5) All cases pertaining to unfair trade practices referred to in clause (x) of sub-section (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India, and the Competition Commission of India shall dispose of such cases as if they were cases filed under that Act,

(6) All investigations or proceedings, other than those relating to unfair trade practices, pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India, and the Competition Commission of India may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.

(7) All investigations or proceedings, relating to unfair trade practices, other than those referred to in clause (x) of sub-section (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969(54 of 1969) and pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the National Commission constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.

(8) All investigations or proceedings relating to unfair trade practices referred to in clause (x) of subsection (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969(54 of 1969), and pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India and the Competition Commission of India may conduct or order for conduct of such investigation in the manner as it deems fit.

(9) Save as otherwise provided under sub-sections (3) to (8), all cases or proceedings pending before the Monopolies and Restrictive Trade Practices Commission shall abate.

(10) The mention of the particular matters referred to in sub-sections (3) to (8) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal.

Guardians and Wards Act

November 30, 2014

Chapter I – Preliminary

Section 1. Title, extent and commencement.

(1)This Act may be called the Guardians and Wards Act, 1890.

(2) It extends to the whole of India ¹[except the State of Jammu and Kashmir] ²[***]; ³[***].

(3) It shall come into force on the first day of July, 1890.

—————

1. Subs. by Act 3 of 1951, sec. 3 and Schedule, for “except Part B States’’.

2. Repealed by the A.O., 1948, for the words “inclusive of Brit­ish Baluchistan”.

3. The word “and” omitted by Act 40 of 1949, sec. 3 and Sch. II.

Section 2. (Repealed by the Repealing Act, 1938 (1 of 1938), sec. 2 and Schedule).

(Repealed by the Repealing Act, 1938 (1 of 1938), sec. 2 and Schedule)

Section 3. Saving of jurisdiction of Courts of Wards and Chartered High Courts.

This Act shall be read subject to every enactment here­tofore or hereafter passed relating to any Court of Wards by ¹[any competent Legislature, authority or person in ²[any State to which this Act extends]]; and nothing in this Act shall be construed to effect or in any way derogate from, the jurisdiction or authority of any Court of Wards, or to take away any power possessed by ³[any High Court ⁴[***]].

—————

1. Subs. by the A.O., 1937 for “the Governor-General in Council or by a Governor or Lieutenant-Governor in Council”.

2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “Part A States and Part C States”.

3. Subs. by the A.O., 1937, for “any High Court established under the Statutes 24 and 25 Victoria, Chapter 104 (an Act for estab­lishing High Courts of Judicature in India)”.

4. The words “established in Part A States and Part C States’’, omitted by Act 3 of 1951, sec. 3 and Sch.

Section 4. Definitions.

In this Act, unless there is something repugnant in the subject or context-

(1) “Minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority.

2. “Guardian” means minor for whose person or property or both there is a guardian.

3. “Ward” means a minor for whose person or property or both there is a guardian.

4. “District Court” has the meaning assigned to that expression in the code of Civil Procedure, 1882 (14 of 1882)¹, and includes a High Court in the exercise of its ordinary original civil jurisdiction,

²5. “The Court” means-

(a) The District Court having jurisdiction to entertain an application under

this Act for an order appointing or declaring a person to be a guardian, or

(b) Where a guardian has been appointed or declared in pursuance of any such application-

(i) The Court which, or the Court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian, or

(ii) In any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides, or

(a) In respect of any proceeding transferred under Section 4-A, the Court of the officer to whom such proceeding has been transferred.

(1) “Collector” means the chief officer in charge of the revenue-administration of a district and includes any officer whom the State Government, by notification in the official Gazette may, by name or in virtue of his office, appoint to be a Collector in any local area or with respected to any class of persons, for all or any of the purposes of this Act.

³[***]; and

(2) “Prescribed” means prescribed by rules made by the High Court under this Act.

—————

1. See now the Code of Civil Procedure, 1908 (5 of 1908).

2. Subs. by Act 4 of 1926, sec. 2, for the original clause (5).

3. Clause (7) omitted by Act 3 of 1951, sec. 3 and Schedule.

Section 4A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.

¹[4A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.—(1) The High Court may, by general or special order, empower any officer exercising original civil jurisdiction subordinate to a district court, or authorise the Judge of any District Court to empower any such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer under the provisions of this section.

