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Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanations
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanations
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.
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.
(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.
(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.
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.
(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.
(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.
(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.
(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.
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.
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.
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
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).
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.
(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.
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.
(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.
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
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.
(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.
(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.
(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.
(1) This Act may be called the Patents Act, 1970.
(2) It extends to the whole of India.
(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.
(1) In this Act, unless the context otherwise requires,—
1[(a) “Appellate Board” means the Appellate Board referred to in section 116;
(ab) “assignee” includes an assignee of the assignee and the legal representative of a deceased assignee and references to the assignee of any person include references to the assignee of the legal representative or assignee of that person;
2[(aba) “Budapest Treaty” means the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure done at Budapest on 28th day of April, 1977, as amended and modified from time to time;]
(ac) “capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;]
(b) “Controller” means the Controller-General of Patents, Designs and Trade Marks referred to in section 73;
(c) “convention application” means an application for a patent made by virtue of section 135;
3[(d) “convention country” means a country or a country which is member of a group of countries or a union of countries or an Inter-governmental organisation [referred to as a convention country in section 133;]]
(e) “district court” has the meaning assigned to that expression by the CPC, 1908;
(f) “exclusive licence” means a licence from a patentee which confers on the licensee, or on the licensee and persons authorised by him, to the exclusion of all other persons (including the patentee), any right in respect of the patented invention, and “exclusive licensee” shall be construed accordingly;
(g) [Clause (g) omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005]
(h) “government undertaking” means any industrial undertaking carried on—
(i) by a department of the government; or
(ii) by a corporation established by a Central, Provincial or State Act, which is owned or
controlled by the government; or
(iii) by a government company as defined in section 617 of the Companie Act, 1956(1 of
1956) 4[;or]
4[(iv) by an institution wholly or substantially financed by the Government;] [Certain words omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005]
5[(i) “High Court”, in relation to a State or Union territory, means the High Court having territorial jurisdiction in that State or Union territory, as the case may be;]
6[(ia) “international application” means an application for patent made in accordance with the Patent Cooperation Treaty;]
7[(j) “invention” means a new product or process involving an inventive step and capable of industrial application;
5[(ja) “inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art;]
(k) “legal representative” means a person who in law represents the estate of a deceased person;
5[(l) “new invention” means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part of the state of the art;
(m) “patent” means a patent for any invention granted under this Act;]
4[(ia) “pharmaceutical substance” means any new entity involving one or more inventive steps;]
5[(la) “Opposition Board” means an Opposition Board constituted under sub-section (4) of section 25;]
(n) “patent agent” means a person for the time being registered under this Act as a patent agent;
(o) “patented article” and “patented process” mean respectively an article or process in respect of which a patent is in force;
6[(oa) “Patent Co-operation Treaty” means the Patent Cooperation Treaty done at Washington on the 19th day of June, 1970 as amended and modified from time to time;]
(p) “patentee” means the person for the time being entered on the register as the grantee or proprietor of the patent;
(q) “patent of addition” means a patent granted in accordance with section 54;
(r) “patent office” means the patent office referred to in section 74;
(s) “person” includes the government;
(t) “person interested” includes a person engaged in, or in promoting, research in the same field as that to which the invention relates;
8[(u) “prescribed” means,—
(A) in relation to proceedings before a High Court, prescribed by rules made by the High Court;
(B) in relation to proceedings before the Appellate Board, prescribed by rules made by the Appellate Board; and
(C) in other cases, prescribed by rules made under this Act;]
(v) “prescribed manner” includes the payment of the prescribed fee;
(w) “priority date” has the meaning assigned to it by section 11;
(x) “register” means the register of patents referred to in section 67;
(y) “true and first inventor” does not include either the first importer of an invention into India, or a person to whom an invention is first communicated from outside India.
(2) In this Act, unless the context otherwise requires, any reference—
(a) to the Controller shall be construed as including a reference to any officer discharging the functions of the Controller in pursuance of section 73;
(b) to the patent office shall be construed as including a reference to any branch office of the patent office.
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1. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
2. Inserted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. Substituted for “notified as such under sub-section (1) of section 133″ by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
4. Inserted by Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
5. Substituted, ibid.
6. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide SO 561(E), dt. 20-5-2003.
7. Substituted, ibid.
8. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide SO 561(E), dt. 20-5-2003.
The following are not inventions within the meaning of this Act,—
(a) an invention which is frivolous or which claims anything obviously contrary to well established natural laws;
1[(b) an invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;]
(c) the mere discovery of a scientific principle or the formulation of an abstract theory 2[or discovery of any living thing or non-living substance occurring innatur;]
3[(d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
Explanation : For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy;]
(e) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
(f) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
(g) [Omitted by Patents (Amdt.) Ad, 2002, w.e.f. 20-5-2003 vide S.0.561(E), dt. 20-5-2003]
(h) a method of agriculture or horticulture;
(i) any process for the medicinal, surgical, curative, prophylactic 4[diagnostic, therapeutic] or other treatment of human beings or any process for a similar treatment of animals 5[xxxxx] to render them free of disease or to increase their economic value or that of their products.
4[(j) plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
(k) a mathematical or business method or a computer program per se or algorithms;
(l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematrographic works and television productions;
(m) a mere scheme or rule or method of performing mental act or method of playing game;
(n) a presentation of information;
(o) topography of integrated circuits;
(p) an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.] , ,
——————-
1. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
2. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
3. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
4. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E),dt. 20-5-2003.
5. Words “or plants” omitted, by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
No patent shall be granted in respect of an invention relating to atomic energy falling within sub-section (1) of section 20 of the Atomic Energy Act, 1962 (33 of 1962).
[Omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005]
(1) Subject to the provisions contained in section 134, an application for a patent for an invention may be made by any of the following persons, that is to say,—
(a) by any person claiming to be the true and first investor of the invention;
(b) by any person being the assignee of the person claiming to be the true and first inventor in respect of the right to make such an application;
(c) by the legal representative of any deceased person who immediately before his death was entitled to make such an application.
(2) An application under sub-section (1) may be made by any of the persons referred to therein either alone or jointly with any other person.
Every application for a patent shall be for one invention only and shall be made in the prescribed form and filed in the patent office.
1[(1A) Every international application under the Patent Cooperation Treaty for a patent, as may be filed designating India shall be deemed to be an application under this Act, if a corresponding application has also been filed before the Controller in India.]
2[(1B) The filing date of an application referred to in sub-section (1A) and its complete specification processed by the patent office as designated office or elected office shall be the international filing date accorded under the Patent Cooperation Treaty.]
(2) Where the application is made by virtue of an assignment of the right to apply for a patent for the invention, there shall be furnished with the application, or within such period as may be prescribed after the filing of the application, proof of the right to make the application.
(3) Every application under this section shall state that the applicant is in possession of the invention and shall name the 3[person] claiming to be the true and first inventor; and where the person so claiming is not the applicant or one of the applicants, the application shall contain a declaration that the applicant believes the person so named to be the true and first inventor.
4[(4) Every such application (not being a convention application or an application filed under the Patent Cooperation Treaty designating India) shall be accompanied by a provisional or a complete specification.]
——————–
1 Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E),dt. 20-5-2003.
2. Inserted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. Substituted for “ownei” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
4. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) Where an applicant for a patent under this Act is prosecuting either alone or jointly with any other person an application for a patent in any country outside India in respect of the same or substantially the same invention, or where to his knowledge such an application is being prosecuted by some person through whom he claims or by some person deriving title from him, he shall file along with his application [or subsequently 2[within the prescribed period as the Controller may allow]]—
3[(a) a statement setting out detailed particulars or such application; and]
(b) an undertaking that, 4[up to the date of grant of patent in India,] he would keep the Controller informed in writing, from time to time, of 5[detailed particulars as required under] clause (a) in respect of every other application – . relating to the same or substantially the same invention, if any, filed in any country outside India subsequently to the filing of the statement referred to in the aforesaid clause, within the prescribed time.
1[(2) At any time after an application for patent is filed in India and till the grant of a patent or refusal to grant of a patent made thereon, the Controller may also require the applicant to furnish details, as may be prescribed, relating to the processing of the application in a country outside India, and in that event the applicant shall furnish to the Controller information available to him within such period as may be perscribed.]
——————–
1. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted for “within such period as the Controller may, for good and sufficient reasons, allow” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
4. Substituted for “up to the date of the acceptance of his complete specification filed in India” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
5. Substituted for “details of the nature referred to in” by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E),dt. 20-5-2003.
1[(1) Where an application for a patent (not being a convention application or an application filed under the Patent Cooperation Treaty designating India) is accompanied by a provisional specification, a complete specification shall be filed within twelve ‘ months i rum the date of filing of the application, and if the complete specification is not so filed, the application shall be deemed to be abandoned.]
(2) Where two or more applications in the name of the same applicant are accompanied by provisional specifications in respect of inventions which are cognate or of which one is a modification of another and the Controller is of opinion that the whole of such inventions are such as to constitute a single invention and may properly be included in one patent, he may allow one complete specification to be filed in respect of all such provisional specifications:
2[PROVIDED that the period of time specified under sub-section (1) shall be reckoned from the date of filing of the earliest provisional specification.]
1[(3) Where an application for a patent (not being a convention application or an application filed under the Patent Cooperation Treaty designating India) is accompanied by a specification purporting to be a complete specification, the Controller may, if the applicant so requests at any time within twelve months from the date of filing of the application, direct that such specification shall be treated, for the purposes of this Act, as a provisional specification and proceed with the application accordingly.]
(4) Where a complete specification has been filed in pursuance of an application for a patent accompanied by a provisional specification or by a specification treated by virtue of a direction under sub-section (3) as a provisional specification, the Controller may, if the applicant so requests at any time before 3[grant of patent] cancel the provisional specification and post-date the application to the date of filing of the complete specification.
S
Mere arrangement or rearrangement or duplication of a known device cannot be patented.— Standipack Pvt. Ltd. v. Oswal Trading Co. Ltd. 1999 (19) PTC 479 (Del)
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1. Substituted by the Patents (Amdt.) Act 2005, w.e.f. 1-1-2005.
2. Inserted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. Substituted for “the acceptance of the complete specification’ by the Patents (Amdt.) Act, 2005 w.e.f. 1-1-2005.
(1) Every specification, whether provisional or complete, shall describe the invention and shall begin with a title sufficiently indicating the subject-matter to which the invention relates.
(2) Subject to any rules that may be made in this behalf under this Act, drawings may, and shall, if the Controller so requires, be supplied for the purposes of any specification, whether complete or provisional; and any drawings so supplied shall, unless the Controller otherwise directs, be deemed to form part of the specification, and references in this Act to a specification shall be construed accordingly. –
(3) If, in any particular case, the Controller considers that an application should be further supplemented by a model or sample of anything illustrating the invention or alleged to constitute an invention, such model or sample as he may require shall be furnished 1[before the application is found in order for grant of a patent] but such model or sample shall not be deemed to form part of the specification.
(4) Every complete specification shall—
(a) fully and particularly describe the invention and its operation or use and the method by which it is to be performed;
(b) disclose the best method of performing the invention which is known to the applicant and for which he is entitled to claim protection; and
(c) end with a claim or claims defining the scope of the invention for which protection is claimed.
2[(d) be accompanied by an abstract to provide technical information on the invention:
PROVIDED that—
(i) the Controller may amend the abstract for providing better information to third parties; and
(ii) if the applicant mentions a biological material in the specification which may not be described in such a way as to satisfy clauses (a) and (b), and if such material is not available to the public, the application shall be com-*” pleted by depositing 3[the material to an international depository authority under the Budapest Treaty] and by fulfilling the following conditions, namely:—
4[(A) the deposit of the material shall be made not later than the date of filing the patent application in India and a reference thereof shall be made in the specification within the prescribed period;]
(B) all the available characteristics of the material required for it to be correctly identified or indicated are included in the specification including the name, address of the depository institution and the date and number of the deposit of the material at the institution;
(C) access to the material is available in the depository institution only after the date of the application for patent in India or if a priority is claimed after the date of the priority;
(D) disclose the source and geographical origin of the biological material in the specification, when used in an invention.]
4[(4A) In case of an international application designating India, the title, description, drawings, abstract and claims filed with the application shall be taken as the complete specification for the purposes of this Act.]
5[(5) The claim or claims of a complete specification shall relate to a single invention, or to a group of inventions linked so as to form a single inventive concept, shall be clear and succinct and shall be fairly based on the matter disclosed in the specification.]
(6) A declaration as to the inventorship of the invention shall, in such cases as may be prescribed be furnished in the prescribed form with the complete specification or within such period as may be prescribed after the filing of that specification.
(7) Subject to the foregoing provisions of this section, a complete specification to the invention which was described in the provisional specification, being developments or additions in respect of which the applicant would be entitled under the provisions of section 6 to make a separate application for a patent.
S
Where the invention has not been properly described and will not function in the way claimed by the applicants, the opponents succeed even when they fail to establish “prior publication” as well as “prior public knowledge” and, therefore, the application for grant of patent is liable to be rejected.—Abid Kagalwala v. Edgar Haddley Co. (P) Ltd. 1984 PTC 234 (PO)
Where the invention claimed by the plaintiff involves nothing which is outside the probable capability of skilled craftsman having regard to what was already known in the country and there being no new manner of manufacture or a distinctive improvement on the old contrivance involving novelty or inventive step, ex parte injunction granted is liable to be vacated.—Surendra Lal Mahendra v. Jain Glazers 1981 PTC 112 (Del)
It is incumbent under section 10(4) to fully and particularly describe the invention and its operation or use and the method by which it is to be performed and disclose the best method of performing the invention which is known to the applicant and for which he is entitled to claim protection ending with a claim or claims defining the scope of the invention for which protection is claimed.—Ram Narain Kher v. Ambassador Industries PTC (Suppl.) (1) 180 (Del).
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1. Subs, for “before the acceptance of the application” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
3. Substituted for “the material to an authorised depository institution as may be notified by the Central Government in the Official Gazette” by the Patents (Amdt) Act, 2005, w.e.f. 1-1-2005.
4. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
5. Substituted by Patents (Amdt.) Act. 2002, w.e.f. 20-5-2003 vide S.O. 561 (E), dt. 20-5-2003.
(1) There shall be a priority date for each claim of a complete specification.
(2) Where a complete specification is filed in pursuance of a single application accompanied by—
(a) a provisional specification; or
(b) a specification which is treated by virtue of a direction under sub-section (3) of section 9 as a provisional specification,
and the claim is fairly based on the matter disclosed in the specification referred to in clause (a) or clause (b), the priority date of that claim shall be the date of the filing of the relevant specification.
(3) Where the complete specification is filed or proceeded with in pursuance of two or more applications accompanied by such specifications as are mentioned in sub-section (2) and the claim is fairly based on the matter disclosed—
(a) in one of those specifications, the priority date of that claim shall be the date of filing of the application accompanied by that specification;
(b) partly in one and partly in another, the priority date of that claim shall be the date of the filing of the application accompanied by the specification of the later date.
1[(3A) Where a complete specification based on a previously filed application in India has been filed within twelve months from the date of that application and the claim is fairly based on the matter disclosed in the previously filed application, the priority date of that claim shall be the date of the previously filed application in which the matter was first disclosed.]
(4) Where the complete specification has been filed in pursuance of a further application made by virtue of sub-section (1) of section 16 and the claim is fairly based on the matter disclosed in any of the earlier specifications, provisional or complete, as the case may be, the priority date of that claim shall be the date of the filing of that specification in which the matter was first disclosed.
(5) Where, under the foregoing provisions of this section, any claim of a complete specification would, but for the provisions of that sub-section, have two or more priority dates, the priority date of that claim shall be the earlier or earliest of those dates.
(6) In any case to which sub-sections (2), (3), H(3A)]; (4) and (5) do not apply, the priority date of a claim shall, subject to the provisions of section 137, be the date of filing of the complete specification.
(7) The reference to the date of. the filing of the application or of the complete specification in this section shall, in cases where there has been a post-dating under section 9 or section 17 or, as the case may be, an ante-dating under section 16, be a reference to the date as so post-dated or ante-dated.
(8) A claim in a complete specification of a patent shall not be invalid by reason only of —
(a) the publication or use of the invention so far as claimed in that claim on or after the priority date of such claim; or
(b) the grant of another patent which claims the invention, so far as claimed in the first mentioned claim, in a claim of the same or a later priority date.
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1. Inserted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
1[PUBLICATION AND EXAMINATION OF APPLICATIONS]
2[Publication of applications. 3[(1) Save as otherwise provided, no application for patent shall ordinarily be open to the public for such period as may be prescribed.
(2) The applicant may, in the prescribed manner, request the Controller to publish his application at any time before the expiry of the period prescribed under sub-section (1) and subject to the provisions of sub-section (3), the Controller shall publish such application as soon as possible.
(3) Every application for a patent shall, on the expiry of the period specified under subsection (1), be published, except in cases where the application—
(a) in which secrecy direction is imposed under section 35; or
(b) has been abandoned under sub-section (1) of section 9; or
(c) has been withdrawn three months prior to the period specified under sub-section (1).]
(4) In case a secrecy direction has been given in respect of an application under section 35, then it shall be published after the expiry of the period 4[prescribed under sub-section (1)] or when the secrecy direction has creased to operate, whichever is later.
(5) The publication of every application under this section shall include the particulars of the date of application, number of application, name and address of the applicant identifying the application and an abstract.
(6) Upon publication of an application for a patent under this section—
(a) the depository institution shall make the biological material mentioned in the specification available to the public;
(b) the patent office may, on payment of such fee as may be prescribed, make the specification and drawings, if any, of such application available to the public.
5[(7) On and from the date of publication of the application for patent and until the date of grant of a patent in respect of such application, the applicant shall have the like privileges and rights as if a patent for the invention had been granted on the date of publication of the application:
PROVIDED that the applicant shall not be entitled to institute any proceedings for infringement until the patent has been granted:
PROVIDED FURTHER that the rights of a patentee in respect of applications made under sub-section (2) of section 5 before the 1st day of January, 2005 shall accrue from the date of grant of the patent:
PROVIDED ALSO that after a patent is granted in respect of applications made under sub-section (2) of section 5, the patent-holder shall only be entitled to receive reasonable royalty from such enterprises which have made significant investment and were producing and marketing the concerned product prior to 1-1-2005 and which continue to manufacture the product covered by the patent on the date of grant of the patent and no infringement proceedings shall be instituted against such enterprises.]
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1. Substituted for “Examination of Applications” by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561 (E),dt. 20-5-2003.
2. Inserted, ibid.
3. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
4. Substituted for “of eighteen months” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
5. Inserted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
1[(1) No application for a patent shall be examined unless the applicant or any other interested person makes a request in the prescribed manner for such examination within the prescribed period.]
2[(2) xxx]
1[(3) In case of an application in respect of a claim for a patent filed under sub-section (2) of section 5 before the 1st day of January, 2005 a request for its examination shall be made in the prescribed manner and within the prescribed period by the applicant or any other interested person.]
(4) In case the applicant or any other interested person does not make a request for examination of the application for a patent within the period as specified under sub-section (1) 3[x x x] or sub-section (3), the application shall be treated as withdrawn by the applicant:
1[PROVIDED that—
(i) the applicant may, at any time after filing the application but before the grant of a patent, withdraw the application by making a request in the prescribed manner; and
(ii) in a case where secrecy direction has been issued under section 35, the request for examination may be made within the prescribed period from the date of revocation of the secrecy direction.]
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1. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. “or sub-section (2)” omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) When a request for examination has been made in respect of an application for a patent in the prescribed manner1 [under sub-section (1) or sub-section (3) of section 11B, the application and specification and other documents related thereto shall be referred at the earliest by the Controller] to an examiner for making a report to him in respect of the following matters, namely,—
(a) whether the application and the 2[specification and other documents relating thereto] are in accordance with the requirements of this Act and of any rules made thereunder;
(b) whether there is any lawful ground of objection to the grant of the patent under this Act in pursuance of the application;
(c) the result of investigations made under section 13; and
(d) any other matter which may be prescribed.
(2) The examiner to whom the application and the 3[specification and other documents relating thereto] are referred under sub-section (1) shall ordinarily make the report to the Controller within 4[such period as may be prescribed].
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1. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted for “specification relating thereto” by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561 (E),dt. 20-5-2003.
3. Substituted for “a period of eighteen months from the date of such reference” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
4. Words “as the Controller may direct” omitted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561 (E),dt. 20-5-2003.
(1) The examiner to whom an application for a patent is referred under section 12 shall make investigation for the purpose of ascertaining whether the invention so far as claimed in any claim of the complete specification—
(a) has been anticipated by publication before the date of filing of the applicant’s complete specification in any specification filed in pursuance of an application for a patent made in India and dated on or after the 1st day of January, 1912;
(b) is claimed in any claim of any other complete specification published on or after the date of filing of the applicant’s complete specification, being a specification filed in pursuance of an application for a patent made in India and dated before or claiming the priority date earlier than that date.
(2) The examiner shall, in addition, make an investigation [x x x] for the purpose of ascertaining, whether the invention, so far as claimed in any claim of the complete specification, has been anticipated by publication in India or elsewhere in any document other than those mentioned in sub-section (1) before the date of filing of the applicant’s complete specification.
(3) Where a complete specification is amended under the provisions of this Act before 1[the grant of a patent], the amended specification shall be examined and investigated in like manner as the original specification.
(4) The examination and investigations required under section 12 and this section shall not be deemed in any way to warrant the validity of any patent, and no liability shall be incurred by the Central Government or any officer thereof by reason of, or in connection with, any such examination or investigation or any report or other proceedings consequent thereon.
S
Prior registration of patent in another country prima facie constitutes prior publication and is liable to be rejected.—Lintech Electronics (P) Ltd. v. Marvel Engineering Co. 1995 (35) DRJ 11
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1. Substituted for “it has been accepted” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
1[Consideration of the report of examiner by Controller. Where, in respect of an application for a patent, the report of the examiner received by the Controller is adverse to the applicant or requires any amendment of the application, the specification or other documents to ensure compliance with the provisions of this Act or of the rules made thereunder, the Controller, before proceeding to dispose of the application in accordance with the provisions hereinafter appearing, shall communicate as expeditiously as possible the gist of the objections to the applicant and shall, if so required by the applicant within the prescribed period, give him an opportunity of being heard.
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1. Substituted for existing sections 14 and 15 by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
Where the Controller is satisfied that the application or any specification or any other document filed in pursuance thereof does not comply with the requirements of this Act or of any rules made thereunder, the Controller may refuse the application or may require the application, specification or the other documents, as the case may be, to be amended to his satisfaction before he proceeds with the application and refuse the application on failure to do so.]
(1) A person who has made an application for a patent under this Act may, at any time 1[before the grant of the patent], if he so desires, or with a view to remedy the objection raised by the Controller on the ground that the claims of the complete specification relate to more than one invention, file a further application in respect of an invention disclosed in the provisional or complete specification already filed in respect of the first-mentioned application.