2. The Judge of a district court may, by order in writing, transfer at any stage any proceeding under this Act pending in his Court for disposal to any officer subordinate to him empowered under sub-section (1).

3. The Judge of a district court may at any stage transfer to his own Court or to any officer subordinate to him empowered under sub-section (1) any proceeding under this Act pending in the Court of any other such officer.

4. When any proceedings are transferred under this section in any case in which a guardian has been appointed or declared, the Judge of the District Court may, by order in writing, declare that the Court of the Judge or officer to whom they are transferred shall, for all or any of the purpose of this Act, be deemed to the Court which appointed or declare the guardian.

—————

1. Ins. by Act 4 of 1936, sec. 3.

Chapter II – Appointment and Declaration of Guardians

Section 5. Power of parents to appoint in case of European British subjects.

(Rep. By the Part B States (Laws) Act, 1951 (3 of 1951), sec. 3 and Schedule.

Section 6. Saving of power of appoint in other cases.

In the case of a minor ¹[***], nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property or both, which is valid by the law to which the minor is subject.

—————

1.  The words “who is  not  an  European  British subject”, omitted by Act 3 of 1951, sec. 3 and Sch.

Section 7. Power of the Court to make orders as to guardianship.

(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made- Appointing a guardian of his person or property or both, or declaring a person to be such a guardian the Court may make an order accordingly.

An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

Where a guardian has been appointed by will or other instrument or appointed or declare by the Court, an order under this section appointing or declaring another person to be guardian in his stand shall not be made until the powers of the guardian appointed or declare as aforesaid have ceased under the provision of this Act.

Section 8. Persons entitled to apply for order.

An order shall not be made under the last foregoing section except on the application of the person desirous of being, or claiming to be, the guardian of the minor, or any relative of friend of the minor, or the Collector of the district or other local area within which the minor ordinarily resides or in which he has property, or the Collector having authority with respect to the class to which the minor belongs.

Section 9. Court having jurisdiction to entertain application.

(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

If the application is with respect of the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in the place where he has property.

If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly on conveniently by any other District Court having jurisdiction.

Section 10. Form of application.

(1) If the application is not made by he Collector, it shall be by petition signed and verified in manner prescribed by the Code of Civil Procedure, 1882 (14 of 1882),¹ for the signing and verification of a plaint, and stating, so far as can be ascertained-

the name, sex, religion, date of birth and ordinary residence of the minor,

where the minor is a female, whether she is married and if so, the name and age of her husband,

the nature, situation and approximate value of the property,if any, of the minor,

the name and residence of the person having the custody or possession of the person or property of the minor,

what near relations the minor has and where they reside,

whether a guardian of the person or property or both, of the minor has been appointed by any person entitled to claiming to be entitled by the law to which the minor is subject to make such an appointment

whether an application has at any time been made to the Court or to any there Court with respect to the guardianship of the person or property or both, of the minor and if so, when, to what Court and with what result,

whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both.

Where the application is to appoint a guardian, the qualifications of the proposed guardian.

Where the application is to declare a person to be a guardian, the grounds on which that person claims,

The cause which have led to the making of the application, and

Such other particulars, if any, as may be prescribed or as the nature of the application renders it necessary to state.

If the application is made by the Collector, it shall be by letter addressed to the Court forwarded by post or in such other manners as may be found convenient, and shall state as far as possible the particulars mentioned in sub-section (1).

The application must be accompanied by a declaration of the willingness of the proposed guardian to act, and the declaration must be signed by him and attested by at least two witnesses.

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1. See now the Code of Civil Procedure, 1908 (5 of 1908).

Section 11. Procedure on admission of application.

(1) If the court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof and cause notice of the application and of the date fixed for the hearing.

To be served in the manner directed in the Code of Civil Procedure, 1882 (14 of 1882) ¹on

the parents of the minor if they are residing in ²(any State to which this Act extends)

the person, if any, named in the petition or letter as having the custody or possession of

the person or property of the minor the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant, and

any other person to whim, in the opinion of the Court special notice of the applicant should be given, and to be posted on some conspicuous part of the court-house and of the residence of the minor, and otherwise published in such manner as the Court, subject to any rules made by the High Court under this Act, thinks fit.

The state Government may, by general or special order, require that when any part of the property described in a petition under sec. 10, sec-section (1) is land of which a Court of Wards could assume the superintendence, the Court shall also cause a notice as aforesaid to be served on the Collector in whose district the minor ordinarily resides and on every Collector in whose district any portion of the land is situate, and the Collector may cause the notice to be published in any manner he deems fit.