(2) The further application under sub-section (1) shall be accompanied by a complete specification but such complete specification shall not include any matter not in substance disclosed in the complete specification filed in pursuance of the first-mentioned application.
(3) The Controller may require such amendment of the complete specification filed in pursuance of either the original or the further application as may be necessary to ensure that neither of the said complete specification includes a claim for any matter claimed in the other.
2[Explanation: For the purposes of this Act, the further application and the complete specification accompanying it shall be deemed to have been filed on the date on which the first mentioned application had been filed, and the further application shall be proceeded with as a substantive application and be examined when the request for examination is filed within the prescribed period.]
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1. Substituted for “before the acceptance of the complete specification” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted by the Patents (Amdt.) Act. 2005, w.e.f. 1-1-2005.
(1) Subject to the provisions of section 9, at any time after the filing of an application and 1[before the grant of the patent] under this Act, the Controller may, at the request of the applicant made in the prescribed manner, direct that the application shall be post-dated to such date as may be specified in the request, and proceed with the application accordingly:
PROVIDED that no application shall be post-dated under this sub-section to a date later than six months from the date on which it was actually made or would, but for the provisions of this sub-section, be deemed to have been made..
2[(2) Where an application or specification (including drawings) or any other document is required to be amended under section 15, the application or specification or other document shall, if the Controller so directs, be deemed to have been made on the date on which the requirement is complied with or where the application or specification or other document is returned to the applicant on the date on which it is re-filed after complying with the requirement.]
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1. Substituted for “before acceptance of the complete specification” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561 (E), dt. 20-5-2003.
(1) Where it appears to the Controller that the invention so far as claimed in any claim of the complete specification has been anticipated in the manner referred to in clause (a) of subsection (1) or sub-section (2) of section 13, he may refuse 1[the application] unless the applicant —
(a) shows to the satisfaction of the Controller that the priority date of the claim of his complete specification is not later than the date on which the relevant document was published; or
(b) amends his complete specification to the satisfaction of the Controller.
(2) If it appears to the Controller that the invention is claimed in a claim of any other complete specification referred to in clause (b) of sub-section (1) of section 13, he may, subject to the provisions hereinafter contained, direct that a reference to that other specification shall be inserted by way of notice to the public in the applicant’s complete specification unless within such time as may be prescribed—
(a) the applicant shows to the satisfaction of the Controller that the priority date of his claim is not later than the priority date of the claim of the said other specification; or
(b) the complete specification is amended to the satisfaction of the Controller;
(3) If it appears to the Controller, as a result of an investigation under section 13 or otherwise —
(a) that the invention so far as claimed in any claim of the applicant’s complete specification has been claimed in any other complete specification referred to in clause (a) of sub-section (1) of section 13; and
(b) that such other complete specification was published on or after the priority date of the applicant’s claim, then, unless it is shown to the satisfaction of the Controller that the priority date of the applicant’s claim is not later than the priority date of the claim of that specification, the provisions of sub-section (2) shall apply thereto in the same manner as they apply to a specification published on or after the date of filing of the applicant’s complete specification.
2[(4) xxx]
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1. Substituted for “to accept the complete specification” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) If, in consequence of the investigation required 1[under this Act] it appears to the Controller that an invention in respect of which an application for a patent has been made cannot be performed without substantial risk of infringement of a claim of any other patent, he may direct that a reference to that other patent shall be inserted in the applicant’s complete specification by way of notice to the public, unless within such time as may be prescribed—
(a) the applicant shows to the satisfaction of the Controller that there are reasonable grounds for contesting the validity of the said claim of the other patent; or
(b) the complete specification is amended to the satisfaction of the Controller.
(2) Where, after a reference to another patent has been inserted in a complete specification in pursuance of a direction under sub-section (1)—
(a) that other patent is revoked or otherwise ceases to be in force; or
(b) the specification of that other patent is amended by the deletion of the relevant claim; or
(c) it is found, in proceedings before the court of the Controller, that the relevant claim of that other patent is invalid or is not infringed by any working of the applicant’s invention.
the Controller may, on the application of the applicant, delete the reference to that other patent.
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1. Substituted for “by the foregoing provisions of this Act or of proceedings under section 25″ by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) If the Controller is satisfied on a claim made in the prescribed manner at any time before a patent has been granted, that by virtue of any assignment or agreement in writing made by the applicant or one of the applicants for the patent or by operation of law, the claimant would, if the patent were then granted, be entitled thereto or to the interest of the applicant therein, or to an undivided share of the patent or of that interest, the Controller may, subject to the provisions of this section, direct that the application shall proceed in the name of the claimant or in the names of the claimants and the applicant or the other joint applicant or applicants, accordingly as the case may require.
(2) No such direction as aforesaid shall be given by virtue of any assignment or agreement made by one of two or more joint applicants for a patent except with the consent of the other joint applicant or applicants.
(3) No such direction as aforesaid shall be given by virtue of any assignment or agreement for the assignment of the benefit of an invention unless—
(a) the invention is identified therein by reference to the number of the application for the patent; or
(b) there is produced to the Controller an acknowledgment by the person by whom the assignment or agreement was made that the assignment or agreement relates to the invention in respect of which that application is made; or
(c) the rights of the claimant in respect of the invention have been finally established by the decision of a court; or
(d) the Controller gives directions for enabling the application to proceed or for regulating the manner in which it should be proceeded with under sub-section (5).
(4) Where one of two or more joint applicants for a patent dies at any time before the patent has been granted, the Controller may, upon a request in that behalf made by the survivor or survivors and with the consent of the legal representative of the deceased, direct that the application shall proceed in the name of the survivor or survivors alone.
(5) If any dispute arises between joint applicants for a patent whether or in what manner the application should be proceeded with, the Controller; may, upon application made to him in the prescribed manner by any of the parties, and after giving to all parties concerned an opportunity to be heard, give such directions as he thinks fit for enabling the application to proceed in the name of one or more of the parties alone or for regulating the manner in which it should be proceeded with, or for both those purposes, as the case may require.
1[Time for putting application in order for grant. (1) An application for a patent shall be deemed to have been abandoned unless, within such period as may be prescribed, the applicant has complied with all the requirements imposed on him by or under this Act, whether in connection with the complete specification or otherwise in relation to the application from the date on which the first statement of objections to the application or complete specification or other documents related thereto is forwarded to the applicant by the Controller.
Explanation : Where the application for a patent or any specification or, in the case of a convention application or an application filed under the Patent Cooperation Treaty designating India any document filed as part of the application has been returned to the applicant by the Controller in the course of the proceedings, the applicant shall not be deemed to have complied with such requirements unless and until he has refiled it or the applicant proves to the satisfaction of the Controller that for the reasons beyond his control such document could not be re-filed.
(2) If at the expiration of the period as prescribed under sub-section (1),—
(a) an appeal to the High Court is pending in respect of the application for the patent for the main invention; or
(b) in the case of an application for a patent of addition, an appeal to the High Court is pending in respect of either that application or the application for the main invention, the time within which the requirements of the Controller shall be complied with shall, on an application made by the applicant before the expiration of the period as prescribed under sub-section (1), be extended until such date as the High Court may determine.
(3) If the time within which the appeal mentioned in sub-section (2) may be instituted has not expired, the Controller may extend the period as prescribed under sub-section (1), to such further period as he may determine:
PROVIDED that if an appeal has been filed during the said further period, and the High Court has granted any extension of time for complying with the requirements of the Controller, then the requirements may be complied with within the time granted by the Court.]
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1. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
1[xxx]
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1. Sections 22 to 24 omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
1[xxx]
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1. Sections 22 to 24 omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
1[xxx]
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1. Sections 22 to 24 omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
1[x x x]
2[OPPOSITION PROCEEDINGS TO GRANT OF PATENTS]
3[Opposition to the patent. (1) Where an application for a patent has been published but a patent has not been granted, any person may, in writing, represent by way of opposition to the Controller against the grant of patent on the ground—
(a) that the applicant for the patent or the person under or through whom he’ claims, wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims;
(b) that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim—
(i) in any specification filed in pursuance of an application for a patent made in India on or after the 1st day of January 1912; or
(ii) in India or elsewhere, in any other document:
PROVIDED that the ground specified in sub-clause (ii) shall not be available where such publication does not constitute an anticipation of the invention by virtue of sub-section (2) or sub-section (3) of section 29;
(c) that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the applicant’s claim and filed in pursuance of an application for a patent in India, being a claim of which the priority date is earlier than that of the applicant’s claim;
(d) that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date of that claim.
Explanation : For the purposes of this clause, an invention relating to a process for which a patent is claimed shall be deemed to have been publicly known or publicly used in India before the priority date of the claim if a product made by that process had already been imported into India before }., that date except where such importation has been for the purpose of reasonable trial or experiment only;
(e) that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what : was used in India before the priority date of the applicant’s claim;
(f) that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patentable under this Act; .
(g) that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed;
(h) that the applicant has failed to disclose to the Controller the information required by section 8 or has furnished the information which in any material particular was false to his knowledge;
(i) that in the case of convention application, the application was not made within twelve months from the date of the first application for protection for the invention made in a convention country by the applicant or a person from whom he derives title;
(j) that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention;
(k) that the invention so far as claimed in any claim of the complete specification is anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere, but on no other ground and the Controller shall, if requested by such person for being heard, hear him and dispose of such representation in such manner and within such period as may be prescribed.
(2) At any time after the grant of patent but before the expiry of a period of one year from the date of publication of grant of a patent, any person interested may give notice of opposition to the Controller in the prescribed manner on any of the following grounds, namely:—
(a) that the patentee or the person under or through whom the claims, wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims;
(b) that the invention so far as claimed in any claim of the complete specification has been published before the priority date of the claim—
(i) in any specification filed in pursuance of an application for a patent made in India on or after the 1st day of January, 1912; or
(ii) in India or elsewhere, in any other document:
PROVIDED that the ground specified in sub-clause (ii) shall not be available where such publication does not constitute an anticipation of the invention by virtue of subsection (2) or sub-section (3) of section 29;
(c) that the invention so far as claimed in any claim of the complete specification is claimed in a claim of a complete specification published on or after the priority date of the claim of the patentee and filed in pursuance of an application for patent in India, being a claim of which the priority date is earlier than that of the claim of the patentee;
(d) that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date of that claim.
Explanation : For the purposes of this clause, an invention relating to a process for which a patent is granted shall be deemed to have been publicly known or publicly used in India before the priority date of the claim if a product made by that process had already been imported into India before that date except where such importation has been for the purpose of reasonable trial or experiment only;
(e) that the invention so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step, having regard to the matter published as mentioned in clause (b) or having regard to what was used in India before the priority date of the claim;
(f) that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patentable under this Act;
(g) that the complete specification does not sufficiently and clearly describe the invention or the method by which it is to be performed;
(h) that the patentee has failed to disclose to the Controller the information required by section 8 or has furnished the information which in any material particular was false to his knowledge;
(i) that in the case of a patent granted on convention application, the application for patent was not made within twelve months from the date of the first application for protection for the invention made in a convention country or in India by the patentee or a person from whom he derives title;
(j) that the complete specification does not disclose or wrongly mentions the source and geographical origin of biological material used for the invention;
(k) that the invention so far as claimed in any claim of the complete specification was anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere but on no other ground.
(3)(a) Where any such notice of opposition is duly given under sub-section (2), the Controller shall notify the patentee.
(b) On receipt of such notice of opposition, the Controller shall, by order in writing, constitute a Board to be known as the Opposition Board consisting of such officers as he may determine and refer such notice of opposition along with the documents to that Board for examination and submission of its recommendations to the Controller.
(c) Every Opposition Board constituted under clause (b) shall conduct the : examination in accordance with such procedure as may be prescribed.
(4) On receipt of the recommendation of the Opposition Board and after giving the patentee and the opponent an opportunity of being heard, the Controller shall order either to maintain or to amend or to revoke the patent.
(5) While passing an order under sub-section (4) in respect of the ground mentioned in clause (d) or clause (e) of sub-section (2), the Controller shall not take into account any personal document or secret trial or secret use.
(6) In case the Controller issues an order under sub-section (4) that the patent shall be maintained subject to amendment of the specification or any other document, the patent shall stand amended accordingly.
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1. Chapter IVA containing sections 24A to 24F omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted for “OPPOSITION TO GRANT OF PATENT” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. Existing sections 25 and 26 substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) Where in any opposition proceeding under this Act the Controller finds that—
(a) the invention, so far as claimed in any claim of the complete specification, was obtained from the opponent in the manner set out in clause (a) of sub-section (2) of section 25 and revokes the patent on that ground, he may, on request by such opponent made in the prescribed manner, direct that the patent shall stand amended in the name of the opponent;
(b) a part of an invention described in the complete specification was so obtained from the opponent, he may pass an order requiring that the specification be amended by the exclusion of that part of the invention.
(2) Where an opponent has, before the date of the order of the Controller requiring the amendment of a complete specification referred to in clause (b) of sub-section (1), filed an application for a patent for an invention which included the whole or a part of the invention held to have been obtained from him and such application is pending, the Controller may treat such application and specification insofar as they relate to the invention held to have been obtained from him, as having been filed, for the purposes of this Act relating to the priority dates of claims of the complete specification, on the date on which the corresponding document was or was deemed to have been filed by the patentee in the earlier application but for all other purposes the application of the opponent shall be proceeded with as an application for a patent under this Act.]
1[x x x]
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1. Omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) If the controller is satisfied, upon a request or claim made in accordance with the provisions of this section—
(a) that the person in respect of or by whom the request or claim is made is the’ inventor of an invention in respect of which application for a patent has been made, or of a substantial part of that invention; and
(b) that the application for the patent is a direct consequence of his being the inventor, the Controller shall, subject to the provisions of this section, cause him to be mentioned as inventor in any patent granted in pursuance of the application in the complete specification and in the register of patents:
PROVIDED that the mention of any person as inventor under this section shall not confer or derogate from any rights under the patent.
(2) A request that any person shall be mentioned as aforesaid may be made in the prescribed manner by the applicant for the patent or (where the person alleged to be the inventor is not the applicant or one of the applicants) by the applicant and that person.
(3) If any person [other than a person in respect of whom a request in relation to the application in question has been made under sub-section (2),] desires to be mentioned as aforesaid, he may make a claim in the prescribed manner in that behalf.
2[(4) A request or claim under the foregoing provisions of this section shall be made before the grant of patent.]
1[(5) xxx]
(6) 3[Where] a claim is made under sub-section (3), the Controller shall give notice of the claim to every applicant for the patent (not being the claimant) and to any other person whom the Controller may consider to be interested; and before deciding upon any request or claim made under sub-section (2) or sub-section (3), the Controller shall, if required, hear the person in respect of or by whom the request or claim is made, and, in the case of a claim under sub-section (3), any person to whom notice of the claim has been given as aforesaid.
(7) Where any person has been mentioned as inventor in pursuance of this section, any other person who alleges that he ought not to have been so mentioned may at any time apply to the Controller for a certificate to that effect, and the Controller may, after hearing, if required, any person whom he may consider to be interested, issue such a certificate, and if he does so, he shall rectify the specification and the register accordingly.
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1. Omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. Substituted for “Subject to the provisions of sub-section (5), where” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) An invention claimed in a complete specification shall not be deemed to have been ant.; cipated by reason only that the invention was published in a specification filed in pursuance of an application for a patent made in India and dated before the 1st day of January, 1912.
(2) Subject as hereinafter provided, an invention claimed in a complete specification shall not be deemed to have been anticipated by reason only that the invention was published before the priority date of the relevant claim of the specification, if the patentee or the applicant for the patent proves—
(a) that the matter published was obtained from him, or (where he is not himself the true and first inventor) from any person from whom he derives title and was published without his consent or the consent of any such person; and
(b) where the patentee or the applicant for the patent or any person from whom he derives title learned of the publication before the date of the application for the patent, or in the case of a convention application, before the date of the application for protection in a convention country, that the application or the application in the convention country, as the case may be, was made as soon, as reasonably practicable thereafter:
PROVIDED that this sub-section shall not apply if the invention was before the priority date of the claim commercially worked in India, otherwise than for the purpose of reasonable trial, either by the patentee or the applicant for the patent or any person from whom he derives title or by any other person with the consent of the patentee or the applicant for the patent or any person from whom he derives title.
(3) Where a complete specification is filed in pursuance of an application for a patent made by a person being the true and first inventor or deriving title from him, an invention claimed in that specification shall not be deemed to have been anticipated by reason only of any other application for a patent in respect of the same invention made in contravention of the rights of that person, or by reason only that after the date of filing of that other application the invention was used or published, without the consent of that person, by the applicant in respect of that other application, or by any other person in consequence of any disclosure of any invention by that applicant.
An invention claimed in a complete specification shall not be deemed to have been anticipated by reason only of the communication of the invention to the government or to any person authorised by the government to investigate the invention or its merits, or of anything done, in consequence of such a communication, for the purpose of the investigation.
An invention claimed in a complete specification shall not be deemed to have been anticipated by reason only of—
(a) the display of the invention with the consent of the true and first inventor or a person deriving title from him at an industrial or other exhibition to which the provisions of this section have been extended by the Central Government by notification, in the Official Gazette, or the use thereof with his consent for the purpose of such an exhibition in the place where it is held; or
(b) the publication of any description of the invention in consequence of the display or use of the invention at any such exhibition as aforesaid; or
(c) the use of the invention, after it has been displayed or used at any such exhibition as aforesaid and during the period of the exhibition, by any person without the consent of the true and first inventor or a person deriving title from him; or
(d) the description of the invention in a paper read by the true and first inventor before a learned society or published with his consent in the transactions of such a society, if the application for the patent is made by the true and first inventor or a person deriving title from him 1[not later than twelve months] after the opening of the exhibition or the reading or publication of the paper, as the case may be.
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1. Substituted for “not later than six months” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
An invention claimed in a complete specification shall not be deemed to have been anticipated by reason only that at any time within one year before the priority date of the relevant claim of the specification, the invention was publicly worked in India—
(a) by the patentee or applicant for the patent or any person from whom he derives title; or
(b) by any other person with the consent of the patentee or applicant for the patent or any person from whom he derives title, if the working was effected for the purpose of reasonable trial only and if it was reasonably necessary, having regard to the nature of the invention, that the working for that purpose should be effected in public.
(1) Where a complete specification is filed or proceeded with in pursuance of an application which was accompanied by a provisional specification or where a complete specification filed along with an application is treated by virtue of a direction under sub-section (3) of section 9 as a provisional specification, then, notwithstanding anything contained in this Act, the Controller shall not refuse to grant the patent, and the patent shall not be revoked or invalidated, by reason only that any matter described in the provisional specification or in the specification treated as aforesaid as a provisional specification was used in India or published in India or elsewhere at any time after the date of the filing of that specification.
(2) Where a complete specification is filed in pursuance of a convention application, then, notwithstanding anything contained in this Act, the Controller shall not refuse to grant the patent, and the patent shall not be revoked or invalidated, by reason only that any matter disclosed in any application for protection in a convention country upon which the convention application is founded was used in India or published in India or elsewhere at any time after the date of that application for protection.
Notwithstanding anything contained in this Act, the Controller shall not refuse 1[x x x] to grant a patent, and a patent shall not be revoked or invalidated by reason only of any circumstances which, by virtue of section 29 or section 30 or section 31 or section 32 do not constitute an anticipation of the invention claimed in the specification.
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1. Words “to accept complete specification for a patent or” omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) Where, in respect of an application made before or after the commencement of this Act for a patent, it appears to the Controller that the invention is one of a class notified to him by the Central Government as relevant for defence purposes, or, where otherwise the invention appears to him to be so relevant, he may give directions for prohibiting or restricting the publication of information with respect to the invention or the communication of such information 1[xxx].
(2) Where the Controller gives any such directions as are referred to in sub-section (1), he shall give notice of the application and of the directions to the Central Government, and the Central Government shall, upon receipt of such notice, consider whether the publication of the invention would be prejudicial to the defence of India, and if upon such consideration, it appears to it that the publication of the invention would not so prejudice, give notice to the Controller to that effect, who shall thereupon revoke the directions and notify the applicant accordingly.
(3) Without prejudice to the provisions contained in sub-section (1), where the Central Government is of opinion that an invention in respect of which the Controller has not given any directions under sub-section (1), is relevant for defence purposes, it may at any time before 2[grant of patent] notify the Controller to that effect, and thereupon the provisions of that subsection shall apply as if the invention were one of the class notified by the Central Government of the directions issued by him.
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1. Words “to any person or class of persons specified in the directions” omitted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561 (E), dt. 20-5-2003.
2. Substituted for “acceptance of the complete specification” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
1[(1) The question whether an invention in respect of which directions have been given under section 35 continues to be relevant for defence purposes shall be re-considered by the Central Government at intervals of 2[six] months or on a request made by the applicant which is found to be reasonable by the Controller, and if, on such re-consideration, it appears to the Central Government that the publication of the invention would no longer be prejudicial to the defence of India or in case of an application filed by a foreign applicant it is found that the invention is published outside India it shall forthwith give notice to the Controller to revoke the direction and the Controller shall thereupon revoke the directions previously given by him.]
(2) The result of every re-consideration under sub-section (1), shall be communicated to the applicant within such time and in such manner as may be prescribed.
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1. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561 (E), dt. 20-5-2003.
2. Substituted for “twelve” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) So long as any directions under section 35 are in force in respect of an application—
(a) the Controller shall not pass an order refusing 1[to grant] the same; and
(b) notwithstanding anything contained in this Act, no appeal shall lie from any order of the Controller passed in respect thereof:
2[PROVIDED that the application may, subject to the directions, proceed upto the stage of grant of the patent, but the application and the specification found to be in order for grant of the patent shall not be published, and no patent shall be granted in pursuance of that application.]
(2) Where a complete specification filed in pursuance of an application for a patent for an invention in respect of which directions have been given under section 35 3[is found to be in order for grant of the patent] during the continuance in force of the directions, then—
(a) if, during the continuance in force of the directions; any use of the invention is made by or on behalf of, or to the order of the government, the provisions of sections 100,101 and 103 shall apply in relation to that use as if the patent had been granted for the invention; and
(b) if it appears to the Central Government that the applicant for the patent has suffered hardship by reason of the continuance in force of the directions the Central Government may make to him such payment (if any) by way of solatium as appears to the Central Government to be reasonable having regard to the novelty and utility of the invention and the purpose for which it is designed, and to any other relevant circumstances.
(3) Where a patent is granted in pursuance of an application in respect of which directions have been given under section 35, no renewal fee shall be payable in respect of any period during which those directions were in force.
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1. Substituted for “to accept” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. Substituted for “is accepted” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
When any direction given under section 35 is revoked by the Controller, then, notwithstanding any provisions of this Act specifying the time within which any step should be taken or any act done in connection with an application for the patent, the Controller may, subject to such conditions, if any, as he thinks fit to impose, extend the time for doing anything required to be done by or under this Act in connection with the application, whether or not that time has previously expired.
1[Residents not to apply for patents outside India without prior permission. (1) No person resident in India shall, except under the authority of a written permit sought in the manner prescribed and granted by or on behalf of the Controller, make or cause to be made any application outside India for the grant of a patent for an invention unless—
(a) an application for a patent for the same invention has been made in India, not less than six weeks before the application outside India; and
(b) either no direction has been given under sub-section (1) of section 35 in relation to the application in India, or all such directions have been revoked.
(2) The Controller shall dispose of every such application within such period as may be prescribed:
PROVIDED that if the invention is relevant for defence purpose or atomic energy, the Controller shall not grant permit without the prior consent of the Central Government.
(3) This section shall not apply in relation to an invention for which an application for protection has first been filed in a country outside India by a person resident outside India.]
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1. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
Without prejudice to the provisions contained in Chapter XX, if in respect of an application for a patent any person contravenes any direction as to secrecy given by the Controller under section 35, or makes or causes to be made an application for grant of a patent outside India in contravention of section 39 the application for patent under this Act shall be deemed to have been abandoned and the patent granted, if any, shall be liable to be revoked under section 64.
All orders of the Controller giving directions as to secrecy as well as all orders of the Central Government under this Chapter shall be final and shall not be called in question in any court on any ground whatsoever.
Nothing in this Act shall be held to prevent the disclosure by the Controller of information concerning an application for a patent or a specification filed in pursuance thereof to the Central Government for the purpose of the application or specification being examined for considering whether an order under this Chapter should be made or whether an order so made should be revoked.
1[GRANT OF PATENTS AND RIGHTS CONFERRED THEREBY]
2[Grant of patents. (1) Where an application for a patent has been found to be in order for grant of the patent and either—
(a) the application has not been refused by the Controller by virtue of any power vested in him by this Act; or
(b) the application has not been found to be in contravention of any of the provisions of this Act,the patent shall be granted as expeditiously as possible to the applicant or, in the case of a joint application, to the applicants jointly, with the seal of the patent office and the date on which the patent is granted shall be entered in the register.
(2) On the grant of patent, the Controller shall publish the fact that the patent has been granted and thereupon the application, specification and other documents related thereto shall be open for public inspection.]
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1. Substituted for “GRANT AND SEALING OF PATENTS AND RIGHTS CONFERRED THEREBY” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
Where, at any time after a patent has been 1[granted] in pursuance of an application under this Act, the Controller is satisfied that the person to whom the patent was granted had died, or, in the case of a body corporate, had ceased to exist, before the patent was 1[granted], the Controller may amend the patent by substituting for the name of that person the name of the person to whom the patent ought to have been granted, and the patent shall be deemed always to have had effect, accordingly.
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1. Substituted for “sealed” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
1[(1) Subject to the other provisions contained in this Act, every patent shall be dated as of the date on which the application for patent was filed.]
(2) The date of every patent be entered in the register.
(3) Notwithstanding anything contained in this section, no suit or other proceeding shall be commenced or prosecuted in respect of an infringement committed before 2[the date of publication of the application].
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1. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
2. Substituted for “the date of advertisement of the acceptance of the complete specification” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) Every patent shall be in the prescribed form and shall have effect throughout India.
(2) A patent shall be granted for one invention only:
PROVIDED that it shall not be competent for any person in a suit or other proceeding to take any objection to a patent on the ground that it has been granted for more than one invention.
The grant of a patent under this Act shall be subject to the condition that—
(1) any machine, apparatus or other article in respect of which the patent is granted or any article made by using a process in respect of which the patent is granted, may be imported or made by or on behalf of the government for the purpose merely of its own use;
(2) any process in respect of which the patent is granted may be used by or on behalf of the government for the purpose merely of its own use;
(3) any machine, apparatus or other article in respect of which the patent is granted or any article made by the use of the process in respect of which the patent is granted, may be made or used, and any process in respect of which the patent is granted may be used, by any person, for the purpose merely of experiment or research including the imparting of instructions to pupils; and
(4) in the case of a patent in respect of any medicine or drug, the medicine or drug may be imported by the government for the purpose merely of its own use or for distribution in any dispensary, hospital or other medical institution maintained by or on behalf of the government or any other dispensary, hospital or medical institution which the Central Government may, having regard to the public service that such dispensary, hospital or medical institution renders, specify in this behalf by notification in the Official Gazette.
1[Rights of patentees. Subject to the other provisions contained in this Act and the conditions specified in section 47, a patent granted under this Act shall confer upon the patentee—
(a) where the subject matter of the patent is a product, the exclusive right to prevent third parties, who do not have his consent, from the act of making, using, offering for sale, selling or importing for those purposes that product in India:
(b) where the subject matter of the patent is a process the exclusive right to prevent third parties, who do not have his consent, from the act of using that process, and from the act of using, offering for sale, selling or importing for those purposes the product obtained directly by that process in India:
2[x x x]
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1. Substituted by the Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide SO 561(E), dt. 20-5-2003.
2. Proviso omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
Patent rights not infringed when used on foreign vessels, etc. temporarily or accidentally in India. (1) Where a vessel or aircraft registered in a foreign country or a land vehicle owned by a person ordinarily resident in such country comes into India (including the territorial waters thereof) temporarily or accidentally only, the rights conferred by a patent for an invention shall not be deemed to be infringed by the use of the invention—
(a) in the body of the vessel or in the machinery, tackle, apparatus or other – accessories thereof, so far as the invention is used on board the vessel and for its actual needs only; or
(b) in the construction or working of the aircraft or land vehicle or of the accessories thereof, as the case may be.
(2) This section shall not extend to vessels, aircraft or land vehicles owned by persons ordinarily resident in a foreign country the law of which do not confer corresponding rights with respect to the use of inventions in vessels, aircraft or land vehicles owned by persons ordinarily resident in India while in the ports or within the territorial waters of that foreign country or otherwise within the jurisdiction of its courts.
(1) Where a patent is granted to two or more persons, each of those persons shall, unless an agreement to the contrary is in force, be entitled to an equal undivided share in the patent.
(2) Subject to the provisions contained in this section and in section 51, where two or more persons are registered as grantee or proprietor of a patent, then, unless an agreement to the contrary is in force, each of those persons shall be entitled, by himself or his agents, to 1[the rights conferred by section 48] for his own benefit without accounting to the other person or persons.
(3) Subject to the provisions contained in this section and in section 51 and to any agreement for the time being in force, where two or more persons are registered as grantee or proprietor of a patent, then, a licence under the patent shall not be granted and a share in the patent shall not be assigned by one of such persons except with the consent of the other person or persons.
(4) Where a patented article is sold by one of two or more persons registered as grantee or proprietor of a patent, the purchaser and any person claiming through him shall be entitled to deal with the article in the same manner as if the article had been sold by a sole patentee.
(5) Subject to the provisions contained in this section, the rules of law applicable to the ownership and devolution of movable property generally shall apply in relation to patents, and nothing contained in sub-section (1) or sub-section (2) shall affect the mutual rights or obligations of trustees or of the legal representatives of a deceased person or their rights or obligations as such.
(6) Nothing in this section shall affect the rights of the assignees of a partial interest in a patent created before the commencement of this Act.
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1. Substituted for “make, use, exercise and sell the patented invention” by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.0.561(E), dt. 20-5-2003.
(1) Where two or more persons are registered as grantee or proprietor of a patent, the Controller may, upon application made to him in the prescribed manner by any of those persons, give such directions in accordance with the application as to the sale or lease of the patent or any interest therein, the grant of licence under the patent, or the exercise of any right under section 50 in relation thereto, as he thinks fit.
(2) If any person registered as grantee or proprietor of a patent fails to execute any instrument or to do any other thing required for the carrying out of any direction given under this section within fourteen days after being requested in writing so to do by any of the other persons so registered, the Controller may upon application made.to him in the prescribed manner by any such other person give directions empowering any person to execute that instrument or to do that in the name and on behalf of the person in default.
(3) Before giving any directions in pursuance of an application under this section, the Controller shall give an opportunity to be heard—
(a) in the case of an application under sub-section (1), to the other person or persons registered as grantee or proprietor of the patent;
(b) in the case of an application under sub-section (2), to the person in default.
(4) No direction shall be given under this section so as to affect the mutual rights or obligations of trustees or of the legal representatives of a deceased person or of their rights or obligations as such, or which is inconsistent with the terms of any agreement between persons registered as grantee or proprietor of the patent.
(1) 1[Where the patent has been revoked under section 64] on the ground that the patent was obtained wrongfully and in contravention of the rights of the petitioner or any person under or through whom he claims, or, where in a petition for revocation, the 2[Appellate Board or court], instead of revoking the patent, directs the complete specification to be amended by the exclusion of a claim or claims in consequence of a finding that the invention covered by such claim or claims had been obtained from the petitioner, the 2[Appellate Board or court] may, by order passed in the same proceeding, permit the grant to the petitioner of the whole or such part of the invention which the court finds has been wrongfully obtained by the patentee, in lieu of the patent so revoked or is excluded by amendment.
(2) Where any such order is passed, the Controller shall, on request by the petitioner made in the prescribed manner grant to him—
(i) in cases where the 3[Appellate Board or court] permits the whole of the patent to be granted, a new patent bearing the same date and number as the patent revoked;
(ii) in cases where the 3[Appellate Board or court] permits a part only of the patent to be granted, a new patent for such part bearing the same date as the patent revoked and numbered in such manner as may be prescribed:
PROVIDED that the Controller may, as a condition of such grant, require the petitioner to file a new and complete specification to the satisfaction of the Controller describing and claiming that part of the invention for which the patent is to be granted.
(3) No suit shall be brought for any infringement of a patent granted under this section committed before the actual date on which such patent was granted.
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1. Substituted for “Where a patent has been revoked” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted for “court” by the Patents (Amdt.) Act, 2005, effective date to be notified.
3. Substituted for “court” by the Patents (Amdt.) Act, 2005, effective date to be notified.
1[(1) Subject to the provisions of this Act, the term of every patent granted, after the commencement of the Patents (Amendment) Act, 2002, and the term of every patent which has not expired and has not ceased to have effect, on the date of such commencement, under this Act, shall be twenty years from the date of filing of the application for the patent.]
2[Explanation : For the purposes of this sub-section, the term of patent in case of International applications filed under the Patent Cooperation Treaty designating India, shall be twenty years from the international filing date accorded under the Patent Cooperation Treaty.]
(2) A patent shall cease to have effect notwithstanding anything therein or in this Act on the expiration of the period prescribed for the payment of any renewal fee, if that fee is not paid within the prescribed period 3[or within such extended period as may be prescribed].
4[(3) xxx]
5[(4) Notwithstanding anything contained in any other law for the time being in force, on cessation of the patent right due to non-payment of renewal fee or on the expiry of the term of patent, the subject matter covered by the said patent shall not be entitled to any protection.]
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1. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
2. Inserted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. Substituted for “or within that period as extended under this section” by the Patents (Amdt) Act, 2005, w.e.f. 1-1-2005.
4. Omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
5. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
(1) Subject to the provisions contained in this section, where an application is made for a patent in respect of any improvement in or modification of an invention described or disclosed in the complete specification filed therefor (in this Act referred to as the “main invention”) and the applicant also applies or has applied for a patent for that invention or is the patentee in respect thereof, the Controller may, if the applicant so requests, grant the patent for the improvement or modification as a patent of addition.
(2) Subject to the provisions contained in this section, when an invention, being an improvement in or modification of another invention, is the subject of an independent patent and the patentee in respect of that patent is also the patentee in respect of the patent for the main invention, the Controller may, if the patentee so requests, by order, revoke the patent for the improvement or modification and grant to the patentee a patent of addition in respect thereof, bearing the same date as the date of the patent so revoked.
(3) A patent shall not be granted as a patent of addition unless the date of filing of the 1[application] was the same as or later than the date of filing of the 1[application] in respect of the main invention.
2[(4) A patent of addition shall not be granted before grant of the patent for the main invention.]
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1. Substituted for “complete specification” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) A patent of addition shall be granted for a term equal to that of the patent for the main invention, or so much thereof as has not expired, and shall remain in force during that term or until the previous cesser of the patent for the main invention and no longer:
PROVIDED that if the patent for the main invention is revoked under this Act, the court, or, as the case may be, the Controller, on request made to him by the patentee in the prescribed manner, may order that the patent of addition shall become an independent patent for the remainder of the term for the patent for the main invention and thereupon the patent shall continue in force as an independent patent accordingly.
(2) No renewal fees shall be payable in respect of a patent of addition, but if any such patent becomes an independent patent under sub-section (1), the same fees shall thereafter be payable, upon the same dates, as if the patent had been originally granted as an independent patent.
(1) The grant of a patent of addition shall not be refused, and a patent granted as a patent of addition shall not be revoked or invalidated, on the ground only that the invention claimed in the complete specification does not involve any inventive step having regard to any publication or use of—
(a) the main invention described in the complete specification relating thereto; or .
(b) any improvement in or modification of the main invention described in the complete specification of a patent of addition to the patent for the main invention or of an application for such a patent of addition, and the validity of a patent of addition shall not be questioned on the ground that the invention ought to have been the subject of an independent patent.
(2) For the removal of doubts it is hereby declared that in determining the novelty of the invention claimed in the complete specification filed in pursuance of an application for a patent of addition regard shall be had also to the complete specification in which the main invention is described.
(1) Subject to the provisions of section 59, the Controller may, upon application made under this section in the prescribed manner by an applicant for a patent or by a patentee, allow the application for the patent or the complete specification 1[or any document relating thereto] to be amended subject to such conditions, if any, as the Controller thinks fit:
PROVIDED that the Controller shall not pass any order allowing or refusing an application to amend an application for a patent or a specification 1[or any document relating thereto] under this section while any suit before a court for the infringement of the patent or any proceeding before the High Court for the revocation of the patent is pending, whether the suit or proceeding commenced before or after the filing of the application to amend.
(2) Every application for leave to amend an application for a patent 2[or a complete specification or any document relating thereto] under this section shall state the nature of the proposed amendment, and shall give full particulars of the reasons for which the application is made.
3[(3) Any application for leave to amend an application for a patent or a complete specification or a document related thereto under this section made after the grant of patent and the nature of the proposed amendment may be published.]
(4) Where an application is 4[published] under sub-section (3), any person interested may, within the prescribed period after the 5[publication] thereof, give notice to the Controller of opposition thereto; and where such a notice is given within the period aforesaid, the Controller shall notify the person by whom the application under this section is made and shall give to the person and to the opponent an opportunity to be heard before he decides the case.
(5) An amendment under this section of a complete specification may be, or include, an amendment of the priority date of a claim.
3[(6) The provisions of this section shall be without prejudice to the right of an applicant for a patent to amend his specification or any other document related thereto to comply with the directions of the Controller issued before the grant of a patent.]
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1. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
2. Substituted for “or a specification”, by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
3. Substituted by the Patents (Amdt.) Act, 200S, w.e.f. 1-1-2005.
4. Substituted for “advertised” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
5. Substituted for “advertisement” by the Patent (Amdt.) Act, 2005, w.e.f. 1-1-2005.
1[Amendment of specification before Appellate Board or High Court. (1) In any proceeding before the Appellate Board or the High Court for the revocation of a patent, the Appellate Board or the High Court, as the case may be, may, subject to the provisions contained in section 59, allow the patentee to amend his complete specification in such manner and subject to such terms as to costs, advertisement or otherwise, as the Appellate Board or the High Court may think fit, and if, in any proceedings for revocation, the Appellate Board or the High Court decides that the patent is invalid, it may allow the specification to be amended under this section instead of revoking the patent.
(2) Where an application for an order under this section is made to the Appellate Board or the High Court, the applicant shall give notice of the application to the Controller, and the Controller shall be entitled to appear and be heard, and shall appear if so directed by the Appellate Board or the High Court.
(3) Copies of all orders of the Appellate Board or the High Court allowing the patentee to amend the specification shall be transmitted by the Appellate Board or the High Court to the Controller who shall, on receipt thereof, cause an entry thereof and reference thereto to be made in the register.]
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1. Substituted, ibid, w.e.f. the date to be notified.
1[(l) No amendment of an application for a patent or a complete specification or any document relating thereto shall be made except by way of disclaimer, correction or explanation, and no amendment thereof shall be allowed, except for the purpose of incorporation of actual fact, and no amendment of a complete specification shall be allowed, the effect of which would be that the specification as amended would claim or describe matter not in substance disclosed or shown in the specification before the amendment, or that any claim of the specification as amended would not fall wholly within the scope of a claim of the specification before the amendment.]
2[(2) Where after the date of grant of patent any amendment of the specification or any other documents related thereto is allowed by the Controller or by the Appellate Board or the High Court, as the case may be,—
(a) the amendment shall for all purposes be deemed to form part of the specification along with other documents related thereto;
(b) the fact that the specification or any other documents related thereto has been amended shall be published as expeditiously as possible; and
(c) the right of the applicant or patentee to make amendment shall not be called in question except on the ground of fraud.]
(3) In construing the specification as amended, reference may be made to the specification as originally accepted.
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1. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
2. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. the date to be notified.
(1) Where a patent has ceased to have effect by reason of failure to pay any renewal fee within the 1[period prescribed under section 53 or within such period as may be allowed under sub-section (4) of section 142], the patentee or his legal representative, and where the patent was held by two or more persons jointly, then, with the leave of the Controller, one or more of them without joining the others, may, within 2[eighteen months] from the date on which the patent ceased to have effect, make an application for the restoration of the patent.
[Omitted by Patents (Arndt.) Act, 2002, w.e.f. 20-5-2003 vide S.0.561(E), dt. 20-5-2003]
(3) An application under this section shall contain a statement, verified in the prescribed manner, fully setting out the circumstances which led to the failure to pay the prescribed fee, and the Controller may require from the applicant such further evidence as he may think necessary.
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1. Substituted for “prescribed period or within that period as extended under sub-section (3) of section53″ by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted for “one year” by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
(1) If, alter hearing the applicant in cases where the applicant so desires or the Controller thinks fit, the Controller is prima facie satisfied that the failure to pay the renewal fee was unintentional and that there has been no undue delay in the making of the application, he shall 1[ublish] the application in the prescribed manner; and within the prescribed period any person interested may give notice to the Controller of opposition thereto on either or both of the following grounds, that is to say—
(a) that the failure to pay the renewal fee was not unintentional; or ;
(b) that there has been undue delay in the making of the application.
(2) If notice of opposition is given within the period aforesaid, the Controller shall notify the applicant and shall give to him and to the opponent an opportunity to be heard before he decides the case.
(3) If no notice of opposition is given within the period aforesaid or if in the case of opposition, the decision of the Controller is in favour of the applicant, the Controller shall, upon payment of any unpaid renewal fee and such additional fee as may be prescribed, restore the patent and any patent of addition specified in the application which has ceased to have effect on the cesser, of that patent.
(4) The Controller may, if he thinks fit, as a condition of restoring the patent, require that an entry shall be made in the register of any document or matter which, under the provisions of this Act, has to be entered in the register but which has not been so entered.
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1. Substituted for “advertise” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) Where a patent is restored, the rights of the patentee shall be subject to such provisions as may be prescribed and to such other provisions as the Controller thinks fit to impose for the protection or compensation of persons who may have begun to avail themselves of, or have taken definite steps by contract or otherwise to avail themselves of, the patented invention between the date when the patent ceased to have effect and the date of the 1[publication] of the application for restoration of the patent under this chapter.
(2) No suit or other proceeding shall be commenced or prosecuted in respect of an infringement of a patent committed between the date on which the patent ceased to have effect and the date of 1[publication] of the application for restoration of the patent.
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1. Substituted for “advertisement” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) A patentee may, at any time by giving notice in the prescribed manner to the Controller, offer to surrender his patent.
(2) Where such an offer is made, the Controller shall 1[publish] the offer in the prescribed manner, and also notify every person other than the patentee whose name appears in the register as having an interest in the patent.
(3) Any person interested may, within the prescribed period after such 2[publi-cation], give notice to the Controller of opposition to the surrender, and where any such notice is given the Controller shall notify the patentee.
(4) If the Controller is satisfied after hearing the patentee and any opponent, if desirous of being heard, that the patent may properly be surrendered, he may accept the offer and, by order, revoke the patent.
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1. Substituted for “advertise” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted for “advertisement” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) Subject to the provisions contained in this Act, a patent, whether granted before or after the commencement of this Act, may, 1[be revoked on a petition of any person interested or of the Central Government by the Appellate Board or on a counterclaim in a suit for infringement of the patent by the High Court] on any of the following grounds, that is to say—
(a) that the invention, so far as claimed in any claim of the complete specification, was claimed in a valid claim of earlier priority date contained in the complete specification of another patent granted in India;
(b) that the pa tent was granted on the application of a person not entitled under the provisions of this Act to apply therefor: 2[xxxx]
(c) that the patent was obtained wrongfully in contravention of the rights of the petitioner or any person under or through whom he claims;
(d) that the subject of any claim of the complete specification is not an invention within the meaning of this Act;
(e) that the invention so far as claimed in any claim of the complete specification is not new, having regard to what was publicly known or publicly used in India before the priority date of the claim or to what was published in India or elsewhere in any of the documents referred to in section 13 : 2[xxxx]
(f) that the invention so far as claimed in any claim of the complete specification is obvious or does not involve any inventive step, having regard to what was publicly known or publicly used in India or what was published in India or elsewhere before the priority date of the claim; 2[xxx]
(g) that the invention, so far as claimed in any claim of the complete specification, is not useful;
(h) that the complete specification does not sufficiently and fairly describe the invention and the method by which it is to be performed, that is to say, that the description of the method or the instructions for the working of the invention, as contained in the complete specification are not by themselves sufficient to enable a person in India possessing average skill in, and average knowledge of, the art to which the invention relates, to work the invention, or that it does not disclose the best method of performing it which was known to the applicant for the patent and for which he was entitled to claim protection;
(i) that the scope of any claim of the complete specification is not sufficiently and clearly defined or that any claim of the complete specification is not fairly, based on the matter disclosed in the specification;
(j) that the patent was obtained on a false suggestion or representation;
(k) that the subject of any claim of the complete specification is not patentable under this Act;
(l) that the invention so far as claimed in any claim of the complete specification was secretly used in India, otherwise than as mentioned in sub-section (3), before the priority date of the claim;
(m) that the applicant for the patent has failed to disclose to the Controller the information required by section 8 or has furnished information which in any material particular was false to his knowledge;
(n) that the applicant contravened any direction for secrecy passed under section 35 3[or made or caused to be made an application for the grant of a patent outside India in contravention of section 39;]
(o) that leave to amend the complete specification under section 57 or section 58 was obtained by fraud.
3[(p) that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention;
(q) that the invention so far as claimed in any claim of the complete specification was anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere.]’