No charge shall be made by the Court or the Collector for the service or publication of any notice served or published under sub-section (2).

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1. See now the Code of Civil Procedure, 1908 (5 of 1908).

2. Subs. by Act 3 of 1951, sec. 3 and Sch., for “a Part A State or a Part C State”.

Section 12. Power to make interlocutory order for production of minor and interim protection of person and property.

(1) The Court may direct that the person if any, having the custody of the minor, shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.

If the minor is a female who ought not to be compelled to appear in public, the claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or

Any person to whom the temporary custody and protection of the property if a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property

Section 13. Hearing of evidence before making of order.

On the day fixed for the hearing of the application or as soon afterwards as may be, the Court shall hear such evidence as may be adduced in support of or in opposition to the application.

Section 14. Simultaneous proceedings in different Courts.

(1) If proceedings for the appointment or declaration of a guardian of a minor are taken in more Courts than one, each of those courts shall, on being apprised of the proceedings in the order Court or Courts, stay the proceedings before itself.

¹In any other case in which proceedings are stayed under sub-section (1), the Courts shall report the case to and to guided by such orders as they may receive from their respective State Governments.

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1.  Subs. by the A.O. 1937, for the original sub-section (3).

Section 15. Appointment or declaration of several guardians.

(1) If the law to which the minor is subject admits of his having two or more joint guardians of his person or property or both, the Court may, if it thinks fit, appoint or declare them.

¹[***]

Separate guardians may be appointed or declared of the person and of the property of a minor.

If a minor has several properties, the Court may, if it thinks fit, appoint or declare a separate guardian for any one or more of the properties.

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1.  Sub-sections (2) and (3) omitted by Act 3 of 1951, sec. 3 and Sch.

Section 16. Appointment or declaration of guardian for property beyond jurisdiction of the Court.

If the Court appoints or declares a guardian for any property situate beyond the local limits of its jurisdiction, the court having jurisdiction in the place where the property is situate shall, on production of a certified copy of the order appointing or declaring the guardian accept him as duly appointed or declared and give effect to the order.

Section 17. Matter to be considered by the Court in appointing guardian.

(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

In considering what will be for the welfare of the minor, the Courts shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

If the minor is old enough to form an intelligent preference, the Court may consider that preference.

The Court shall not appoint or declare any person to be a guardian against his will.

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1. Sub-section (4) omitted by Act 3 of 1951, sec. 3 and Sch.

Section 18. Appointment or declaration of Collector in virtue of office.

Where a Collector is appointed or declared by the Court in virtue of his office to be guardian of the person or property or both, of a minor, the order appointing or declaring him shall be deemed to authorize and require the person for the time being holding the office to act as guardian of the minor with respect to his person or property or both, as the case may be.

Section 19. Guardian not to be appointed by the Court in certain cases.

Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person of a minor who is married female and whose husband is not, in the opinion of Court, unfit to be guardian of her person,

¹[***] of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor; or

(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

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1. The words “subject to the provisions of this Act with respect to European British subjects” omitted by Act 3 of 1951, sec. 3 and Sch.

Chapter III – Duties, Rights and Liabilities of Guardians

Section 20. Fiduciary relation of guardian to ward.

(1) A guardian stands in a fiduciary relation to his ward, and, save as provided by the will or other instrument, if any, by which he was appointed, or by his act, he must not make any profit out of his office.

The fiduciary relation of a guardian to his ward extends to and affects purchases by the guardian of the property of the ward, and by the ward of the property of the guardian, immediately or soon after the ward has ceased to be a minor and generally all transactions between them while the influence of the guardian still lasts or is recent.

Section 21. Capacity of minor to act as guardians.

A minor is incompetent to act as guardian of any minor except his own wife or child or where he is the managing member of an undivided Hindu family, the wife or child of another minor member of that family.

Section 22. Remuneration of guardian.

(1) A guardian appointed or declared by the Court shall be entitled to such allowances, if any, as the Court thinks fit for his care and pains in the execution of his duties.

(2) When an officer of the Government, as such officer, is so appointed or declared to be guardian, such fees shall be paid to the Government out of the property of the ward as the State Government, by general or special order, directs.

Section 23. Control of Collector as guardian.

A Collector appointed or declared by the Court to be guardian of the person or property or both, of a minor shall, in all matters connected with the guardianship of his ward, be subject to the control of the State Government or of such authority as that Government, by notification in the official Gazette, appoints in this behalf.

Section 24. Duties of guardian of the person.

A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.

Section 25. Title and guardian to custody of ward.

(1) if a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).

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1. See now section 97 of the Code of Criminal Procedure, 1973 (2 of 1974).

Section 26. Removal of ward from jurisdiction.

(1) A guardian of the person appointed or declared by the Court, unless he is the Collector or is a guardian appointed by will or other instrument, shall not, without the leave of the Court by which he was appointed or declared, remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed.

The leave granted by the Court under sub-section (1) may be special or general and may be defined by the order granting it.

Section 27. Duties of guardian of property.

A guardian of the property of a ward is bound to deal with as carefully as a man of ordinary prudence would deal with it, if it were his own and subject to the provisions of this Chapter, he may do all acts which are reasonable and proper for the realization, protection or benefit of the property

Section 28. Power of testamentary guardian.

Where a guardian has been appointed by will or the other instrument, his power to mortgage or charge, or transfer by sale, gift, exchange or otherwise, immovable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the Court which made the declaration permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable p

Section 29. Limitation of powers of guardian of property appointed or declared by the Court.

Where a person other than a Collector, or than a guardian appointed by will or other instruments, has been appointed or declared by the Court to be guardian of the property of award, he shall not, without the previous permission of the Court,- Mortgage or charge or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.

Section 30. Violability of transfers made in contravention of section 28 or section 29.

A disposal of immovable property by a guardian in contravention of either of the two last foregoing sections is violable at the instance of any other person affected thereby.

Section 31. Practice with respect to permitting transfer under section 29.

(1) Permission to the guardian to do any of the acts mentioned in section 29 shall not be granted by the Court except in case of necessity or for an evident advantage to the ward.

The order granting the permission shall recite the necessity or advantage, as the case may be, describe the property with respect to which the act permitted is to be done, and specify such conditions, if any, as the Court may see fit to attach to the permission, and it shall be recorded, dated and signed by the Judge of the Court with his own hand, or when from any cause he is prevented from recording the order with his own hand, shall be taken down in writing from his dictation and be dated and signed by him.

The Court may in its discretion attach to the permission the following among other conditions, namely:- That a sale shall not be completed without the sanction of the Court.

That a sale shall be made to the highest bidder by public auction before Court or some person specially appointed by the Court for that purpose, at a time and place to be specified by the Court, after such proclamation of the intended sale as the Court subject to any rules made under this Act by the High Court, directs,

That a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and convenience as the Court directs.

That the whole or any part of the proceeds of the act permitted shall be paid into the Court by the guardian, to be disbursed therefrom or to be invested by the Court on prescribed securities or to be otherwise disposed of as the Court directs.

Before granting permission to a guardian to do an act mentioned in section 29, the court may cause notice of the application for the permission to be given to any relative or friend of the ward who should, in its opinion, receive notice thereof, and shall hear and record the statement of any person who appears in opposition to the application

Section 32. Variation of powers of guardian of property appointed or declared by the Court.

Where a guardian of the property of a ward has been appointed or declared by the Court and such guardian is not the Collector, the Court may, form time to time, by order, define, restrict or extend his powers with respect to the property of the ward in such manner and to such extend as it may consider to be for the advantage of the ward and consistent with the law to which the ward is subject..

Section 33. Right of guardian so appointed or declared to apply to the Court for opinion in management of property of ward.

(1) A guardian appointed or declared by the Court may apply by petition to the Court which appointed or declared him for its opinion, advice or direction on any present question respecting the management or administration of the property of his ward.

If the Court considers the question to be proper for summary disposal, it shall cause a copy of the petition to be served on, and the hearing thereof may be attended by, such of the person interested in the application as the Court thinks fit.

The guardian sitting in good faith the facts in the petition and acting upon the opinion, advice or direction given by the Court shall be deemed, so far as regards his own responsibility, to have performed his duty as guardian in the subject-matter of the application.

Section 34. Obligations on guardian of property appointed or declared by the Court.