(2) For the purposes of clauses (e) and (f) of sub-section (1),—
(a) no account shall be taken of 4[personal document or secret trial or secret use]; and
(b) where the patent is for a process or for a product as made by a process described or claimed, the importation into India of the product made abroad by that process shall constitute knowledge or use in India of the invention on the date of the importation, except where such importation has been for the purpose of reasonable trial or experiment only.
(3) For the purpose of clause (1) of sub-section (1), no account shall be taken of any use of the invention—
(a) for the purpose of reasonable trial or experiment only; or
(b) by the government or by any person authorised by the government or by a government undertaking, in consequence of the applicant for the patent or any person from whom he derives title having communicated or disclosed the invention directly or indirectly to the government or person authorized as aforesaid or to the government undertakings; or
(c) by any other person, in consequence of the applicant for the patent or any person from whom he derives title having communicated or disclosed the , invention, and without the consent or acquiescence of the applicant or of any person from whom he derives title.
(4) Without prejudice to the provisions contained in sub-section (1), a patent may be revoked by the High Court on the petition of the Central Government, if the High Court is satisfied that the patentee has without reasonable cause failed to comply with the request of the Central Government to make, use or exercise the patented invention for the purposes of government within the meaning of section 99 upon reasonable terms.
(5) A notice of any petition for revocation of a patent under this section shall be served on all persons appearing from the register to be proprietors of that patent or to have shares or interest therein and it shall not be necessary to serve a notice on any other person.
S
To be entitled to the grant of an ad interim injunction, the plaintiff has to show existence of a prima facie case, balance of convenience in his favour, and irreparable injury. Sec. 107 of the Act clearly provides that in any suit for injunction, every ground on which it may be revoked shall be available as a ground of defence.—Franz Zaver Huemer v. New Yesh Engineers 1996 PTC (16) (Del) 164
To satisfy the requirement of being publicly known as used in clauses (e) and (f) of s. 64(1), it is not necessary that it should be widely used to the knowledge of the consumer public. It is sufficient if it is known to the persons who are engaged in the pursuit of the knowledge of the patented product or process either as men of science or men of commerce or consumers.— Monsanto Company v. Coramandal Indag Products (P) Ltd. AIR 1986 SC 712
There is a distinction maintained as between the defence raised to a suit for infringement of a patent (vide s. 107) on the one hand and the revocation sought of a patent on the other (vide s. 64). The grounds may be the same, but still there is no inconsistency on account of the suit being defended as liable to dismissal in a particular case and a case where the defendant seeks also that the patent asserted by the plaintiff be revoked. It is only when there is a counterclaim seeking revocation of the patent that the jurisdiction of the District Court is ousted. The proviso to s. 104 being in the nature of an exception to the general rule, it has to be strictly construed. There is no express claim on the part of the defendant for revocation whereof infringement is alleged by the plaintiff. That the defendant pleads that the patent set up by the plaintiff is invalid amounts only to the defendant raising a ground for the relief sought by the plaintiff being declined; it does not follow necessarily that the defendant also seeks by way of a counterclaim that the patent be revoked. The defendant has not asserted in the pleadings anywhere that they are the patentee or that they are entitled to be registered as such. The grounds raised are cumulatively and also individually by way of defence to the plaintiff’s action.— Fabcon Corporation v. Industrial Engineering Corporation AIR 1987 All 338
In Ram Narain Kher v. Ambassador Industries PTC (Suppl.) (1) 180 (Del), the defendant pleaded that the invention and the advantages claimed by the plaintiff had not been adequately described in the patent and adequately claimed in the claim to bring it within the ambit of the term “invention” within the meaning of the Act. The High Court held that the defendants having specifically raised the ground that claims made by the plaintiff in the patent were vague and did not describe the invention clearly and properly, are competent to claim revocation of the patent on that ground in the terms of section 64(1) of the Act.
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1. Substituted for “on the petition of any person interested or of the Central Government or on a counter-claim in a suit for infringement of the patent, be revoked by the High Court” by the Patents (Amdt.) Act, 2005, w.e.f. the date to be notified.
2. Proviso omitted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.0.561(E), dt. 20-5-2003.
3. Inserted by Patents (Amdt) Act, 2002, w.e.f. 20-5-2003 vide S.0.561(E), dt. 20-5-2003.
4. Substituted for “secret use”, ibid.
1[Revocation of patent or amendment of complete specification on directions from Government in cases relating to atomic energy. (1) Where at any time after grant of a patent, the Central Government is satisfied that a patent is for an invention relating to atomic energy for which no patent can be granted under sub-section (1) of section 20 of the Atomic Energy Act, 1962 (33 of 1962), it may direct the Controller to revoke the patent, and thereupon the Controller, after giving notice, to the patentee and every other person whose name has been entered in the register as having an interest in the patent, and after giving them an opportunity of being heard, may revoke the patent.
(2) In any proceedings under sub-section (1), the Controller may allow the patentee to amend the complete specification in such manner as he considers necessary instead of revoking the patent.]
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1. Substituted for existing sub-sec. (4) by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
Where the Central Government is of opinion that a patent or the mode in which it is exercised is mischievous to the State or generally prejudicial to the public, it may, after giving the patentee an opportunity to be heard, make a declaration to that effect in the Official Gazette and thereupon the patent shall be deemed to be revoked.
(1) There shall be kept at the patent office a register of patents, wherein shall be entered —
(a) the names and addresses of grantees of patents;
(b) notifications of assignments and of transmissions of patents, of-licences under patents, and of amendments, and revocations of patents; and
(c) particulars of such other matters affecting the validity or proprietorship of patents as may be prescribed.
(2) No notice of any trust, whether express, implied or constructive, shall be entered in the register, and the Controller shall not be affected by any such notice.
(3) Subject to the superintendence and direction of the Central Government, the register shall be kept under the control and management of the Controller.
1[(4) Notwithstanding anything contained in sub-section (1), it shall be lawful for the Controller to keep the register of patents or any part thereof in computer floppies, diskettes or any other electronic form subject to such safeguards as may be prescribed.
(5) Notwithstanding anything contained in the Indian Evidence Act, 1872, a copy of, or extracts from, the register of patents, certified to be a true copy under the hand of the Controller or any officer duly authorised by the Controller in this behalf shall, in all legal proceedings, be admissible in evidence.
(6) In the event the register is kept wholly or partly in computer floppies, diskettes or any other electronic form,—
(a) reference in this Act to an entry in the register shall be deemed to include reference to a record of particulars kept in computer floppies, diskettes or c. any other electronic form and comprising the register or part of the register;
(b) references in this Act to particulars being registered or entered in the register shall be deemed to include references to the keeping of record of those particulars comprising the register or part of the register in computer floppies, diskettes or any other electronic form; and
(c) references in this Act to the rectification of the register are to be read as including references to the rectification of the record of particulars kept in computer floppies, diskettes or any other electronic form and comprising the register or part of the register.]
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1. Substituted for existing sub-sec. (4) by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
1[Assignments, etc. not to be valid unless in writing and duly executed. An assignment of a patent or of a share in a patent, a mortage, licence or the creation of any other interest in a patent shall not be valid unless the same were in writing and the agreement between the parties concerned is reduced to the form of a document embodying all the terms and conditions governing their rights and obligations and duly executed.]
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1. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) Where any person becomes entitled by assignment, transmission or operation of law to a patent or to a share in a patent or becomes entitled as a mortgagee, licensee or otherwise to any other interest in a patent, he shall apply in writing in the prescribed manner to the Controller for the registration of his title or, as the case may be of notice of his interest in the register.
(2) Without prejudice to the provisions of sub-section (1), an application for the registration of the title of any person becoming entitled by assignment to a patent or a share in a patent or becoming entitled by virtue of a mortgage, licence or other instrument to any other interest in a patent may be made in the prescribed manner by the assignor, mortgagor, licensor or other party to that instrument, as the case may be.
(3) Where an application is made under this section for the registration of the title of any person, the Controller shall, upon proof of title to his satisfaction,—
(a) where that person is entitled to a patent or a share in a patent, register him in the register as proprietor or co-proprietor of the patent, and enter in the register particulars of the instrument or event by which he derives title; or ,
(b) where that person is entitled to any other interest in the patent, enter in the register notice of his interest, with particulars of the instrument, if any, creating it:
PROVIDED that if there is any dispute between the parties whether the assignment, mortgage, licence, transmission, operation of law or any other such transaction has validly vested in such person a title to the patent or any share or interest therein, the Controller may refuse to take any action under clause (a), or, as the case may be, under clause (b), until the rights of the parties have been determined by a competent court.
(4) There shall be supplied to the Controller in the prescribed manner for being filed in the patent office copies of all agreements, licences and other documents affecting the title to any patent of any licence thereunder authenticated in the prescribed manner and also such other documents as may be prescribed relevant to the subject-matter:
PROVIDED that in the case of a licence granted under a patent, the Controller shall, if so requested by the patentee or licensee, take steps for securing that the terms of the licence are not disclosed to any person except under the order of a court.
(5) Except for the purposes of an application under sub-section (1) or of an application to rectify the register, a document in respect of which no entry has been made in the register under sub-section (3) shall not be admitted by the Controller or by any court as evidence of the title of any person to a patent or to a share or interest therein unless the Controller or the court, for reasons to be recorded in writing, otherwise directs.
Subject to the provisions contained in this Act relating to co-ownership of patents and subject also to any rights vested in any other person of which notice is entered in the register, the person or persons registered as grantee or proprietor of patent shall have power to assign, grant licences under, or otherwise deal with the patent and to give effectual receipts for consideration for any such assignment, licence or dealing:
PROVIDED that any equities in respect of the patent may be enforced in like manner as in respect of any other movable property.
Rectification of register by 1[Appellate Board]. (1) The 1[Appellate Board] may, on the application of any person aggrieved—
(a)- by the absence or omission from the register of any entry; or
(b) by any entry made in the register without sufficient cause; or
(c) by any entry wrongly remaining on the register; or
(d) by any error or defect in any entry in the register, make such order for the making, variation or deletion, of any entry therein as it may think fit.
(2) In any proceeding under this section the 1[Appellate Board] may decide any question that may be necessary or expedient to decide in connection with the rectification of the register.
(3) Notice of any application to the 1[Appellate Board] under this section shall be given in the prescribed manner to the Controller who shall be entitled to appear and be heard on the application, and shall appear if so directed by the 2[Board].
(4) Any order of the 1[Appellate Board] under this section rectifying the register shall direct that notice of the rectification shall be served upon the Controller in the prescribed manner who shall upon receipt of such notice rectify the register accordingly.
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1. Substituted for “High Court” by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
2. Substituted for “Court”, ibid.
(1) Subject to the provisions contained in this Act and any rules made thereunder, the register shall at all convenient times be open to inspection by the public; and certified copies, sealed with the seal of the patent office, of any entry in the register shall be given to any person requiring them on payment of the prescribed fee.
(2) The register shall be prima facie evidence of any matters required or authorised by or under this Act to be entered therein.
1[(3) If the record or particulars is kept in computer floppies or diskettes or in any other electronic form, sub-sections (1) and (2) shall be deemed to have been complied with if the public is given access to such computer floppies, diskettes or any other electronic form or printouts of such record of particulars for inspection.]
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1. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
(1) The Controller General of Patents, Designs and Trade Marks appointed under subsection (1) of 1[section 3 of the Trade Marks Act, 1999] shall be the Controller of Patents for the purposes of this Act.
(2) For the purposes of this Act the Central Government may appoint as many examiners and other officers and with such designations as it thinks fit.
(3) Subject to the provisions of this Act, the officers appointed under sub-section (2) shall discharge under the superintendence and directions of the Controller such functions of the Controller under this Act as he may, from time to time, by general or special order in writing, authorise them to discharge.
(4) Without prejudice to the generality of the provisions of sub-section (3), the Controller may, by order in writing and for reasons to be recorded therein withdraw any matter pending before an officer appointed under sub-section (2) and deal with such matter himself either de novo or from the stage it was so withdrawn or transfer the same to another officer appointed under sub-section (2) who may, subject to special directions in the order of transfer, proceed with the matter either de novo or from the stage it was so transferred.
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1. Substituted for “section 4 of the Trade and Merchandise Marks Act, 1958″, by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O.561(E), dt. 20-5-2003.
(1) For the purposes of this Act, there shall be an office which shall be known as the patent office.
1[(2) The Central Government may, by notification in the Official Gazette, specify the name of the Patent Office.]
(3) The head office of the patent office shall be at such place as the Central Government may specify, and for the purpose of facilitating the registration of patents there may be established, at such other places as the Central Government may think fit, branch offices of the patent office.
(4) There shall be a seal of the patent office.
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1. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
All officers and employees of the patent office shall be incapable, during the period for which they hold their appointments, to acquire or take, directly or indirectly, except by inheritance or bequest, any right or interest in any patent issued by that office.
An officer or employee in the patent office shall not, except when required or authorised by this Act or under a direction in writing of the 1[Central Government or Appellate Board] or the Controller or by order of a court—
(a) furnish information on a matter which is being, or has been, dealt with under this Act 2[x x x]; or
(b) prepare to assist in the preparation of a document required or permitted by or under this Act +[x x x] to be lodged in the patent office; or
(c) conduct a search in the records of the patent office.
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1. Substituted for “Central Government” by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561 (E), dt. 20-5-2003.
2. Words “or under the Indian Patents and Designs Act, 1911″ omitted, ibid.
(1) Subject to any rules made in this behalf, the Controller in any proceedings before him under this Act have the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely,—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses of documents;
(e) awarding costs;
(f) reviewing his own decision on application made within the prescribed time and in the prescribed manner;
(g) setting aside an order passed ex parte on application made within the prescribed time and in the prescribed manner;
(h) any other matter which may be prescribed.
(2) Any order for costs awarded by the Controller in exercise of the powers conferred upon him under sub-section (1) shall be executable as a decree of a civil court.
(1) Without prejudice to the provisions contained in sections 57 and 59 as regards amendment of applications for patents or complete specifications 1[or other documents relating thereto] and subject to the provisions of section 44, the Controller may, in accordance with the provisions of this section, correct any clerical error in any patent or in any specification or other document filed in pursuance of such application or in any application for a patent or any clerical error in any matter which is entered in the register.
(2) A correction may be made in pursuance of this section either upon a request in writing made by any person interested and accompanied by the prescribed fee, or without such a request.
(3) Where” the Controller proposes to make any such correction as aforesaid otherwise than in pursuance of a request made under this section, he shall give notice of the proposal to the patentee or the applicant for the patent, as the case may be, and to any other person who appears to him to be concerned, and shall give them an opportunity to be heard before making the correction.
(4) Where a request is made under this section for the correction of any error in a patent or application for a patent or any document filed in pursuance of such an application, and it appears to the Controller that the correction would materially alter the meaning or scope of the document to which the request relates and ought not to be made without notice to persons affected thereby, he shall require notice of the nature of the proposed correction to be 2[published] in the prescribed manner.
(5) Within the prescribed time after any such 3[publication] as aforesaid any person interested may give notice to the Controller of opposition to the request, and, where such notice of opposition is given, the Controller shall give notice thereof to the person by whom the request was made, and shall give to him and to the opponent an opportunity to be heard before he decides the case.
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1. Inserted, ibid.
2. Substituted for “advertised” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. Substituted for “advertisement” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
Subject to any rules made in this behalf, in any proceeding under this Act before the Controller, evidence shall be given by affidavit in the absence of directions by the Controller to the contrary, but in any case in which the Controller thinks it right so to do, he may take oral evidence in lieu of, or in addition to, evidence by affidavit, or may allow any party to be crossexamined on the contents of his affidavit.
Without prejudice to any provision contained in this Act requiring the Controller to hear any party to the proceedings thereunder or to give any such party an opportunity to be heard, the Controller shall give to any applicant for a patent, or for amendment of a specification (if within the prescribed time the applicant so requires) an opportunity to be heard before exercising adversely to the applicant any discretion vested in the Controller by or under this Act:
1[PROVIDED that the party desiring a hearing makes the request for such hearing to the Controller at least ten days in advance of the expiry of the time-limit specified in respect of the proceeding.]
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1. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.0.561 (E), dt. 20-5-2003.
Where under the provisions of this Act or the rules made thereunder the Controller may extend the time for doing any act, nothing in this Act shall be deemed to require him to give notice to or hear the party interested in opposing the extension, nor shall any appeal lie from any order of the Controller granting such extension.
1[CHAPTER XVI
WORKING OF PATENTS, COMPULSORY LICENCES AND REVOCATION
In this Chapter, unless the context otherwise requires,—
(a) “patented article” includes any article made by a patented process; and
(b) “patentee” includes an exclusive licensee.
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1. As amended by Section 39 of “The Patents (Amendment) Act, 2002″. (No. 38 of 2002).
Without prejudice to the other provisions contained in this Act, in exercising the powers conferred by this Chapter, regard shall be had to the following general considerations, namely,—
(a) that patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale and to the fullest extent that is reasonably practicable without undue delay;
(b) that they are not granted merely to enable patentees to enjoy a monopoly for the importation of the patented article;
(c) that the protection and enforcement of patent rights contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations;
(d) that patents granted do not impede protection of public health and nutrition and should act as instrument to promote public interest specially in sectors of vital importance for socio-economic and technological development of India;
(e) that patents granted do not in any way prohibit Central Government in taking measures to protect public health;
(f) that the patent right is not abused by the patentee or person deriving title or interest on patent from the patentee, and the patentee or a person deriving title or interest on patent from the patentee does not resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology; and
(g) that patents are granted to make the benefit of the patented invention available at reasonably affordable prices to the public.
(1) At any time after the expiration of three years from the date of the 1[grant] of a patent, any person interested may make an application to the Controller for grant of compulsory licence on patent on any of the following grounds, namely:—
(a) that the reasonable requirements of the public with respect to the patented invention have not been satisfied, or
(b) that the patented invention is not available to the public at a reasonably affordable price, or
(c) that the patented invention is not worked in the territory of India.
(2) An application under this section may be made by any person notwithstanding that he is already the holder of a licence under the patent and no person shall be estopped from alleging that the reasonable requirements of the public with respect to the patended invention are not satisfied or that the patented invention is not worked in the territory of India or that the patented invention is not available to the public at a reasonably affordable price by reason of any admission made by him, whether in such a licence or otherwise or by reason of his having accepted such a licence.
(3) Every application under sub-section (1) shall contain a statement setting out the nature of the applicant’s interest together with such particulars as may be prescribed and the facts upon which the application is based.
(4) The Controller, if satisfied that the reasonable requirements of the public with respect to the patented invention have not been satisfied or that the patented invention is not worked in the territory of India or that the patented invention is not available to the public at a reasonably price, may grant a licence upon such terms as he may deem fit.
(5) Where the Controller directs the patentee to grant a licence he may, as incidental thereto, exercise the powers set out in section 88.
(6) In considering the application filed under this section, the Controller shall take into account,—
(i) the nature of the invention, the time which has elapsed since the sealing of the patent and the measures already taken by the patentee or any licensee to make full use of the invention;
(jj) the ability of the applicant to work the invention to the public advantage;
(iii) the capacity of the applicant to undertake the risk in providing capital and working the invention, if the application were granted;
(iv) as to whether the applicant has made efforts to obtain a licence from the patentee on reasonable terms and conditions and such efforts have not been successful within a reasonable period as the Controller may deem fit: PROVIDED that this clause shall not be applicable in case of national emergency or other circumstances of extreme urgency or in case of public non-commercial use or on establishment of a ground of anti-competitive practices adopted by the patentee,
but shall not be required to take into account matters subsequent to the making of the application.
2[Explanation : For the purposes of clause (iv), “reasonable period” shall be construed as a period not ordinarily exceeding a period of six months.]
(7) For the purposes of this Chapter, the reasonable requirements of the public shall be deemed not to have been satisfied—
(a) if, by reason of the refusal of the patentee to grant a licence or licences on reasonable terms,—
(i) an existing trade or industry or the development thereof or the establishment of any new trade or industry in India or the trade or industry in India or the trade or industry of any person or class of persons trading or manufacturing in India is prejudiced; or
(ii) the demand for the patented article has not been met to an adequate extent or on reasonable terms; or
(iii) a market for export of the patented article manufactured in India is not being supplied or developed; or
(iv) the establishment or development of commercial activities in India is prejudiced; or
(b) if, by reason of conditions imposed by the patentee upon the grant of licences under the patent or upon the purchase, hire or use of the patented article or process, the manufacture, use or sale of materials not protected by the patent, or the establishment or development of any trade or industry in India, is prejudiced; or
(c) if the patentee imposes a condition upon the grant of licences under the patent to provide exclusive grant back, prevention to challenges to the validity of patent or coercive package licensing; or
(d) if the patented invention is not being worked in the territory of India on a commercial scale to an adequate extent or is not being so worked to the fullest extent that is reasonably practicable; or
(e) if the working of the patented invention in the territory of India on a commercial scale is being prevented or hindered by the importation from abroad of the patented article by—
(i) the patentee or persons claiming under him; or
(ii) persons directly or indirectly purchasing from him; or
(iii) other persons against whom the patentee is not taking or has not taken proceedingsfor infringement.
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1. Substituted for “sealing” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Inserted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) Where, in respect of a patent, a compulsory licence has been granted, the Central Government or any person interested may, after the expiration of two years from the date of the order granting the first compulsory licence, apply to the Controller for an order revoking the patent on the ground that the patented invention has not been worked in the territory of India or that reasonable requirements of the public with respect to the patented invention have not been satisfied or that the patented invention is not available to the public at a reasonably affordable price.
(2) Every application under sub-section (1) shall contain such particulars as may be prescribed, the facts upon which the application is based, and, in the case of an application other than by the Central Government, shall also set out the nature of the applicant’s interest.
(3) The Controller, if satisfied that the reasonable requirements of the public with respect to the patented invention have not been satisfied or that patented invention has not been worked in the territory of India or that the patented invention is not available to the public at a reasonably affordable price, may make an order revoking the patent.
(4) Every application under sub-section (1) shall ordinarily be decided within one year of its being presented to the Controller.
(1) Where an application under section 84 or section 85, as the case may be, is made on the grounds that the patented invention has not been worked in the territory of India or on the ground mentioned in clause (d) of sub-section (7) of section 84 and the Controller is satisfied that the time which has elapsed since the sealing of the patent has for any reason been insufficient to enable the invention to be worked on a commercial scale to an adequate extent or to enable the invention to be so worked to the fullest extent that is reasonably practicable, he may, by order, adjourn the further hearing of the application for such period not exceeding twelve months in the aggregate as appears to him to be sufficient for the invention to be so worked:
PROVIDED that in any case where the patentee establishes that the reason why a patented invention could not be worked as aforesaid before the date of the application was due to any State or Central Act or any rule or regulation made thereunder or any order of the Government imposed otherwise than by way of a condition for the working of the invention in the territory of India or for the disposal of the patented articles or of the articles made by the process or by the use of the patented plant, machinery, or apparatus, then, the period of adjournment ordered under this sub-section shall be reckoned from the date on which the period during which the working of the invention was prevented by such Act, rule or regulation or order of Government as computed from the date of the application, expires.
(2) No adjournment under sub-section (1) shall be ordered unless the Controller is satisfied that the patentee has taken with promptitude adequate or reasonable steps to start the working of the invention in the territory of India on a commercial scale and to an adequate extent.
(1) Where the Controller is satisfied, upon consideration of an application under section 84, or section 85, that a prima facie case has been made out for the making of an order, he shall direct the applicant to serve copies of the application upon the patentee and any other person appearing from the register to be interested in the patent in respect of which the application is made, and 1[shall publish the application in the Official journal].
(2) The patentee or any other person desiring to oppose the application may, within such time as may be prescribed or within such further time as the Controller may on application (made either before or after the expiration of the prescribed time) allow, give to the Controller notice of opposition.
(3) Any such notice of opposition shall contain a statement setting out the grounds on which the application is opposed.
(4) Where any such notice of opposition is duly given, the Controller shall notify the applicant, and shall give to the applicant and the opponent an opportunity to be heard before deciding the case.
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1. Substituted for “shall advertise the application in the Official Gazette” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) Where the Controller is satisfied on an application made under section 84 that the manufacture, use or sale of materials not protected by the patent is prejudiced by reason of conditions imposed by the patentee upon the grant of licences under the patent, or upon the purchase, hire or use of the patented article or process, he may, subject to the provisions of that section, order the grant of licences under the patent to such customers of the applicant as he thinks fit as well as to the applicant.
(2) Where an application under section 84 is made by a person being the holder of a licence under the patent, the Controller may, if he makes an order for the grant of a licence to the applicant, order the existing licence to be cancelled, or may, if the thinks fit, instead of making an order for the grant of a licence to the applicant, order the existing licence to be amended.
(3) Where two or more patents are held by the same patentee and an applicant for a compulsory licence establishes that the reasonable requirements of the public have not been satisfied with respect to some only of the said patents, then, if the Controller is satisfied that the applicant cannot efficiently or satisfactorily work the licence granted to him under those patents without infringing the other patents held by the patentee and if those patents involve important technical advancement or considerable economic significance in relation to the other patents, he may, by order, direct the grant of a licence in respect of the other patents also to enable the licensee to work the patent or patents in regard to which a licence is granted under section 84.
(4) Where the terms and conditions of a licence have been settled by the Controller, the licensee may, at any time after he has worked the invention on a commercial scale for a period of not less than twelve months, make an application to the Controller for the revision of the terms and conditions on the ground that the terms and conditions settled have proved to be more onerous than originally expected and that in consequence thereof the licensee is unable to work the invention except at a loss:
PROVIDED that no such application shall be entertained a second time.
The powers of the Controller upon an application made under section 84 shall be exercised with a view to securing the following general purposes, that is to say,—
(a) that patented inventions are worked on a commercial scale in the territory of India without undue delay and to the fullest extent that is reasonably practicable;
(b) that the interests of any person for the time being working or developing an invention in the territory of India under the protection of a patent are not unfairly prejudiced.
(1) In settling the terms and conditions of a licence under section 84, the Controller shall endeavour to secure—
(i) that the royalty and other remuneration, if any, reserved to the patentee or other person beneficially entitled to the patent, is reasonable, having regard to the nature of the invention, the expenditure incurred by the patentee in making the invention or in developing it and obtaining a patent and keeping it in force and other relevant factors;
(ii) that the patented invention is worked to the fullest extent by the person to whom the licence is granted and with reasonable profit to him;
(iii) that the patented articles are made available to the public at reasonably affordable prices;
(iv) that the licence granted is a non-exclusive licence;
(v) that the right of the licensee is non-assignable;
(vi) that the licence is for the balance term of the patent unless a shorter term is consistent with public interest;
1[(vii) that the licence is granted with a predominant purpose of supply in the Indian market and that the licensee may also export the patented product, if need be in accordance with the provisions of sub-clause (iii) of clause (a) of sub-section (7) of section 84;
(viii) that in the case of semi-conductor technology, the licence granted is to work the invention for public non-commercial use;
(ix) that in case the licence is granted to remedy a practice determined after judicial or administrative process to be anti-competitive, the licensee shall be permitted to export the patented product, if need be.]
(2) No licence granted by the Controller shall authorise the licensee to import the patented article or an article or substance made by a patented process from abroad where such importation would, but for such authorisation, constitute an infringement of the rights of the patentee.
(3) Notwithstanding anything contained in sub-section (2), the Central Government may, if in its opinion it is necessary so to do, in the public interest, direct the Controller at any time to authorise any licensee in respect of a patent to import the patented article or an article or substance made by a patented process from abroad (subject to such conditions as it considers necessary to impose relating among other matters to the royalty and other remuneration, if any, payable to the patentee, the quantum of import, the sale price of the imported article and the period of importation), and thereupon the Controller shall give effect to the directions.
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1. Substituted for the existing clause (vii) by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) Notwithstanding anything contained in the other provisions of this Chapter, at any time after the sealing of a patent, any person who has the right to work any other patented invention either as patentee or as licensee thereof, exclusive or otherwise, may apply to the Controller for the grant of a licence of the first mentioned patent on the ground that he is prevented or hindered without such licence from working the other invention efficiently or to the best advantage possible.
(2) No order under sub-section (1) shall be made unless the Controller is satisfied—
(i) that the applicant is able and willing to grant, or procure the grant to the ; patentee and his licensees if they so desire, of a licence in respect of the other invention on reasonable terms; and
(ii) that the other invention has made a substantial contribution to the establishment or development of commercial or industrial activities in the territory of India.
(3) When the Controller is satisfied that the conditions mentioned in sub-section (1) have been established by the applicant, he may make an order on such terms as he thinks fit granting a licence under the first mentioned patent and a similar order under the other patent if so requested by the proprietor of the first mentioned patent or his licensee:
PROVIDED that the licence granted by the Controller shall be non-assignable except with the assignment of the respective patents.
(4) The provisions of sections 87, 88, 89 and 90 shall apply to licences granted under this section as they apply to licences granted under section 84.
(1) If the Central Government is satisfied, in respect of any patent in force in circumstances of national emergency or in circumstances of extreme urgency or in case of public non-commercial use, that it is necessary that compulsory licenses should be granted at any time after the sealing thereof to work the invention, it may make a declaration to that effect, by notification in the Official Gazette, and thereupon the following provisions shall have effect, that is to say—
(i) the Controller shall, on application made at any time after the notification by any person interested, grant to the applicant a licence under the patent on such terms and conditions as he thinks fit;
(ii) in settling the terms and conditions of a licence granted under this section, the Controller shall endeavour to secure that the articles manufactured under the patent shall be available to the public at the lowest prices consistent with the patentees deriving a reasonable advantage from their patent rights.
(2) The provisions of sees. 83,87,88,89 and 90 shall apply in relation to the grant of licences under this section as they apply in relation to the grant of licences under sec. 84.
(3) Notwithstanding anything contained in sub-section (2), where the Controller is satisfied on consideration of the application referred to in clause (i) of sub-section (1) that it is necessary in—
(i) a circumstance of national emergency; or
(ii) a circumstance of extreme urgency; or
(iii) a case of public non-commercial use,
which may arise or is required, as the case may be, including public health crises, relating to Acquired Immuno Deficiency Syndrome, human immunodeficiencyvirus, tuberculosis, malaria or other epidemics, he shall not apply any procedure specified in section 87 in relation to that application for grant of licence under this section:
PROVIDED that the Controller shall, as soon as may be practicable, inform the patentee of the patent relating to the application for such non-application of section 87.
1[Compulsory licence for export of patented pharmaceutical products in certain exceptional circumstances. (1) Compulsory licence shall be available for manufacture and export of patented pharmaceutical product to any country having insufficient or no manufacturing capacity in the pharmaceutical sector for the concerned product to address public health problems, provided compulsory licence has been granted by such country or such country has, by notification or otherwise, allowed importation of the patented pharmaceutical products from India.
(2) The Controller shall, on receipt of an application in the prescribed manner, grant a compulsory licence solely for manufacture and export of the concerned pharmaceutical product to such country under such terms and conditions as may be specified and published by him.
(3) The provisions of sub-sections (1) and (2) shall be without prejudice to the extent to which pharmaceutical products produced under a compulsory licence can be exported under any other provision of this Act.
Explanation: For the purposes of this section, ‘pharmaceutical products’ means any patented product, or product manufactured through a patented process, of the pharmaceutical sector needed to address public health problems and shall be inclusive of ingredients necessary for their manufacture and diagnostic kits required for their use.]
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1. Inserted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
Any order for the grant of a licence under this Chapter shall operate as if it were a deed granting a licence executed by the patentee and all other necessary parties embodying the terms and conditions, if any, settled by the Controller.
(1) On an application made by the patentee or any other person deriving title or interest in the patent, a compulsory licence granted under section 84 may be terminated by the Controller, if and when the circumstances that gave rise to the grant thereof no longer exist and such circumstances are unlikely to recur:
PROVIDED that the holder of the compulsory licence shall have the right to object to such termination.
(2) While considering an application under sub-section (1), the Controller shall take into account that the interest of the person who had previously been granted the licence is not unduly prejudiced.]
Omitted by Section 39 of “The Patents (Amendment) Act, 2002”.
(No. 38 of 2002).
Omitted by Section 39 of “The Patents (Amendment) Act, 2002”.
(No. 38 of 2002).
Omitted by Section 39 of “The Patents (Amendment) Act, 2002”.
(No. 38 of 2002).
Omitted by Section 39 of “The Patents (Amendment) Act, 2002”.
(No. 38 of 2002).
(1) For the purposes of this chapter, an invention is said to be used for the purposes of government if it is made, used, exercised or vended for the purposes of the Central Government, a State Government or a government undertaking.
1[(2) xxx]
(3) Nothing contained in this Chapter shall apply in respect of any such importation making or using of any machine, apparatus, or other article or of any such using of any process or of any such importation, using or distribution of any medicine or drug, as may be made by virtue of one or more of the conditions specified in section 47.
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1. Omitted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
(1) Notwithstanding anything contained in this Act, at any time after an application for a patent has been filed at the patent office or a patent has been granted, the Central Government and any person authorised in writing by it may use the invention for the purposes of government in accordance with the provisions of this chapter.
(2) Where an invention has, before the priority date of the relevant claim of the complete specification, been duly recorded in a document, or tested or tried, by or on behalf of the government or a government undertaking, otherwise than in consequence of the communication of the invention directly or indirectly, by the patentee or by a person from whom he derives title, any use of the invention by the Central Government or any person authorised in writing by it for the purposes of government may be made free of any royalty or other remuneration to the patentee.
(3) If and so far as the invention has not been so recorded or tried or tested as aforesaid, any use of the invention made by the Central Government of any person authorised by it under sub-section (1), at any time after 1[grant of the patent] or in consequence of any such communication as aforesaid, shall be made upon terms as may be agreed upon either before or after the use, between the Central Government or any person authorised under sub-section (1) and the patentee, or, as may in default of agreement be determined by the High Court on a reference under section 103:
2[PROVIDED that in case of any such use of any patent, the patentee shall be paid not more than adequate remuneration in the circumstances of each case, taking into account the economic value of the use of the patent.]
(4) The authorisation by the Central Government in respect of an invention may be given under this section, either before or after the patent is granted and either before or after the acts in respect of which such authorisation is given or done, and may be given to any person, whether or not he is authorised directly or indirectly by the applicant or the patentee to make, use, exercise or vend the invention or import the machine, apparatus or other article or medicine or drug covered by such patent.
(5) Where an invention has been used by or with the authority of the Central Government for the purposes of government under this section, then 3[except in case of national emergency or other circumstances of extreme urgency or for non-commercial use], the government shall notify the patentee as soon as practicable of the fact and furnish him with such information as to the extent of the use of the invention as he may, from time to time, reasonably require; and where the invention has been for the purposes of a government undertaking, the Central Government may call for such information as may be necessary for this purpose from such undertaking.
(6) The right to make, use, exercise and vend an invention for the purposes of government under sub-section (1) shall include the 4[right to sell on non-commercial basis, the goods] which have been made in exercise of that right, and a purchaser of goods so sold, and a person claiming through him, shall have the power to deal with the goods as if the Central Government or the person authorised under sub-section (1) were the patentee of the invention.
(7) Where in respect of a patent which has been the subject of an authorisation under this section, there is an exclusive licensee as is referred to in sub-section (3) of section (3) of section 101, or where such patent has been assigned to the patentee in consideration of royalties or other benefits determined by reference to the use of the invention (including payments by way of minimum royalty), the notice directed to be given under sub-section (5) shall also be given to such exclusive licensee or assignor, as the case may be, and the reference to the patentee in sub-section (3) shall be deemed to include a reference to such assignor or exclusive licensee.
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1. Substituted for “the acceptance of the complete specification in respect of the patent” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
3. Substituted for “unless it appears to the Govt. that it would be contrary to the public interest so to do” by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561 (E), dt. 20-5-2003.
4. Substituted for “right to sell the goods”, ibid.
(1) In relation to any use of a patented invention, or an invention in respect of which an application for a patent is pending, made for the purposes of government
(a) by the Central Government or any person authorised by the Central Government under section 100; or
(b) by the patentee or applicant for the patent to the order made by the Central Government,
the provisions of any licence, assignment or agreement pranted or made, 1[xxx] between the patentee or applicant for the patent (or any person who derives title from him or from whom he derives title) and any person other than the Central Government shall be of no effect so far as those provisions—
(i) restrict or regulate the use for the purposes of government of the invention, or of any model, document or information relating thereto, or
(ii) provide for the making of payments in respect of any use of the invention or of the model, document or information relating thereto for the purposes of government 2[x x x], and the reproduction or publication of any model or document in connection with the said use for the purposes of government shall not been deemed to be an infringement of any copyright subsisting in the model or document.
(2) Where the patent, or the right to apply for or obtain the patent, has been assigned to the patentee in consideration of royalties or other benefits determined by reference to the use of the invention 3[x x x] then, in relation to any use of the invention made for the purposes of government by the patentee to the order of the Central Government, sub-section (3) of section 100 shall have effect as if that use were made by virtue of an authority given under that section, and any use of the invention for the purposes of government by virtue of sub-section (3) of that section shall have effect as if the reference to the patentee included a reference to the assignor of the patent, and any sum payable by virtue of that sub-section shall be divided between the patentee and the assignor in such proportion as may be agreed upon between them or as may in default of agreement be determined by the High Court on a reference under section 103.
(3) Where by virtue of sub-section (3) of section 100, payments are required to be made by the Central Government or persons authorised under sub-section (1) of that section in respect of the use of an invention for the purposes of government, and where in respect of such patent there is an exclusive licensee authorised under his licence to use the invention for the purposes of government, such sum shall be shared by the patentee and such licensee in such proportions, if any, as may be agreed upon between them or as may in default of agreement be determined by the High Court on a reference under section 103 to be just, having regard to any expenditure incurred by the licensee—
(a) in developing the said invention; or
(b) in making payments to the patentees other than royalties or other benefits determined by reference to the use of the invention 1[x x x] in consideration of the licence.
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1. Words “whether before or after the commencement of this Act” omitted, ibid.
2. Bracket and words “(including payments by way of minimum royalty)” omitted, ibid.
3. Brackets and words “(including payments by way of minimum royalty)” omitted, by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
(1) The Central Government may, if satisfied that it is necessary that an invention which is the subject of an application for a patent or a patent should be acquired from the applicant or the patentee for a public purpose, publish a notification to that effect in the Official Gazette, and thereupon the invention or patent and all rights in respect of the invention or patent shall, by force of this section, stand transferred to and be vested in the Central Government.
(2) Notice of the acquisition shall be given to the applicant, and, where a patent has been granted, to the patentee and other persons, if any, appearing in the register as having an interest in the patent.
(3) The Central Government shall pay to the applicant, or as the case may be, the patentee and other persons appearing on the register as having an interest in the patent such other compensation as may be agreed upon between the Central Government and the applicant or the patentee and other persons; or, as may, in default of agreement, be determined by the High Court on a reference under section 103 to be just having regard to the expenditure incurred in connection with the invention and, in the case of a patent, the term thereof, the period during which and the manner in which it has already been worked (including the profits made during such period by the patentee or by his licensee whether exclusive or otherwise) and other relevant factors.
(1) Any dispute as to the exercise by the Central Government or a person authorised by it of the powers conferred by section 100, or as to terms for the use of an invention for the purposes of government thereunder or as to the right of any person to receive any part of a payment made in pursuance of sub-section (3) of that section or as to the amount of compensation payable for the acquisition of an invention or a patent under section 102, may be referred to the High Court by either party to the dispute in such manner as may be prescribed by the rules of the High Court.
(2) In any proceedings under this section to which the Central Government is a party, the Central Government may—
(a) if the patentee is a party to the proceedings, petition by way of counter-claim for revocation of the patent on any ground upon which a patent may be revoked under section 64; and
(b) whether a patentee is or is not a party to the proceedings, put in issue the validity of the patent without petitioning for its revocation.
(3) If in such proceedings as aforesaid any question arises whether an invention has been recorded, tested or tried as is mentioned in section 100, and the disclosure of any document regarding the invention, or of any evidence of the test or trial thereof, would, in the opinion of the Central Government, be prejudicial to the public interest, the disclosure may be made confidentially to the advocate of the other party or to an independent expert mutually agreed upon.
(4) In determining under this section any dispute between the Central Government and any person as to terms for the use of an invention for the purposes of government, the High Court shall have regard to any benefit or compensation which that person or any person from whom he derives title, may have received, or may be entitled to receive, directly or indirectly in respect of the use of the invention in question for the purposes of government.
(5) In any proceedings under this section, the High Court may at any time order the whole proceedings or any question or issue of fact arising therein to be referred to an official referee, commissioner or an arbitrator on such terms as the High Court may direct, and references to the High Court in the foregoing provisions of this section shall be construed accordingly.
(6) Where the invention claimed in a patent was made by a person who at time it was made was in the service of the Central Government or of a State Government or was an employee of a government undertaking and the subject-matter of the invention is certified by the relevant government or the principal officer of the government undertaking to be connected with the work done in the course of the normal duties of the government servant or employee of the government undertaking, then, notwithstanding anything contained in this section, any dispute of the nature referred to in sub-section (1) relating to the invention shall be disposed of by the Central Government conformably to the provisions of this section so far as may be applicable, but before doing so the Central Government shall give an opportunity to the patentee and such other parties as it considers have an interest in the matter to be heard.
No suit for a declaration under section 105 or for any relief under section 106 or for infringement of a patent shall be instituted in any court inferior to a district court having jurisdiction to try the suit:
PROVIDED that where a counter-claim for revocation of the patent is made by the defendant, the suit, along with the counter-claim, shall be transferred to the High Court for decision.
S
There is a distinction maintained as between the defence raised to a suit for infringement of a patent (vide s. 107) on the one hand and the revocation sought of a patent on the other (vide s. 64). The grounds may be the same, but still there is no inconsistency on account of the suit being defended as liable to dismissal in a particular case and a case where the defendant seeks also that the patent asserted by the plaintiff be revoked. It is only when there is a counter claim seeking revocation of the patent that the jurisdiction of the District Court is ousted. The proviso to s. 104 being in the nature of an exception to the general rule, it has to be strictly construed. There is no express claim on the part of the defendant for revocation of the patent whereof infringement is alleged by the plaintiff. That the defendant pleads that the patent set up by the plaintiff is invalid amounts only to the defendant raising a ground for the relief sought by the plaintiff being declined; it does not follow necessarily that the defendant also seeks by way of a counterclaim that the patent be revoked. The defendant has not asserted in the pleadings anywhere that they are the patentee or that they are entitled to be registered as such. The grounds raised are cumulatively and also individually by way of defence to the plaintiff’s action.—Fabcon Corporation v. Industrial Engineering Corporation AIR 1987 All 338
1[Burden of proof in case of suits concerning infringement. (1) In any suit for infringement of a patent, where the subject matter of patent is a process for obtaining a product, the court may direct the defendant to prove that the process used by him to obtain the product, identical to the product of the patented process, is different from the patented process if,—
(a) the subject matter of the patent is a process for obtaining a new product; or
(b) there is a substantial likelihood that the identical product is made by the process, and the patentee or a person deriving title or interest in the patent from him, has been unable through reasonable efforts to determine the process actually used:
PROVIDED that the patentee or a person deriving title or interest in the patent from him, first proves that the product is identical to the product directly obtained by the patented process.
(2) In considering whether a party has discharged the burden imposed upon him by subsection (1), the court shall not require him to disclose any manufacturing or commercial secrets, if it appears to the court that it would be unreasonable to do so.]
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1. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O.561(E), dt. 20-5-2003.
(1) Notwithstanding anything contained in section 34 of the Specific Relief Act, 1963, (47 of 1963), any person may institute a suit for a declaration that the use by him of any process, or the making, use or sale of any article by him does not, or would not, constitute an infringement of a claim of a patent against the patentee or the holder of an exclusive licence under the patent, notwithstanding that no assertion to the contrary has been made by the patentee or the licensee, if it is shown—
(a) that the plaintiff has applied in writing to the patentee or exclusive licensee for a written acknowledgment to the effect of the declaration claimed and has furnished him with full particulars in writing of the process or article in question; and
(b) that the patentee or licensee has refused or neglected to give such an acknowledgment.
(2) The costs of all parties in a suit for a declaration brought by virtue of this section shall, unless for special reasons the court thinks fit to order otherwise, be paid by the plaintiff.
(3) The validity of a claim of the specification of a patent shall not be called in question in a suit for declaration brought by virtue of this section, and accordingly the making or refusal of such a declaration in the case of a patent shall not be deemed to imply that the patent is valid or invalid.
(4) A suit for a declaration may be brought by virtue of this section at any time 1[after the publication of grant of a patent], and references in this section to the patentee shall be construed accordingly.
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1. Substituted for “after the date of advertisement of acceptance of the complete specification of a patent” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) Where any person (whether entitled to or interested in a patent or an application for a patent or not) threatens any other person by circulars or advertisements or by communications, oral or in writing addressed to that or any other person, with proceedings for infringement of a patent, any person aggrieved thereby may bring a suit against him praying for the following reliefs, that is to say—
(a) a declaration to the effect that the threats are unjustifiable;
(b) an injunction against the continuance of the threats; and
(c) such damages, if any, as he has sustained thereby.
(2) Unless in such suit the defendant proves that the acts in respect of which the proceedings were threatened constitute or, if done, would constitute, an infringement of a patent or of rights arising from the publication of a complete specification in respect of a claim of the specification not shown by the plaintiff to be invalid, the court may grant to the plaintiff all or any of the reliefs prayed for.
Explanation: A mere notification of the existence of a patent does not constitute a threat of proceeding within the meaning of this section.