Where a guardian of he property of a ward has been appointed or declared by the Court and such guardian is not the Collector, he shall,- If so required by the Court, give a bond, as nearly as may be in the prescribed form, to the Judge of the Court to ensure for the benefit of the Judge for the time being, with or without sureties, as may be prescribed engaging duly to account for what he may receive in respect of the property of the ward.

If so required by the Court, deliver to the Court, within six months from the date of his appointment or declaration by the Court, or within such other time as the Court directs, a statement of the immovable property belonging to the ward, of the money and other movable property which he has received on behalf of he ward up to the date of delivering the statement, and of the debts due on that date to on from the ward.

If so required by the Court, exhibit his accounts in the Court at such times and in such form as the Court form time to time directs.

If so required by the Court, pay into the Court at such time as the Court directs the balance due from him on those accounts, or so much thereof as the Court directs, and

Apply for the maintenance, education and advancement of the ward and of such person as are dependent on him, and for the celebration of ceremonies to which the ward or any of those persons may be party, such portion of the income of the property of the ward as the Court from time to time directs, and , if the Court so directs, the whole or any part of that property

Section 34A. Power to award remuneration for auditing accounts.

¹[34A. Power to award remuneration for auditing accounts.—When accounts are exhibited by a guardian of the property of a ward in pursuance of a requisition made under clause (c) of section 34 or otherwise, the Court may appoint a person to audit the accounts, and may direct that remuneration for the work be paid out of the income of the property.

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1.  Ins. by Act 17 of 1929, sec. 2.

Section 35. Suit against guardian where administration-bond- was taken.

Where a guardian appointed or declared by the Court has given a bond duly to a account for what he may receive in respect of the property of his ward, the Court may, on application made by petition and on being satisfied that the engagement of the bond has not been kept, and upon such term as to security, or providing that any money received by paid into the Court, or otherwise as the Court thinks fit, assign the bond to some proper person, who shall thereupon the entitled to sue on the bond in his own name as if the bond had been originally given to him instead of to the Judge of the Court, and shall be entitled to recover thereon, as trustee for the ward, in respect of any breach thereof.

Section 36. Suit against guardian where administration-bon- was not taken.

(1) Where a guardian appointed or declared by the Court has not given a bond as aforesaid, any person, with the leave of the Court, may, as next friend, at any time during the continuance of the minority of the ward, and upon such terms as aforesaid, institute a suit against the guardian, or, in case of his death, against his representative, for an account of what the guardian has received in respect of the property of the ward, and may recover in the suit, as trustee for the ward, such amount as may be found to be payable by the guardian or his representative, as the case may be.

The provisions of such-section (1) shall, so far as they relate to a suit against a guardian, be subject to the provisions of section 4400 of the Code of Civil Procedure as amended by this Act, 1882 (14 of 1882).

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1.  See now Order XXXII, rules 1 and 4(2), in the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).

Section 37. General liability of guardian as trustee.

Nothing in either of the two last foregoing sections shall be construed to deprive a ward or his representative of any remedy against his guardian, or the representative of the guardian, which, not being expressly provided in either of those sections, any other beneficiary or his representative would have against his trustee or the representative of the trustee.

Section 38. Right of survivorship among joint guardians.

On the death of one of two or more joint guardians, the guardianship continues to the survivor or survivor until a further appointment is made by the Court.

Section 39. Removal of guardian.

The court may, on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely :- For abuse of his trust for continued failure to perform the duties of his trust, for incapacity to perform the duties of his trust, for ill-treatment, or neglect to take proper care, of his ward, for contumacious disregard of any provision of this Act or of any order of the Court, for conviction of an offence implying, in the opinion of the Court, a defect of character which unfits him to be the guardian of his ward.

For having an interest adverse to the faithful performance of his duties.

For ceasing to reside within the local limits of the jurisdiction of the Court.

In the case of a guardian of the property, for bankruptcy or insolvency, By reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject.

Provided that a guardian appoint by will or other instrument, whether he has been declared under this Act, or not, shall not be removed- For the cause mentioned in clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that person made and maintained the appointment In ignorance of the existence of the adverse interest, or for the cause mentioned in clause (h) unless such guardian has taken up such a residence as, in the opinion of the Court, renders it impracticable for him to discharge the functions of guardian

Section 40. Discharge of guardian.

(1) If a guardian appointed or declared by the Court desires to resign his office, he may apply to the Court to be discharged.