(1) In any suit for infringement of a patent, every ground on which it may be revoked under section 64 shall be available as a ground for-defence.
(2) In any suit for infringement of a patent by the making, using or importation of any machine, apparatus or other article or by the using of any process or by the importation, use or distribution of any medicine or drug, it shall be a ground for defence that such making, using, importation or distribution is in accordance with any one or more of the conditions specified in section 47.
S
There is a distinction maintained as between the defence raised to a suit for infringement of a patent (vide s. 107) on the one hand and the revocation sought of a patent on the other (vide s. 64). The grounds may be the same, but still there is no inconsistency on account of the suit being defended as liable to dismissal in a particular case and a case where the defendant seeks also that the patent asserted by the plaintiff be revoked. It is only when there is a counter claim seeking revocation of the patent that the jurisdiction of the District Court is ousted. The proviso to s. 104 being in the nature of an exception to the general rule, it has to be strictly construed. There is no express claim on the part of the defendant for revocation of the patent whereof infringement is alleged by the plaintiff. That the defendant pleads that the patent set up by the plaintiff is invalid amounts only to the defendant raising a ground for the relief sought by the plaintiff being declined; it does not follow necessarily that the defendant also seeks by way of a counterclaim that the patent be revoked. The defendant has not asserted in the pleadings anywhere that they are the patentee or that they are entitled to be registered as such. The grounds raised are cumulatively and also individually by way of defence to the plaintiff’s action.—Fabcon Corporation v. Industrial Engineering Corporation AIR 1987 All 338
Where the defendant neither claims to be the owner of the patent nor has it filed any petition or counter-claim, it cannot plead that the plaintiff has no locus standi to institute proceeding for infringement of patent, merely raising the plea that the plaintiff’s registration is improper.—Schnie-der Electric Industries SA v. Telemecanique and Controls (I) Ltd. (IA No. 8522) 2000 (20) PTC 620 (Del).
1[Certain acts not to be considered as infringement. For the purposes of this Act,—
(a) any art of making, constructing, 2[using, selling or importing] a patented invention solely for uses reasonably relating to the development and submission of information required under any law for the time being in force, in India, or in a country other than India, that regulates the manufacture, construction, 3[use, sale or import] of any product;
(b) importation of patented products by any person from a person 4 [who is duly authorised under the law to produce and sell or distribute the product], shall not be considered as an infringement of patent rights.]
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1. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
2. Substituted for “using or selling” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. Substituted for “use or sale” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
4. Substituted for “who is duly authorised by the patentee to sell or distribute the product” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
1[(1)] The reliefs which a court may grant in any suit for infringement include an injunction (subject to such terms, if any, as the court thinks fit) and, at the option of the plaintiff either damages or an account of profits.]
2[(2) The court may also order that the goods which are found to be infringing and materials and implement, the predominant use of which is in the creation of infringing goods shall be seized, forfeited or destroyed, as the court deems fit under the circumstances of the case without payment of any compensation.]
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1. Existing section 108 renumbered as sub-section (1) thereof by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
2. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
(1) The holder of an exclusive licence shall have the like right as the patentee to institute a suit in respect of any infringement of the patent committed after the date of the licence, and in awarding damages or an account of profits or granting any other relief in any such suit the court shall take into consideration any loss suffered or likely to be suffered by the exclusive licensee as such or, as the case may be, the profits earned by means of the infringement so far as it constitutes an infringement of the rights of the exclusive licensee as such.
(2) In any suit for infringement of a patent by the holder of an exclusive licence under sub-section (1), the patentee shall, unless he has joined as a plaintiff in the suit, be added as a defendant, but a patentee so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.
Any person to whom a licence has been granted under section 84 shall be entitled to call upon the patentee to take proceedings to prevent any infringement of the patent, and, if the patentee refuses or neglects to do so within two months after being so called upon, the licensee may institute proceedings for the infringement in his own name as though he were the patentee, making the patentee a defendant; but a patentee so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.
(1) In a suit for infringement of a patent, damages or an account of profits shall not be granted against the defendant who proves that at the date of the infringement he was not aware and had no reasonable grounds for believing that the patent existed.
Explanation : A person shall not be deemed to have been aware or to have had reasonable grounds for believing that a patent exists by reason only of the application to an article of the word “patent”, “patented” or any word or words expressing or implying that a patent has been obtained for the article, unless the number of the patent accompanies the word or words in question.
(2) In any suit for infringement of a patent the court may, if it thinks fit, refuse to grant any damages or an account of profits in respect of any infringement committed after a failure to pay any renewal fee within the prescribed period and before any extension of that period.
(3) Where an amendment of a specification by way of disclaimer, correction or explanation has been allowed under this Act after the publication of the specification, no damages or account of profits shall be granted in any proceeding in respect of the use of the invention before the date of the decision allowing the amendment, unless the court is satisfied that the specification as originally published was framed in good faith and with reasonable skill and knowledge.
(4) Nothing in this section shall affect the power of the court to grant an injunction in any suit for infringement of a patent.
1[x x x]
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1. Omitted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
1[(1) If in any proceedings before the Appellate Board or a High Court for the revocation of a patent under section 64 and section 104, as the case may be, the validity of any claim of a specification is contested and that claim is found by the Appellate Board or the High Court to be valid, the Appellate Board or the High Court may certify that the validity of that claim was contested in those proceedings and was upheld.]
(2) Where any such certificate has been granted, then, if any subsequent suit before a court for infringement of that claim of the patent or in any subsequent proceeding for revocation of the patent in so far as it relates to that claim, the patentee or other person relying on the validity of the claim obtains a final order or judgment in his favour, he shall be entitled to an order for the payment of his full costs, charges and expenses of and incidental to any such suit or proceeding properly incurred so far as they concern the claim in respect of which the certificate was granted, unless the court trying the suit or proceeding otherwise directs:
PROVIDED that the costs as specified in this sub-section shall not be ordered when the party disputing the validity of the claim satisfies the court that he was not aware of the grant of the certificate when he raised the dispute and withdrew forthwith such defence when he became aware of such a certificate.
1[(3) Nothing contained in this section shall be construed as authorising the courts or the Appellate Board hearing appeals from decrees or orders in suits for infringement or petitions for revocation, as the case may be, to pass orders for costs on the scale referred to therein.]
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1. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. the date to be notified.
(1) If in proceedings for infringement of a patent it is found that any claim of the specification, being a claim in respect of which infringement is alleged, is valid but that any other claim is invalid, the court may grant relief in respect of any valid claim which is infringed:
PROVIDED that the court shall not grant relief except by way of injunction save in the circumstances mentioned in sub-section (2).
(2) Where the plaintiff proves that the invalid claim was framed in good faith and with reasonable skill and knowledge, the court shall grant relief in respect of any valid claim which is infringed subject to the discretion of the court as to costs and as to the date from which damages or an account of profits should be reckoned, and in exercising such discretion the court may take into consideration the conduct of the parties in inserting such invalid claim in the specification or permitting them to remain there.
(1) In any suit for infringement or in any proceeding before a court under this Act, the court may at any time, and whether or not an application has been made by any party for that purpose appoint an independent scientific adviser to assist the court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose.
(2) The remuneration of the scientific adviser shall be fixed by the court and shall include the costs of making a report and a proper daily fee for any day on which the scientific adviser may be required to attend before the court, and such remuneration shall be defrayed out of moneys provided by Parliament by law for the purpose.
1[CHAPTER XIX
APPEALS TO THE APPELLATE BOARD
(1) Subject to the provisions of this Act, the Appellate Board established under section 83 of the Trade Marks Act, 1999 shall be the Appellate Board for the purposes of this Act and the said Appellate Board shall exercise the jurisdiction, power and authority conferred on it by or under this Act:
PROVIDED that the Technical Member of the Appellate Board for the purposes of this Act shall have the qualifications specified in sub-section (2).
(2) A person shall not be qualified for appointment as a Technical Member for the purposes of this Act unless he—
(a) has at least five years held the post of Controller under this Act or has exercised the functions of the Controller under this Act for at least five years; or
(b) has been for at least ten years functioned as a Registered Patent Agent and possesses a degree in engineering or technology or a masters degree in science from any University established under law for the time being in force or equivalent; or
2[(c) xxx]
S
Refusal of Controller to proceed with an application under section 15 not being an order, appeal thereagainst is maintainable.—Danieli AC Officcine Meccaniche SPA v. Controller of Patents 2000 (20) PTC 219 (Call)
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1. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
2. Clause (c) omitted by the Patents (Amdt.) Act, 2005, w.e.f. the date to be notified.
(1) The Central Government shall determine the nature and categories of the officers and other employees required to assist the Appellate Board in the discharge of its functions under this Act and provide the Appellate Board with such officers and other employees as it may think fit.
(2) The salaries and allowances and conditions of service of the officers and other employees of the Appellate Board shall be such as may be prescribed.
(3) The officers and other employees of the Appellate Board shall discharge their functions under the general superintendence of the Chairman of the Appellate Board in the manner as may be prescribed.
(1) Save as otherwise expressly provided in sub-section (2), no appeal shall lie from any decision, order or direction made or issued under this Act by the Central Government, or from any act or order of the Controller for the purpose of giving effect to any such decision, order or direction.
(2) An appeal shall lie to the Appellate Board from any decision, order or direction of the Controller or Central Government under section 15, section 16, section 17, section 18, section 19, 1[section 20, sub-section (4) of section 25, section 28], section 51, section 54, section 57, section 60, section 61, section 63, section 66, sub-section (3) of section 69, section 78, subsections (1) to (5) of section 84, section 85, section 88, section 91, section 92 and section 94.
(3) Every appeal under this section shall be in the prescribed form and shall be verified in such manner as may be prescribed and shall be accompanied by a copy of the decision, order or direction appealed against and by such fees as may be prescribed.
(4) Every appeal shall be made within three months from the date of the decision, order or direction, as the case may be, of the Controller or the Central Government or within such further time as the Appellate Board may, in accordance with the rules made by it, allow.
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1. Substituted for “section 20, section 25, section 27, section 28″ by the Patents (Amdt.) Act, 2005, w.e.f. the date to be notified.
The provisions of sub-sections (2) to (6) of section 84, section 87, section 92, section 95 and section 96 of the Trade Marks Act, 1999 shall apply to the Appellate Board in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Trade Marks Act, 1999.
No court or other authority shall have or, be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in sub-section (2) of section 117A or section 117D.
(1) An application 1[for revocation of a patent before the Appellate Board under section 64 and an application for rectification of the register] made to the Appellate Board under section 71 shall be in such form as may be prescribed.
(2) A certified copy of every order or judgment of the Appellate Board relating to a patent under this Act shall be communicated to the Controller of the Board and the Controller shall give effect to the order of the Board and shall, when so directed, amend the entries in, or rectify, the register in accordance with such order.
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1. Substituted for “for rectification of the register” by the Patents (Amdt.) Act, 2005, w.e.f. the date to be notified.
(1) The Controller shall have the right to appear and be heard—
(a) in any legal proceedings before the Appellate Board in which the relief sought includes alteration or rectification of the register or in which any question relating to the practice of the patent office is raised;
(b) in any appeal to the Appellate Board from an order of the Controller on an application for grant to a patent—
(i) which is not opposed, and the application is either refused by the Controller or is accepted by him subject to any amendments, modifications, conditions or limitations, or
(ii) which has been opposed and the Controller considers that his appearance is necessary in the public interest, and the Controller shall appear in any case if so directed by the Appellate Board.
(2) Unless the Appellate Board otherwise directs, the Controller may, in lieu of appearing, submit a statement in writing signed by him, giving such particulars as he thinks proper of the proceedings before him relating to the matter in issue or of the grounds of any decision given by him or of the practice of the patent office in like cases, or of other matters relevant to the issues and within his knowledge as the Controller may deem it necessary, and such statement shall be evidence in the proceedings.
In all proceedings under this Act before the Appellate Board, the costs of the Controller shall be in the discretion of the Board, but the Controller shall not be ordered to pay the costs of any of the parties.
1[Transfer of pending proceedings to Appellate Board. All cases of appeals against any order or decision of the Controller and all cases pertaining to revocation of patent other than on a counter-claim in a suit for infringement and rectification of register pending before any High Court, shall be transferred to the Appellate Board from such date as may be notified by the Central Government in the Official Gazette and the Appellate Board may proceed with the matter either de novo or from the stage it was so transferred.]
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1. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. the date to be notified.
[The Appellate Board may make rules consistent with this Act as to the conduct and procedure in respect of all proceedings before it under this Act.]
If any person fails to comply with any direction given under section 35, 1[or makes or causes to be made an application for the grant of a patent in contravention of section 39] he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
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1. Inserted, by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
If any person makes, or causes to be made, a false entry in any register kept under this Act, or a writing falsely purporting to be a copy of an entry in such a register, or produces or tenders, or causes to be produced or tendered, in evidence any such writing knowing the entry or writing to be false, he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
If any person falsely represents that any article sold by him is patented in India or is the subject of an application for a patent in India, he shall be punishable with fine which may extend to 1[one lakh] rupees.
Explanation 1 : For the purposes of this section, a person shall be deemed to represent —
(a) that an article is patented in India if there is stamped, engraved or impressed on, or otherwise applied to, the article the word “patent” or “patented” or some other word expressing or implying that a patent for the article has been obtained in India;
(b) that an article is the subject of an application for a patent in India if there are stamped, engraved or impressed on, or otherwise applied to, the article the words “patent applied for”, “patent pending”, or some other words implying that an application for a patent for the article has been made in India.
Explanation 2: The use of words “patent”, “patented”, “patent applied for”, “patent pending” or other words expressing or implying that an article is patended or that a patent has been applied for shall be deemed to refer to a patent in force in India, or to a pending application for a patent in India, as the case may be, unless there is an accompanying indication that the patent has been obtained or applied for in any country outside India.
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1. Substituted for “ten thousand” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
If any person uses on his place of business or any document issued by him or otherwise the words “patent office” or any other words which would reasonably lead to the belief that his place of business is or is officially connected with, the patent office, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.
(1) If any person refuses or fails to furnish—
(a) to the Central Government any information which he is required to furnish under sub-section (5) of section 100,
(b) to the Controller any information or statement which he is required to furnish by or under section 146. he shall be punishable with fine which may extend to 1[ten lakh rupees]
(2) If any person, being required to furnish any such information as is referred to in subsection (1), furnishes information or statement which is false and which he either knows or has reason to believe to be false or does not believe to be true, he shall be punishable with imprisonment which may extend to six months, or with fine, or with both.
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1. Substituted for “twenty thousand rupees” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
If any person contravenes the provisions of section 129, he shall be punishable with fine which may extend to 1[one lakh rupees in the case of a first offence and five lakh rupees] in the case of a second or subsequent offence.
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1. Substituted for “ten thousand rupees in the case of a first offence and forty thousand rupees” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
PROVIDED that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation : 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[Register of patent agents. (1) The Controller shall maintain a register to be called the register of patent agents in which shall be entered the names, addresses and other relevant particulars, as may be prescribed, of all persons qualified to have their names so entered under section 126.
(2) Notwithstanding anything contained in sub-section (1), it shall be lawful for the Controller to keep the register of patent agents in computer floppies, diskettes or any other electronic form subject to such safeguards as may be prescribed.]
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1. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561 (E), dt. 20-5-2003.
(1) A person shall be qualified to have his name entered in the register of patent agents if he fulfils the following conditions, namely,—
(a) he is a citizen of India;
(b) he has completed the age of 21 years;
(c) he has obtained a 1[degree in science, engineering or technology from any University established under law for the time being in force] in the territory of India or possesses such other equivalent qualifications as the Central Government may specify in this behalf, and, in addition—
2[(i) xxx]
(ii) has passed the qualifying examination prescribed for the purpose; 3[or]
3[(iii) has, for a total period of not less than ten years, functioned either as an examiner or discharged the functions of the Controller under section 73 or both, but ceased to hold any such capacity at the time of making the application for registration.]
(d) he has paid such fee as may be prescribed.
4[(2) Notwithstanding anything contained in sub-section (1), a person who has been registered as a patent agent before the commencement of 5[the Patents (Amendment) Act, 2005] shall be entitled to continue to be, or when required to be re-registered, as a patent agent, on payment of the fee as may be prescribed].
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1. Substituted for “degree from any university”, ibid.
2. Sub-clause (i) omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561 (E), dt. 20-5-2003.
4. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
5. Substituted for “the Patents (Amdt.) Act, 2002″ by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
Subject to the provisions contained in this Act and to any rules made thereunder, every patent agent whose name is entered in the register shall be entitled—
(a) to practise before the Controller; and
(b) to prepare all documents, transact all business and discharge such other functions as may be prescribed in connection with any proceedings before the Controller under this Act.
(1) All applications and communications to the Controller under his Act may be signed by a patent agent authorised in writing in this behalf by the person concerned.
1[(2) xxx]
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1. Omitted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
(1) No person, either alone or in partnership with any other person, shall practise, describe or hold himself out as a patent agent or permit himself to be so described or held out, unless he is registered as patent agent or, as the case may be, unless he and all his partners are so registered.
(2) No company or other body corporate shall practise, describe itself or hold itself out as patent agents or permit itself to be so described or held out.
Explanation : For the purposes of this section, practise, as a patent agent includes any of the following acts, namely,—
(a) applying for or obtaining patents in India or elsewhere;
(b) preparing specifications or other documents for the purposes of this Act or of the patent law of any other country;
(c) giving advice other than of scientific or technical nature as to the validity of patents or their infringement.
(1) The 1[Controller] may remove the name of any person from the register when it is satisfied, after giving that person a reasonable opportunity of being heard and after such further inquiry, if any, as 2[he] thinks fit to make—
(i) that his name has been entered in the register by error or on account of misrepresentation or suppression of material fact; or
(ii) that he has been convicted of any offence and sentenced to a term of imprisonment or has been guilty of misconduct in his professional capacity which in the opinion of the 3[Controller] renders him unfit to be kept in the register.
(2) The 3[Controller] may, on application and on sufficient cause being shown, restore to the register the name of any person removed therefrom.
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1. Substituted for “Central Government”, ibid.
2. Substituted for “it”, ibid.
3. Substituted for “Central govt.” by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.0.561(E), dt. 20-5-2003.
(1) Subject to any rules made in this behalf, the Controller may refuse to recognise as agent in respect of any business under this Act—
(a) any individual whose name has been removed from, and not restored to, the register;
(b) any person who has been convicted of an offence under section 123; ,
(c) any person, not being registered as a patent agent, who in the opinion of the 1[Controller] is engaged wholly or mainly in acting as agent in applying for patents in India or elsewhere in the name or for the benefit of the person by whom he is employed;
(d) any company or firm, if any person whom the 1[Controller] could refuse to recognise as agent in respect of any business under this Act, is acting as a director or manager of the company or is a partner in the firm.
(2) The 1[Controller] shall refuse to recognise as agent in respect of any business under this Act any person who neither resides nor has a place of business in India.
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1. Substituted for “Central govt.” by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.0.561(E), dt. 20-5-2003.
Nothing in this chapter shall be deemed to prohibit—
(a) the applicant for a patent 1[x x x] from drafting any specification or appearing or acting before the Controller; or
(b) an advocate, not being a patent agent, from taking part in any 2[hearing before the Controller on behalf of a party who is taking part in any proceeding under this Act].
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1. Words “or any person, not being a patent agent who is duly authorised by the applicant” omitted, by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561 (E), dt. 20-5-2003.
2. Substituted for “proceedings under this Act otherwise than by way of drafting any specification”, ibid.
1[Convention countries. Any country, which is a signatory or party or a group of countries, union of countries or inter-governmental organizations which are signatories or parties to an international, regional or bi-lateral treaty, convention or arrangement to which India is also a signatory or party and which affords to the applicants for patents in India or to citizens of India similar privileges as are granted to their own citizens or citizens to their member countries in respect of the grant of patents and protection of patent rights shall be a convention country or convention countries for the purposes of this Act.]
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1. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
Where any country specified by the Central Government in this behalf by notification in the Official Gazette does not accord to citizens of India the same rights in respect of the grant of patents and the protection of patent rights as it accords to its own nationals, no national of such country shall be entitled, either solely or jointly with any other person—
(a) to apply for the grant of a patent or be registered as the proprietor of a patent;
(b) to be registered as the assignee of the proprietor of a patent; or
(c) to apply for a licence or hold any licence under a patent granted under this Act.
(1) Without prejudice to the provisions contained in section 6, where a person has made an application for a patent in respect of an invention in a convention country (hereinafter referred to as the “basic application”), and that person or the legal representative or assignee of that person makes an application under this Act for a patent within twelve months after the date on which the basic application was made, the priority date of a claim of the complete specification, being a claim based on matter disclosed in the basic application, is the date of making of the basic application.
Explanation : Where applications have been made for similar protection in respect of an invention in two or more convention countries, the period of twelve months referred to in this sub-section shall be reckoned from the date on which the earlier or earliest of the said applications was made.
(2) Where applications for protection have been made in one or more convention countries in respect of two or more inventions which are cognate or of which one is a modification of another, a single convention application may, subject to the provisions contained in section 10, be made in respect of those inventions at any time within twelve months from the date of the earliest of the said applications for protection:
PROVIDED that the fee payable on the making of any such application shall be the same as if separate applications have been made in respect of each of the said inventions, and the requirements of clause (b) of sub-section (1) of section 136 shall, in the case of any such application, apply separately to the applications for protection in respect of the said inventions.
1[(3) In case of an application filed under the Patent Cooperation Treaty designating India and claiming priority from a previously filed application in India, the provisions of subsections (1) and (2) shall apply as if the previously filed application were the basic application:
PROVIDED that a request for examination under section 11B shall be made only for one of the applications filed in India.]
——————–
1. Inserted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) Every convention application shall—
(a) be accompanied by a complete specification; and
(b) specify the date on which and the convention country in which the application for protection, or as the case may be, the first of such applications was made; and
(c) state that no application for protection in respect of the invention had been made in a convention country before that date by the applicant or by any person from whom he derives title.
(2) Subject to the provisions contained in section 10, a complete specification filed with a convention application may include claims in respect of developments of, or additions to, the invention in respect of which the application for protection was made in a convention country, being developments or additions in respect of which the applicant would be entitled under the provisions of section 6 to make a separate application for a patent.
(3) A convention application shall not be post-dated under sub-section (1) of section 17 to a date later than the date on which under the provisions of this Act the application could have been made.
(1) Where two or more applications for patents in respect of inventions have been made in one or more convention countries and those inventions are so related as to constitute one invention, one application may be made by any or all of the persons referred to in subsection (1) of section 135 within twelve months from the date on which the earlier or earliest of those applications was made, in respect of the inventions disclosed in the specifications which accompanied the basic applications.
(2) The priority date of a claim of the complete specification, being a claim based on matters disclosed in one or more of the basic applications, is the date on which that matter was first so disclosed.
(3) For the purposes of this Act, a matter shall be deemed to have been disclosed in a basic application for protection in a convention country if it was claimed or disclosed (otherwise than by way of disclaimer or acknowledgment of a prior art) in that application, or any documents submitted by the applicant for protection in support of and at the same time as that application, but no account shall be taken of any disclosure effected by any such document unless a copy of the document is filed at the patent office with the convention application or within such period as may be prescribed after the filing of that application.
1[(1) Where a convention application is made in accordance with the provisions of this Chapter, the applicant shall furnish, when required by the Controller, in addition to the complete specification, copies of the specifications or corresponding documents filed or deposited by the applicant in the patent office of the convention country as referred to in section 133 verified to the satisfaction of the Controller, within the prescribed period from the date of communication by the Controller.]
(2) If any such specification or other document is in a foreign language, a translation into English of the specification or document, verified by affidavit or otherwise to the satisfaction of the Controller, shall be 2[furnished when required by the Controller].
(3) For the purposes of this Act, the date on which an application was made in a convention country is such date as the Controller is satisfied, by certificate of the official chief or head of the patent office of the convention country or otherwise is the date on which the application was made in that convention country.
3[(4) An international application filed under the Patent Co-operation Treaty designating India shall have effect of filing an application for patent under section 7, section 54 and section 135, as the case may be, and the title, description, claim and abstract and drawings, if any, filed in the international application shall be taken as complete specification for the purposes of this Act.
(5) The filing date of an application for patent and its complete specification processed by the patent office as designated office shall be the international filing date accorded under the Patent Cooperation Treaty.
(6) Amendment, if any, proposed by the applicant for an international application designating India or designating and electing India before international searching authority or preliminary examination authority shall, if the applicant so desires, be taken as an amendment made before the patent office.]
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1. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted for “annexed to the specification or document”, by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561 (E), dt. 20-5-2003.
3. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
Save as otherwise provided in this chapter, all the provisions of this Act shall apply in relation to convention application and a patent granted in pursuance thereof as they apply in relation to an ordinary application and a patent granted in pursuance thereof.
(1) It shall not be lawful to insert—
(i) in any contract for or in relation to the sale or lease of a patented article or an article made by a patented process; or
(ii) in a licence to manufacture or use a patented article; or
(iii) in a licence to work any process protected by a patent, a condition the effect of which may be—
(a) to require the purchaser, lessee, or licensee to acquire from the vendor, lessor, or licensor, or his nominees, or to prohibit him from acquiring or to restrict in any manner or to any extent his right to acquire from any person or to prohibit him from acquiring except from the vendor, lessor, or licensor or his nominees, any article other than the patented article or an article other than that made by the patented process; or
(b) to prohibit the purchaser, lessee or licensee from using, or to restrict in any manner or to any extent the right of the purchaser, lessee or licensee, to use an article other than the patented article or an article other than that made by the patented process, which is not supplied by the vendor, lessor or licensor or his nominee; or
(c) to prohibit the purchaser, lessee or licensee from using or to restrict in any manner or to any extent the right of the purchaser, lessee or licensee to use any process other than the patented process, and any such condition shall be void.
1[(d) to provide exclusive grant back, prevention to challenges to validity of patent and coercive package licensing.]
(2) A condition of the nature referred to in clause (a) or clause (b) or clause (c) of subsection (1) shall not cease to be a condition falling within that sub-section merely by reason of the fact that the agreement containing it has been entered into separately, whether before or after the contract relating to the sale, lease or licence of the patented article or process.
(3) In proceedings against any person for the infringement of a patent, it shall be a defence to prove that at the time of the infringement there was in force a contract relating to the patent and containing a condition declared unlawful by this section:
PROVIDED that this sub-section shall not apply if the plaintiff is not a party to the contract and proves to the satisfaction of the court that the restrictive condition was inserted in the contract without his knowledge and consent, express or implied.
(4) Nothing in this section shall—
(a) affect a condition in a contract by which a person is prohibited from selling goods other than those of a particular person;
(b) validate a contract which, but for this section, would be invalid;
(c) affect a condition in a contract for the lease of, or licence to use, a patented article, by which the lessor or licensor reserves to himself or his nominee the right to supply such new parts of the patented article as may be required or to put or keep it in repair.
2[(5) xxx]
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1. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
2. Omitted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
(1) Any contract for the sale or lease of a patented article or for licence to manufacture, use or work a patented article or process, or relating to any such sale, lease or licence, 1[x x x], may at any time after the patent or all the patents by which the article or process was protected at the time of the making of the contract has or have ceased to be in force, and notwithstanding anything to the contrary in the contract or in any other contract, be determined by the purchaser, lessee, or licensee, as the case may be, of the patent on giving three months’ notice in writing to the other party.
(2) The provisions of this section shall be without prejudice to any right of determining a contract exercisable apart from this section.
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1. Words “whether made before or after the commencement to this Act” omitted, by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
(1) There shall be paid in respect of the grant of patents and applications therefor, and in respect of other matters in relation to the grants of patents under this Act, such fees as may be prescribed by the Central Government.
(2) Where a fee is payable in respect of the doing of an act by the Controller, the Controller shall not do that act until the fee has been paid.
1[(3) Where a fee is payable in respect of the filing of a document at the patent office, the fee shall be paid along with the document or within the prescribed time and the document shall be deemed not to have been filed at the office if the fee has not been paid within such time.]
(4) Where a principal patent is granted later than two years from the date of filing of the 2[the application], the fees which have become due in the meantime may be paid within a term of three months from the date of the recording of the patent in the register 3[or within the extended period not later than nine months from the date of recording.]
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1. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
2. Substituted for “complete specification” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
1[Restrictions upon publication of specification. Subject to the provisions of Chapter VII, an application for a patent, and any specification filed in pursuance thereof, shall not, except with the consent of the applicant, be published by the Controller before the expiration of the period prescribed under sub-section (1) of section 11A or before the same is open to public inspection in pursuance of sub-section (3) of section 11A or section 43.]
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1. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
The reports of examiners to the Controller under this Act shall not be open to public inspection or be published by the Controller; and such reports shall not be liable to production or inspection in any legal proceeding unless the court certifies that the production or inspection is desirable in the interest of justice, and ought to be allowed.
1[Publication of official journal. The Controller shall publish periodically an official journal which shall contain such information as may be required to be published by or under the provisions of this Act or any rule made thereunder.]
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1. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) The Controller may, at any time during the continuance of the patent, by notice in writing, require a patentee or a licensee, exclusive or otherwise, to furnish to him within two months from the date of such notice or within such further time as the Controller may allow, such information or such periodical statements as to the extent to which the patented invention has been commercially worked in India as may be specified in the notice.
(2) Without prejudice to the provisions of sub-section (1), every patentee and every licensee (whether exclusive or otherwise) shall furnish in such manner and form and at such intervals (not being less than six months) as may be prescribed statements as to the extent to which the patented invention has been worked on a commercial scale in India.
(3) The Controller may publish the information received by him under sub-section (1) or sub-section (2) in such manner as may be prescribed.
(1) A certificate purporting to be signed by the Controller as to any entry, matter or thing which he is authorised by this Act or any rules made thereunder to make or do, shall be prima facie evidence of the entry having been made and of the contents thereof and of the matter or thing having been done or omitted to be done.
(2) A copy of any entry in any register or of any document kept in the patent office or of any patent, or an extract from any such register or document, purporting to be certified by the Controller and sealed with the seal of the patent office shall be admitted in evidence in all courts, and in all proceedings, without further proof or production of the original.
(3) The Controller or any other officer of the patent office shall not, in any legal proceedings to which he is not a party, be compellable to produce the register or any other document in his custody, the contents of which can be proved by the production of a certified copy issued under this Act or to appear as a witness to prove the matters therein recorded unless by order of the court made for special causes.
(1) If any person is, by reason of minority, lunacy or other disability, incapable of making any statement or doing anything required or permitted by or under this Act the lawful guardian, committee or manager (if any) of the person subject to the disability, or if there be none, any person appointed by any court possessing jurisdiction in respect of his property, may make such statement or a statement as nearly corresponding thereto as circumstances permit, and do such thing in the name and on behalf of the person subject to the disability.
(2) An appointment may be made by the court for the purposes of this section upon the petition of any person acting on behalf of the person subject to the disability or of any person interested in the making of the statement or the doing of the thing.
Any notice required or authorised to be given by or under this Act, and any application or other document so authorised or required to be made or filed, may be given, made or filed by post.
If any party by whom notice of any opposition is given under this Act or by whom application is made to the Controller for the grant of a licence under a patent neither resides nor carries on business in India, the Controller may require him to give security for the cost of the proceedings, and in default of such security being given may treat the opposition or application as abandoned.
(1) Every order of 1[the High Court or the Appellate Board] on a petition for revocation, including orders granting certificates of validity of any claim, shall be transmitted by 1[the High Court or the Appellate Board] to the Controller who shall cause an entry thereof and reference thereto to be made in the register.
(2) Where in any suit for infringement of a patent or in any suit under section 106 the validity of any claim or a specification is contested and that claim is found by the court to be valid or not valid, as the case may be, the court shall transmit a copy of its judgment and decree to the Controller who shall on receipt thereof cause an entry in relation to such proceeding to be made in the prescribed manner in a supplemental record.
(3) The provisions of sub-sections (1) and (2) shall also apply to the court to which appeals are preferred against decisions of the 2[Appellate Board or the Courts] referred to in those sub-sections.
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1. Substituted for “the High Court” by the Patents (Amdt.) Act, 2005, w.e.f. the date to be notified.
2. Substituted for “courts” by the Patents (Amdt.) Act, 2005, w.e.f. the date to be notified.
1[xxx]
——————–
1. Omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
A person making a request to the Controller in the prescribed manner for information relating to any such matters as may be prescribed as respects any patent specified in the request or as respects any application for a patent so specified shall be entitled, subject to the payment of the prescribed fee to have information supplied to him accordingly.
If a patent is lost or destroyed, or its non-production is accounted for to the satisfaction of the Controller, the Controller may at any time, on application made in the prescribed manner and on payment of the prescribed fee, cause a duplicate thereof to be sealed and delivered to the applicant.
The Central Government shall cause to be placed before both Houses of Parliament once a year a report respecting the execution of this Act by or under the Controller.
Subject to the other provisions contained in this Act, a patent shall have to all intents the like effect as against government as it has against any person.
Nothing in this Act shall affect the power of the government or of any person deriving title directly or indirectly from the government to sell or use any articles forfeited under any law for the time being in force.
1[Protection of security of India. Notwithstanding anything contained in this Act, the Central Government shall —
(a) not disclose any information relating to any patentable invention or any application relating to the grant of patent under this Act, which it considers prejudicial to the interest of the security of India;
(b) take any action including the revocation of any patent which it considers necessary in the interest of the security of India by issue of a notification in the official gazette to that effect.
Explanation : For the purposes of this section, the expression “security of India” includes any action necessary for the security of India which —
(i) relates to fissionable materials or the materials from which they are derived; or
(ii) relates to the traffic in arms, ammunition and implements of war -and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment; or
(iii) is taken in time of war or other emergency in international relations.]
——————–
1. Substituted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561 (E), dt. 20-5-2003.
The High Court may make rules consisent with this Act as to the conduct and procedure in respect of all proceedings before it under this Act.
(1) The Central Government may, by notification on the Official Gazette, make rules for carrying out the purposes of this Act.
(2) Without prejudice to the generality of the forgoing power, the Central Government may make rules to provide for all or any of the following matters, namely,—
(i) the form and manner in which any application for a patent, any specifications or drawings and any other application or document may be filed in the patent office;
1[(ia)the period which the Controller may allow the filing of statement and undertaking for in respect of applications under sub-section (1), the period within which the details relating to processing of applications may be filed before the Controller and the details to be furnished by the applicant to the Controller under sub-section (2) of section 8;
(ib) the period within which a reference to the deposit of materials shall be made in the specification under sub-clause (A) of clause (ii) of the proviso to sub-section (4) of section 10;
(ic) the period for which application for patent shall not be open to the public under sub-section (1) and the manner in which the applicant may make a request to the Controller to publish his application under sub-section (2) of section 11A;
(id) the manner of making the request for examination for an application for patent and the period within which such examination shall be made under sub-sections (1) and (3) of section 11B;
(ie) the manner in which an application for withdrawal of an application for grant of a patent shall be made and the period within which a request for examination from the date of revocation of secrecy directions shall be made under the proviso to sub-section (4) of section 11B.]
(ii) the time within which any act or thing may be done under this Act, including the manner in which and the time within which any matter may be 2[published] under this Act;
(iii) the fees which may be payable under this Act and the manner and time of payment of such fees;
(iv) the matters in respect of which the examiner may make a report to the Controller;
3[(v)the manner in which and the period within which the Controller shall consider and dispose off a representation under sub-section (1) of section 25;
(va) the period within which the Controller is required to dispose off an application under section 39;]
(vi) the form and manner in which and the time within which any notice may be given under this Act;
(vii) the provisions which may be inserted in an order for restoration of a patent for the protection of persons who may have availed themselves of the subjectmatter of the patent after the patent had ceased;
(viii) the establishment of branch offices of the patent office, and the regulation generally of the business of the patent office, including its branch offices;
(ix) the maintenance of the register of patents 4[and the safeguards to be observed in the maintenance of such register in computer floppies, diskettes or any other electronic form] and the matters to be entered therein;
(x) the matters in respect of which the Controller shall have powers of a civil court;
(xi) the time when and the manner in which the register and any other document open to inspection may be inspected under this Act;
(xii) the qualifications of, and the preparation of a roll of, scientific advisers for the purpose of section 115;
4[(xiia) the salaries and allowances and other conditions of service of the officers and other employees of the Appellate Board under sub-section (2), and the manner in which the officers and other employees of the Appellate Board shall discharge their functions under sub-section (3) of section 117;
(xiib) the form of making an appeal, the manner of verification and the fee payable under sub-section (3) of section 117A;
(xiic) the form in which, and the particulars to be included in, the application to the Appellate Board under sub-section (1) of section 117D;]
(xiii) the manner in which any compensation for acquisition by government of an invention may be paid;
(xiv) the manner in which the register of patent agents may be maintained 4[under sub-section (1) of section 125 and the safeguards to be observed in the maintenance of such register of patent agents on computer floppies, diskettes or any other electronic form under sub-section (2) of that section;] the conduct of qualifying examinations for patent agents; and matters connected with their practice and conduct, including the taking of disciplinary proceedings against patent agents for misconduct;
(xv) the regulation of the making, printing, publishing and selling of indexes to, and abridgments of specifications and other documents in the patent office, and the inspection of indexes and abridgments and other documents;
(xiv) any other matter which has to be or may be prescribed.
(3) The power to make rules under this section shall be subject to condition of the rules being made after previous publication:
5[PROVIDEO that the Central Government may, if it is satisfied that circumstances exist which render it practically not possible to comply with such condition of previous publication, dispense with such compliance.]
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1. Existing clauses (ia) and (ib) substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
2. Substituted for “advertised” by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
3. Substituted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
4. Inserted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
5. Inserted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
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 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[xxx]
——————–
1. Omitted by Patents (Amdt.) Act, 2002, w.e.f. 20-5-2003 vide S.O. 561(E), dt. 20-5-2003.
Section 162. Repeal of Act 2 of 1911 insofar as it relates to patents and saving
(1) The Indian Patents and Designs Act, 1911, in so far as it relates to patents, is hereby repealed, that is to say, the said Act shall be amended in the manner specified in the schedule.
1[x x x]
(4) The mention of particular matters in this section shall not prejudice the general application of the General Clauses Act, 1897, (10 of 1897) with respect to repeals.
(5) Notwithstanding anything contained in this Act, any suit for infringement of a patent or any proceeding for revocation of a patent, pending in any court at the commencement of this Act, may be continued and disposed of, as if this Act had not been passed.
——————–
1. Sub-sections (2) & (3) omitted, ibid.
1[xxx]
——————–
1. Existing section 163 omitted by the Patents (Amdt.) Act, 2005, w.e.f. 1-1-2005.
(1) This Act may be called the Child Marriage Restraint Act (1929).
(2) It extends to the whole of Pakistan and applies to all citizens of Pakistan wherever they may be.
(3) It shall come into force on the 1st day of April, 1939.
In this Act, unless there is anything repugnant in the subject or context,
(a) “child” means a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age;
(b) “child marriage” means a marriage to which either of the contracting parties is a child;
(c) “contracting party” to a marriage means either of the parties whose marriage is or is about to be thereby solemnized;
(d) “minor” means person of either sex who is under eighteen years of age,
(e) “Union Council” means the Union Council or the Town Committee constituted under the Law relating to Local Government for the time being in force.
PUNJAB AMENDMENT IN SECTION 2:
(i) at the end of clause ©, the word “and” shall be added;
(ii) the comma appearing at the end of clause (d) shall be replaced by a full stop; and
(iii) clause e shall be omitted.
Punjab Ordinance, 23 of 1971.
Whoever, being a male above eighteen years of age, contracts child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.
Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both, unless he proves that he had reason to believe that the marriage was not a child marriage.
(1) Where a minor contracts a child marriage any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both:
Provided that no woman shall be punishable with imprisonment.
(2) For the purpose of this section, it shall be presumed, unless and until the contrary is proved, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnized.
Notwithstanding anything contained in section 25 of the General Clauses At, 1897, or section 64 of the Pakistan Penal Code, Court sentencing an offender under section 3 shall not be competent to direct that, in default of payment of the fine imposed, he shall undergo only term of imprisonment.
Notwithstanding anything contained in section 90 of the Code of Criminal Procedure, 1898, no Court other than that of a Magistrate of the First Class shall take cognizance of or try any offence under this Act.
No Court shall take cognizance of any offence under this Act except on a complaint made by the Union Council, or if there is no Union Council in the area, by such authority as the Provincial Government may in this behalf prescribe, and such cognizance shall in no case be taken after the expiry of one year from the date on which the offence is alleged to have been committed.
In section 9:
The words and commas “except on a complaint made by the Union Council, or if there is no Union Council in the area, by such authority as the Provincial Government may in this behalf prescribe, and such cognizance shall in no case be taken” occurring after the words “under this Act” and before the words “after the expiry” shall be omitted.
Punjab Ordinance, 23 of 1971, S. 3.
The Court taking cognizance of an offence under this Act shall, unless it dismisses the complaint under section 203 of the Code of Criminal Procedure, 1898, either itself make an inquiry under section 202 of that Code or direct a Magistrate of the First Class subordinate to it to make such inquiry.
(1) Notwithstanding anything to the contrary contained in this Act, the Court may, if satisfied from information laid before it through a complaint or otherwise that a child marriage in contravention of this Act has been arranged or is about to be solemnized, issue an injunction against any of the persons mentioned in sections 3, 4, 5 and 9 of this Act prohibiting such marriage.
(2) No injunction under sub-section (1) shall be issued against any person unless the Court has previously given notice to such person, and has afforded him an opportunity to show-cause against the issue of the injunction.
(3) The Court may either on its own motion or on the application of any person aggrieved, rescind or alter any order made under sub-section (1).
(4) Where such an application is received, the Court shall afford the applicant an early opportunity of appearing before it either in person or by pleader, and if the Court rejects the application wholly or in part, it shall record in writing its reasons for so doing.
(5) Whoever, knowing that an injunction has been issued against him under sub-section (1) of this section disobeys such injunction shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both:
Provided that no woman shall be punishable with imprisonment.
An Act to constitute a Reserve Bank of India
Whereas it is expedient to constitute a Reserve Bank for India to regulate the issue of Bank notes and the keeping of reserves with a view to securing monetary stability in India and generally to operate the currency any credit system of the country to its advantage;
And whereas in the present disorganisation of the monetary systems of the world it is not possible to determine what will be suitable as a permanent basis for the Indian monetary system;
But whereas it is expedient to make temporary provision on the basis of the existing monetary system, and to leave the question of the monetary standard best suited to India to be considered when the international monetary position has become sufficiently clear and stable to make it possible to frame permanent measures;
It is hereby enacted as follows: -
(1) This Act may be called the Reserve Bank of India Act, 1934.
(2) It extends to the whole of India.
(3) This section shall come into force at once, and the remaining provisions of this Act shall came into force on such date or dates as the Central Government may, by notification in the Gazette of India, appoint.
In this Act, unless there is anything repugnant in the subject or context, -
(a) 1[***]
(ai) 1[***]
(aii) “The Bank” means the Reserve Bank of India constituted by this Act;
(aiii) “Bank for International Settlements”, means the body corporate established with the said name under the law of Switzerland in pursuance of an agreement, dated the 20th January, 1930, signed at the Hague;
(b) “The Central Board” means the Central Board of Directors of the Bank;
(bi) 1[***]
(bii) 1[***]
(biii) 1[***]
(biv) 1[***]
(bv) 1[***]
(bvi) “Deposit Insurance Corporation” means the Deposit Insurance Corporation established under section 3 of the Deposit Insurance Corporation Act, 1961 (47 of 1961);
(bvii) “Development Bank” means the Industrial Development Bank of India established under the Industrial Development Bank of India Act, 1964 (18 of 1964);
(bviii) 1[***]
2[(bviiia) “Exim Bank” means the Export-Import Bank of India established under the Export – Import Bank of India Act, 1981 (28 of 1981);]
(bix) “Foreign currency” and “foreign exchange” have the meanings respectively assigned to them in the Foreign Exchange Regulation Act, 1973 (46 of 1973);
(c) “Industrial Finance Corporation” means the Industrial Finance Corporation of India established under the Industrial Finance Corporation Act, 1948 (15 of 1948);
(ca) “International Development Association” means the “Association” referred to in the International Development Association (Status, Immunities and Privileges) Act, 1960 (32 of 1960);
(cb) “International Finance Corporation” means the “Corporation” referred to in the International Finance Corporation (Status, Immunities and Privileges) Act, 1958 (42 of 1958);
(cc) “International Monetary Fund” and “International Bank for Reconstruction and Development” means respectively the “International Fund” and the “International Bank”, referred to in the International Monetary Fund and Bank Act, 1945;
1[(ccc) “National Bank” means the National Bank for Agriculture and Rural Development established under section 3 of the National Bank for Agriculture and Rural Development Act, 1981 (61 of 1981);]
3[(cccc) “National Housing Bank” means the National Housing Bank established under section 3 of the National Housing Bank Act, 1987 (53 of 1987);]
(ci)-(civ) 1[***]
4[(cv) “Reconstruction Bank” means the Industrial Reconstruction Bank of India established under section 3 of the Industrial Reconstruction Bank of India Act, 1984 (62 of 1984);]
(d) “Rupee coin” means rupees which are legal tender in India under the provisions of the Indian Coinage Act, 1906 (3 of 1906);
(e) “Scheduled bank” means a bank included in the Second Scheduled;
5[(e1) “Small Industries Bank” means the Small Industries Development Bank of India established under section 3 of the Small Industries Development Bank of India Act, 1989;]
(ea) “Sponsor Bank” means a Sponsor Bank as defined in the Regional Rural Banks Act, 1976 (21 of 1976);
(eb) “State Bank” means the State Bank of India constituted under the State Bank of India Act, 1955 (23 of 1955);
(f) 1[***]
(f1) “State Financial Corporation” means any State Financial Corporation established under the State Financial Corporations Act, 1951 (63 of 1951);
(g) “Unit Trust” means the Unit Trust of India established under section 3 of the Unit Trust of India Act, 1963 (25 of 1963);
6[(h) “Agricultural operations”, “central co-operative bank”, “co-operative society”, “crops”, “marketing of crops”, “pisciculture”, “regional rural bank” and “State co-operative bank” shall have the meanings respectively assigned to them in the National Bank for Agriculture and Rural Development Act, 1981 (61 of 1981);
(i) “Co -operative bank”, “co-operative credit society”, “director”, “primary agricultural credit society”, “primary co-operative bank” and “primary credit society” shall have the meanings respectively assigned to them in Part V of the Banking Regulation Act, 1949 (10 of 1949).]