If the court finds that there is sufficient reason for the application, it shall discharge him, and if the guardian making the application is the Collector and the State Government approves of his applying to be discharged, the Court shall in any case discharge him

Section 41. Cessation of authority of guardian.

(1) The powers of a guardian of the person cease.- By his death, removal or discharge by the Court of wards assuming superintendence of the person of the ward, by the ward ceasing to be a minor in the case of a female ward, by her marriage to a husband who is not unfit to be guardian of her person or, if the guardian was appointed or declared by the Court, by her marriage to a husband who is not, in the opinion of the Court, so unfit, or in the case of a ward whose father was unfit to be guardian of the person of the ward, by the father ceasing to be so or, if the father was deemed by the Court to be so unfit, by his ceasing to be so in the opinion of the Court.

The powers of a guardian of the property cease- by his death, removal or discharge, by the Court of Wards assuming superintendence of the property of the ward, or by the ward ceasing to be a minor.

When for any cause the powers of a guardian cease, the Court may require him of, if he is dead, his representative to delivers as it directs any property in his possession or control belonging to the ward or any accounts in his possession or control relating to any past of present of the ward.

When he has delivered the property or accounts as required by the Court, the Court may declare him to be discharged from his liabilities save as regards any fraud which may subsequently be discovered

Section 42. Appointment of successor to guardian dead, discharged or removed.

When a guardian appointed or declared by the Court is discharged, or, under the law to which the ward is subject, ceases to be entitled to act, or when any such guardian or a guardian appointed by will or other instrument is removed or dies, the Court, of its own motion or on application under Chapter II, may, if the ward is still a minor, appoint or declare another guardian of his person or property, or both, as the case may be.

Chapter IV – Supplemental Provisions

Section 43. Orders for regulating conduct or proceedings of guardians, and enforcement of those orders.

(1) The Court may, on the application of any person interested or of its own motion, make an order regulating the conduct or proceedings of any guardian appointed or declared by the Court.

(2) Where there are more guardians than one of a ward and they are unable to agree upon a question affecting his welfare, any of them may apply to the Court for its direction, and the Court may make such order respecting the matter in difference as it thinks fit.

(3) Except where it appears that the object of making an order under sub-section (1) or sub-section (2) would be defeated by the day, the Court shall, before making the order, direct notice of the application therefor or of the intention of the Court to make it, as the case may be, to be given, in a case under sub-section (1), to the guardian or, in a case under sub-section (2), to the guardian who has not made the application.

(4) In case of disobedience to an order made under sub-section (1), or sub-section (2), the order may be enforced in the same manner as an injunction granted under section 492 or section 493 of the Code of Civil Procedure, 1882 (14 of 1882)¹, in a case under sub-section (1) as if the ward were the plaintiff and the guardian were the defendant or, in a case under sub-section (2), as if the guardian who made the application were the plaintiff and the other guardian were the defendant.

(5) Except in a case under sub-section (2), nothing in this section shall apply to a Collector who is, as such, a guardian.

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1. See now Order XXXIX, rules 1 and 2 in the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).

Section 44. Penalty for removal of ward from jurisdiction.

If, for the purpose or with the effect of preventing the Court from exercising its authority with respect to a ward, a guardian appointed or declared by the Court removes the ward from the limits of the jurisdiction of the Court in contravention of the provisions of section 26, he shall be liable, by order of the Court, to fine not exceeding one thousand rupees, or to imprisonment in the civil jail for a term which may extend to six months.

Section 45. Penalty for contumacy.

(1) In the following cases, namely :- If a person having the custody of a minor fails to produce him or cause him to be produced in compliance with a direction under section 12, sub-section (1), or to do his utmost to compel the minor to return to the custody of his guardian in obedience to an order under section 25, sub-section (1),or

If a guardian appointed or declared by the Court fails to deliver to the Court, within the time allowed by or under clause (b) of section 34, a statement required under that clause, or to exhibit accounts in compliance with a requisition under clause (C) of that section, or to pay into the Court the balance due from him on those accounts in compliance with a requisition under clause (d) of that section.

If a person who has ceased to be guardian, or the representative of such a person, fails to deliver any property or accounts in compliance with a requisition under section 41, sub-section (3).

The person, guardian or representative, as the case may be, shall be liable, by order of the Court, to fine not exceeding one hundred rupees, and in case of recusancy to further fine not exceeding ten rupees for each day after the first during which the default continues, and not exceeding five hundred rupees in the aggregate, and to detention in the civil jail until the undertakes to produce the minor or cause him to be produced, or to compel his return, or to deliver the statement, or to exhibit the accounts, or to pay the balance, or to deliver the property or accounts, as the case may be.

If a person who has been released from detention on giving an undertaking under sub-section (1) fails to carry out the undertaking within the time allowed by the Court, the Court may cause him to be arrested and recommitted to the civil jail.

Section 46. Reports by Collectors and subordinate Courts.

(1) The Court may call upon the Collector, or upon any court subordinate to the court, for a report on any matter arising in any proceeding under this Act and treat the report as evidence.

For the purpose of preparing the report the Collector or the Judge of the subordinate Court, as he case may be, shall make such inquiry as he deems necessary, and may for the purposes of the inquiry exercise any power of compelling the attendance of witnesses to give evidence or produce a document which is conferred on a Court by the Code of Civil Procedure, 1882 (14 of 1882)¹

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1.  See now the Code of Civil Procedure, 1908 (5 of 1908).

Section 47. Orders appeasable.

An appeal shall lie to the High Court from an order made by a ¹[***]Court- under Section 7, appointing or declaring or refusing to a appoint or declare a guardian, or under Section 9 sub-section (3) returning an application, or under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian, or under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto, or under Section 28 or section 29, refusing permission to a guardian to do an act referred to in the section, or under section 32, defining, restricting or extending the powers of a guardian, or under section 39, removing a guardian, or under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians or enforcing the order, or under section 44 or section 45, imposing a penalty.

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1.The word “district” repealed by Act 4 of 1926, sec. 4.

Section 48. Finality of others orders.

Save as provided by the last foregoing section and by section 622 of the Code of Civil Procedure, 1882 (14 of 1882)¹ an order made under this Act shall be final, and shall not be liable to be contested by suit or otherwise.

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1.  See now section 115 of the Code of Civil Procedure, 1908 (5 of 1908).

Section 49. Costs.

The costs of any proceeding under this Act, including the costs of maintaining a guardian or other person in the civil jail, shall, subject to any rules made by the High Court under this Act, be in the discretion of the court in which the proceeding is had.

Section 50. Power of High Court to make rules.

(1) In addition to any other power to make rules conferred expressly or implied by this Act, the High Court may from time to time make rules consistent with this Act- As to the matters respecting which, and the time at which, reports, should be called for from Collectors and subordinate Courts.

As to the allowances to be granted to, and the security to be required from, guardians, and the cases in which such allowances should be granted.

As to the procedure to be followed with respect to applications of guardians for permission to do acts referred to in section 28 and 29.

As to the circumstances in which such requisitions as are mentioned in clause (a), (b), (c) and (d) of section 34 should be made.

As to the preservation of statements and accounts delivered and exhibited by guardians.

As to the inspection of those statements and accounts by persons interested.

¹As to the audit of accounts under Section 34-A, the class of persons who should be appointed to audit accounts, and the scales of remuneration to be granted to them.

as to the custody of money, and securities for money, belonging to wards,

As to the securities on which money belonging to wards may be invested.

As to the education of wards for whom guardians, not being Collectors, have been appointed or declared by the Court, and

Generally, for the guidance of the Courts in carrying out the purposes of this Act.

Rules under clauses (a) and (I) of sub-section (1) shall not have effect until they have been approved by the ²(State Government) nor shall any rule under this section have effect until it has been published in the official Gazette.

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1.  Ins. by Act 17 of 1929, sec. 3.

2.  Subs. by A.L.O. 1950, for the words “Provincial Government”.

Section 51. Applicability of Act to guardians already appointed by Court.

A guardian appointed by, or holding a certificate of administration from, a Civil Court under any enactment repealed by this Act shall, save as may be prescribed, be subject to the provisions of this Act, and of the rules made under it, as if he had been appointed or declared by the Court under Chapter II.

Section 52. Amendment of Indian Majority Act.

(Rep. By the Repealing Act, 1938 (1 of 1938) section 2 and Schedule).

Section 53. Amendment of Chapter XXXI of the Code of Civil Procedure.

(Rep. By the code of Civil Procedure, 1908 ( 5 of 1908) section 156 and Sch. VI).

The schedule.

Enactment repealed.- (Rep. By the Repealing Act, 1938 (1 of 1938), section 2 and Schedule).