——————–
1. Omitted by Act No. 61 of 1981, w.e.f. 1/5/1982.
2. Inserted by Act No. 28 of 1981, w.e.f. 1/1/1982.
3. Inserted by Act No. 53 of 1987, w.e.f. 9/7/1988.
4. Inserted by Act No. 62 of 1984, w.e.f. 20/3/1985.
5. Inserted by Act No. 39 of 1989, w.e.f. 7/3/1990.
6. Inserted by Act No. 61 of 1981, w.e.f. 1/5/1982.
(1) A bank to be called the Reserve Bank of India shall be constituted for the purposes of taking over the management of the currency from the Central Government and of carrying on the business of banking in accordance with the provisions of this Act.
(2) The Bank shall be a body corporate by the name of the Reserve Bank of India, having perpetual succession and a common seal, and shall by the said name sue and be sued.
The capital of the bank shall be five crores of rupees.
The Bank shall as soon as may be, establish offices in Bombay, Calcutta, Delhi and Madras and may establish branches or agencies in any other place in India or, with the previous sanction of the Central Government elsewhere.
(1) The Central Government may from time to time give such directions to the Bank as it may, after consultation with the Governor of the Bank, consider necessary in the public interests.
(2) Subject to any such directions, the general superintendence and direction of the affairs and business of the Bank shall be entrusted to a Central Board of Directors which may exercise all powers and do all acts and things which may be exercised or done by the Bank.
(3) Save as otherwise provided in regulations made by the Central Board, the Governor and in his absence the Deputy Governor nominated by him in his behalf, shall also have powers of general superintendence and direction of the affairs and the business of the Bank, and may exercise all powers and do all acts and things which may be exercised or done by the Bank.
Reserve Bank of India Act, 1934
(1) The Central Board shall consist of the following Directors, namely: -
(a) A Governor and not more than four Deputy Governors to be appointed by the Central Government;
(b) Four Directors to be nominated by the Central Government, one from each of the four Local Boards as constituted by section 9;
(c) Ten Directors to be nominated by the Central Government; and
(d) One Government official to be nominated by the Central Government.
(2) The Governor and Deputy Governors shall devote their whole time to the affairs of the Bank, and shall receive such salaries and allowances as may be determined by the Central Board, with the approval of the Central Government:
PROVIDED that the Central Board may, if in its opinion it is necessary in the public interest so to do, permit the Governor or a Deputy Governor to undertake, at the request of the Central Government or any State Government, such part-time honorary work, whether related to the purposes of this Act or not, as is not likely to interfere with his duties as Governor or Deputy Governor, as the case may be:
1[PROVIDED FURTHER that the Central Government may, in consultation with the Bank, appoint a Deputy Governor as the Chairman of the National Bank, on such terms and conditions as that Government may specify.]
(3) A Deputy Governor and the Director nominated under clause (d) of sub-section (1) may attend any meeting of the Central Board and take part in its deliberations but shall not be entitled to vote:
PROVIDED that when the Governor is, for any reason, unable to attend any such meeting, a Deputy Governor authorised by him in this behalf in writing may vote for him at that meeting.
(4) The Governor and a Deputy Governor shall hold office for such term not exceeding five years as the Central Government may fix when appointing them, and shall be eligible for re-appointment.
A Director nominated under clause (c) of sub-section (1) shall hold office for a period of four years and thereafter until his successor shall have been nominated.
A Director nominated under clause (d) of sub-section (1) shall hold office during the pleasure of the Central Government.
(5) No act or proceeding of the Board shall be questioned on the ground merely of the existence of any vacancy in, or any defect in the constitution, of the board.
(6) 2[***]
(7) A retiring director shall be eligible for re-nomination.
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1. Inserted by Act No. 61 of 1981, w.e.f. 1/5/1982.
2. Omitted by Act No. 18 of 1964, w.e.f. 1/7/1964.
(1) A Local Board shall be constituted for each of the four areas specified in Schedule I and shall consist of five members to be appointed by the Central Government to represent, as far as possible, territorial and economic interests and the interests of co-operative and indigenous banks.
(2) The members of the Local Board shall elect from amongst themselves one person to be the Chairman of the Board.
(3) Every member of a Local Board shall hold office for a term of four years and thereafter until his successor shall have been appointed and shall be eligible for re-appointment.
(4) A Local Board shall advise the Central Board on such matters as may be generally or specifically referred to it and shall perform such duties as the Central Board may delegate to it.
Section 10. Disqualifications of directors and members of Local Boards
(1) No person may be a Director or a member of a Local Board who-
(a) Is a salaried Government official; or
(b) Is, or at any time has been, adjudicated an insolvent, or has suspended payment or has compounded with his creditors; or
(c) Is found lunatic or becomes of unsound mind; or
(d) Is an officer or employee of any bank; or
(e) Is a Director of banking company within the meaning of clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949), or of a co-operative bank.
(2) No two persons who are partners of the same mercantile firm, or are Directors of the same private company, or one of whom is the general agent of or holds a power of procuration from the other, or from a mercantile firm of which the other is a partner, may be Directors or members of the same Local Board at the same time.
(3) Nothing in clause (a), clause (d) or clause (e) of sub-section (1) shall apply to the Governor, or to a Deputy Governor or to the Director nominated under clause (d) of sub-section (1) of section 8.
(1) The Central Government may remove from office the Governor, or a Deputy Governor or any other Director or any member of a Local Board.
(2) A Director nominated under clause (b) or clause (c) of sub-section (1) of section 8 shall cease to hold office if without leave from the Central Board he absents himself from three consecutive meetings of the Board convened under sub-section (1) of section 13.
(3) The Central Government shall remove from office any Director, and the Central Board shall remove from office any member of a Local Board, if such Director or member becomes subject to any of the disqualifications specified in sub-section (1) or sub-section (2) of section 10.
(4) A director or member of Local Board removed or ceasing to hold office under the foregoing sub-sections shall not be eligible for re-appointment either as Director or as member of a Local Board until the expiry of the term for which his appointment was made.
(5) The nomination as Director or member of a Local Board of any person who is a Member of Parliament or the Legislature of any State shall be void, unless within two months of the date of his nomination he ceases to be such member, and if any Director or member of a Local Board is elected or nominated as a member at Parliament or any such Legislature, he shall cease to be a Director or member of the Local Board as from the date of such election or nomination, as the case may be.
(6) A director may resign his office to the Central Government, and a member of a Local Board may resign his office to the Central Board, and on the acceptance of the resignation the office shall become vacant.
(1) If the Governor or a Deputy Governor by infirmity or otherwise is rendered incapable of executing his duties or is absent on leave or otherwise in circumstances not involving the vacation of his appointment, the Central Government may, after consideration of the recommendations made by the Central Board in this behalf, appoint another person to officiate for him, and such person may, notwithstanding anything contained in clause (d) of sub-section (1) of section 10, be an officer of the Bank.
(2) 1[***]
(3) Where any casual vacancy in the office of any member of a Local Board occurs, the Central Board may nominate thereto any person recommended by the other members of the Local Board.
(4) Where any casual vacancy occurs in the office of a Director other than the vacancies provided for in sub-section (1), the vacancy shall be filled by the Central Government.
(5) A person nominated under this section to fill a casual vacancy shall hold office for the unexpired portion of the term of his predecessor.
——————–
1. Omitted by Act No. 62 of 1948, w.e.f. 1/1/1949.
(1) Meetings of the Central Board shall be convened by the Governor at least six times in each year and at least once in each quarter.
(2) Any four Directors may require the Governor to convene a meeting of the Central Board at any time and the Governor shall forthwith convene a meeting accordingly.
(3) The Governor or if for any reason, he is unable to attend, the Deputy Governor authorised by the Governor under the proviso to sub-section (3) of Section 8 to vote for him, shall preside at meetings of the Central Board, and, in the event of an equality of voter, shall have a second or casting vote.
1 [General meetings]
——————–
1. Omitted by Act No. 62 of 1948, w.e.f. 1/1/1949.
1[First constitution of the Central Board]
——————–
1. Omitted by Act No. 62 of 1948, w.e.f. 1/1/1949.
1[First constitution of Local Boards]
——————–
1. Omitted by Act No. 62 of 1948, w.e.f. 1/1/1949.
The Bank shall be authorised to carry on and transact the several kinds of business hereinafter specified, namely:-
(1) The accepting of money on deposit without interest from, and the collection of money for, the Central Government, the State Governments, local authorities, banks and any other persons;
(2)
(a) The purchase, sale and rediscount of bills of exchange and promissory notes, drawn on and payable in India and arising out of bona fide commercial or trade transactions bearing two or more good signatures, one of which shall be that of a scheduled bank or a State co-operative bank or any financial institution, which is predominantly engaged in the acceptance or discounting of bills of exchange and promissory notes and which is approved by the Bank in this behalf and maturing-
(i) In the case of bills of exchange and promissory notes arising out of any such transaction relating to the export of goods from India, within one hundred and eighty days, and
(ii) In any other case, within ninety days,
From the date of such purchase or rediscount exclusive of days of grace;
(b) The purchase, sale and rediscount of bills of exchange and promissory notes, drawn and payable in India and bearing two or more good signatures, one of which shall be that of a scheduled bank or a State co-operative bank or any financial institution, which is predominantly engaged in the acceptance or discounting of bills of exchange and promissory notes and which is approved by the Bank in this behalf and drawn or issued for the purpose of financing agricultural operations or the marketing of crops, and maturing within fifteen months from the date of such purchase or rediscount, exclusive of days of grace;
1[***]
(bb) The purchase, sale and rediscount of bills of exchange and promissory notes drawn and payable in India and bearing two or more good signatures, one of which shall be that of a State co-operative bank or a State financial corporation or any financial institution, which is predominantly engaged in the acceptance or discounting of bills of exchange and promissory notes and which is approved by the Bank in this behalf, and drawn or issued for the purpose of financing the production or marketing activities of cottage and small scale industries approved by the Bank and maturing within twelve months from the date of such purchase or rediscount, exclusive of days of grace, provided that the payment of the principal and interest of such bills of exchange or promissory notes is fully guaranteed by the State Government;
(c) The purchase, sale and rediscount of bills of exchange and promissory notes drawn and payable in India and bearing the signature of a scheduled bank, and issued or drawn for the purpose of holding or trading in securities of the Central Government or a State Government, and maturing within ninety days from the date of such purchase or rediscount, exclusive of days of grace;
(3)
(a) The purchase from and sale to scheduled banks of foreign exchange;
(b) The purchase, sale and rediscount of bills of exchange (including treasury bills) drawn in or on any place in any country outside India which is a member of the International Monetary Fund and maturing: -
(i) In the case of bills of exchange arising out of any bona fide transaction relating to the export of goods from India, within one hundred and eighty days, and
(ii) In any other case, within ninety days,
From the date of such purchase or rediscount:
PROVIDED that no such purchase, sale or rediscount shall be made in India except with a scheduled bank or a State co-operative bank;
1[***]
(3A) The making to any scheduled bank or State co-operative bank, of loans and advances, against promissory notes of such bank, repayable on demand or on the expiry of fixed periods not exceeding one hundred and eighty days:
PROVIDED that the borrowing bank furnishes a declaration in writing, to the effect that-
(i) It holds bills of exchange arising out of any transaction relating to the export of goods from India, of a value not less than the amount of such loans or advances: -
(a) Drawn in India and on any place in any country outside India which is a member of the International Monetary Fund or in any other country notified in this behalf by the Bank in the Gazette of India, and
(b) Maturing not later than one hundred and eighty days from the date of the loan or advance, and it will, so long as any part of such loans and advances remains unpaid, continue to hold such bills of exchange of a value not less than the amount of such loans or advances outstanding for the time being; or
(ii) It has granted a pre-shipment loan or advance to an exporter or any other person in India in order to enable him to export goods from India, the amount of the loan or advance drawn and outstanding at any time being not less than the outstanding amount of the loan or advance obtained by the borrowing bank from the bank;
(3B) The making to any scheduled bank or State co-operative bank of loans and advances repayable on demand or on the expiry of fixed periods not exceeding one hundred and eighty days against promissory notes of such bank:
PROVIDED that the borrowing bank furnishes a declaration in writing to the effect that it has made loans and advances for bona fide commercial or trade transactions or for financing agricultural operations or the marketing of crops or for other agricultural purposes as set out in the declaration and the said declaration includes such other particulars as may be required by the bank;
(4) The making to local authorities, scheduled banks, State co-operative banks and State Financial Corporations of loans and advances, repayable on demand or on the expiry of fixed periods not exceeding ninety days, against the security of-
(a) Stocks, funds and securities (other than immovable property) in which a trustee is authorised to invest trust money by any Act of Parliament of the United Kingdom or by any law for the time being in force in India;
(b) Gold or silver or documents of title to the same;
(c) Such bills of exchange and promissory notes as are eligible for purchase or rediscount by the bank or as are fully guaranteed as to the repayment of the principal and payment of interest by a State Government;
(d) Promissory notes of any scheduled bank or State co-operative bank, supported by documents of title to goods such documents having been transferred, assigned, or pledged to any such bank as security for a loan or advance made for bona fide commercial or trade transactions, or for the purpose of financing agricultural operations or the marketing of crops:
PROVIDED that loans and advances made against the security of bills of exchange and promissory notes arising out of any transaction relating to the export of goods from India shall be repayable on demand or on the expiry of fixed periods not exceeding one hundred and eighty days;
(4A) The making to any State Financial Corporation, of loans and advances repayable on the expiry of fixed periods not exceeding eighteen months from the date of such loan or advance, against securities of the Central Government or of any State Government, of any maturity, or against bonds and debentures issued by that Corporation and guaranteed by the State Government concerned and maturing within a period not exceeding eighteen months from the date of such loan or advance:
PROVIDED that the previous approval of the State Government shall be obtained for the borrowing by the State Financial Corporation and the amount of loans and advances granted to that Corporation under this clause shall not, at any time, exceed in the aggregate twice the paid-up share capital thereof;
2[(4AA) The making of annual contributions to the National Rural Credit (Long Term Operations) Fund and the National Rural Credit (Stabilisation) Fund established under sections 42 and 43, respectively, of the National Bank for Agriculture and Rural Development Act, 1981;]
(4B) The making to the Industrial Finance Corporation of India of loans and advances-
(a) Repayable on demand or on the expiry of fixed periods not exceeding ninety days from the date of such loan or advance. against securities of the Central Government or of any State Government; or
(b) Repayable on the expiry of fixed periods not exceeding eighteen months from the date of such loan or advance, against securities of the Central Government or of any maturity, or against bonds and debentures issued by the said corporation and guaranteed by the Central Government and maturing within a period not exceeding eighteen months from the date of such loan or advance.
3[***]
(4BB) The making to any financial institution notified by the Central Government in this behalf, of loans and advances: -
(a) Repayable on demand or on the expiry of fixed periods not exceeding ninety days from the date of such loan or advance, against the securities of the Central Government or of any State Government; or
(b) Repayable on the expiry of fixed periods not exceeding eighteen months from the date of such loan or advance, against securities of the Central Government or of any State Government, of any maturity, or against bonds and debentures issued by that financial institution and guaranteed by the Central Government or any State Government, and maturing within a period not exceeding eighteen months from the date of such loan or advance:
PROVIDED that the amount of loans and advances granted to a financial institution under sub-clause (b) shall not, at any time, exceed in the aggregate sixty per cent of the paid-up share capital thereof;
(4BBB) The making to the Unit Trust of loans and advances-
(i) Repayable on demand or on the expiry of a fixed period not exceeding ninety days from the date of such loan or advance against the security of stocks, funds and securities (other than immovable property) in which a trustee is authorised to invest trust money by any law for the time being in force in India;
(ii) Repayable on demand or within a period of eighteen months from the date of such loan or advance against the security of the bonds of the Unit Trust issued with the approval of and guaranteed by the Central Government;
(iii) For the purpose of any scheme other than the first unit scheme under the Unit Trust of India Act, 1963 (52 of 1963) on such terms and conditions and against the security of such other property of the Unit Trust as may be specified in this behalf by the Bank;
(4C) The making to a Warehousing Corporation established under the Agricultural Produce (Development and Warehousing) Corporations Act, 1956 (28 of 1956), of loans and advances: -
(a) Repayable on demand or on the expiry of fixed periods not exceeding ninety days, from the date of such loan or advance, against securities of the Central Government or of any State Government; or
(b) Repayable on the expiry of fixed periods not exceeding eighteen months from the date of such loan or advance, against securities of the Central Government or of any State Government, of any maturity, or against bonds and debentures issued by the Corporation to which the loan or advance is made, and guaranteed by the Central or a State Government, and maturing within a period not exceeding eighteen months from the date of such loan or advance:
PROVIDED that the amount of loans and advances granted under clause (b) shall not at any time exceed, in the aggregate, three crores of rupees in the case of the Central Warehousing Corporation and fifty lakhs of rupees in the case of a State Warehousing Corporation;
(4D) The making to the Deposit Insurance Corporation of loans and advances; and generally assisting the Corporation in such manner and on such terms as may be determined by the Central Board;
4[(4DD) The making to the National Housing Bank of loans and advances and generally assisting the National Housing Bank in such manner and on such terms as may be determined by the Central Board;]
5[(4E) The making to the National Bank of loans and advances repayable on demand or on the expiry of fixed period not exceeding eighteen months from the date of making of the loan or advance, either-
(i) Against the security of stocks, funds and securities (other than immovable property) in which a trustee is authorised to invest trust money by any law for the time being in force in India; or
(ii) On such other terms and conditions as the Bank may specify;
(4F) Contributing to the initial capital of the Unit Trust;
(4G) The making of loans and advances to, and the purchasing of bonds and debentures of, the Development Bank 2[or the Exim Bank] 4[or the Reconstruction Bank] 5[or the Small Industries Bank] out of the National Industrial Credit (Long Term Operations) Fund established under section 46C;
6[(4GG) The making of loans and advances to, and the purchasing of bonds and debentures of, the National Housing Bank out of the National Housing Credit (Long Term Operations) Fund established under section 46D;
(4H) The making to the Development Bank 3[or the Small Industries Bank] of loans and advances-
(a) Repayable on demand or on the expiry of fixed periods not exceeding ninety days, from the date of such loan or advance against the security of stocks, funds and securities (other than immovable property) in which a trustee is authorised to invest trust money by any law for the time being in force in India; or
(b) Against the security of bills of exchange or promissory notes, arising out of bona fide commercial or trade transactions bearing two or more good signatures and maturing within five years from the date of such loan or advance;
(4-I) The making to scheduled banks, the Development Bank, the Exim Bank, 7[the Reconstruction Bank or the Small Industries Bank], the Industrial Finance Corporation and any other financial institution as may, on the recommendation of the Bank, be approved in this behalf by the Central Government of loans and advances repayable on demand or otherwise and against such security and on such other terms and conditions as may be approved in this behalf by the Central Board for the purpose of enabling such banks, or financial institution, as the case may be, to purchase foreign exchange from the Bank for the purpose of financing the import of capital goods or for such other purposes as may be approved by the Central Government;
(4J) The making to the Exim Bank of loans and advances-
(a) Repayable on demand or on the expiry of a fixed period not exceeding ninety days, from the date of such loan or advance against the security of stocks, funds and securities (other than immovable property) in which a trustee is authorised to invest trust money by any law for the time being in force in India; or
(b) Against the security of bills of exchange or promissory notes, arising out of bona fide commercial or trade transactions bearing two or more good signatures and maturing within five years from the date of such loan or advance;
(4K) The making to the Reconstruction Bank of loans and advances-
(a) Repayable on demand or on the expiry of a fixed period not exceeding ninety days, from the date of such loan or advance against the security of stocks, funds and securities (other than immovable property) in which a trustee is authorised to invest trust money by any law for the time being in force in India; or
(b) Against the security of bills of exchange or promissory notes, arising out of bona fide commercial or trade transactions bearing two or more good signatures and maturing within five years from the date of such loan or advance;
(5) The making to the Central Government and State Governments of advances repayable in each case not later than three months from the date of the making of the advance;
(6) The issue of demand drafts, telegraphic transfers and other kinds of remittances made payable at its own offices or agencies, the purchase of telegraphic transfers, and the making, issue and circulation of bank post bills;
11[(6-A) dealing in derivatives, and, with the approval of the Central Board, in any other financial instrument.
Explanation.-For the purposes of this clause, “derivative” means an instrument, to be settled at a future date, whose value is derived from change in one or a combination of more than one of the following underlying, namely:-
(a) interest rate,
(b) price of securities of the Central Government or a State Government or of such securities of a local authority as may be specified in this behalf by the Central Government,
(c) price of foreign securities,
(d) foreign exchange rate, index of rates of prices,
(e) credit rating or credit index,
(g) price of gold or silver coins, or gold or silver bullion, or
(h) any other variable of similar nature;]
(7) 8[***]
(8) The purchase and sale of securities of the Central Government or a State Government of any maturity or of such securities of a local authority as may be specified in this behalf by the Central Government on the recommendation of the Central Board:
PROVIDED that securities fully guaranteed as to principal and interest by any such Government or authority shall be deemed for the purposes of this clause to be securities of such Government or authority;
9[***]
Central Government in this behalf;
(9) The custody of monies, securities and other articles of value, and the collection of the proceeds, whether principal, interest or dividends, of any such securities;
(10) The sale and realisation of all property, whether movable or immovable, which may in any way come into the possession of the Bank in satisfaction, or part satisfaction, of any of its claims;
(11) The acting as agent for the Central Government or any State Government or any local authority or the Industrial Finance Corporation of India or any other body corporate which is established or constituted by or under any other law or the government of any such country outside India or any such person or authority as may be approved in this behalf by the Central Government in the transaction or any of the following kinds of business, namely: -
(a) The purchase and sale of gold or silver or foreign exchange;
(b) The purchase, sale, transfer and custody of bills of exchange, securities or shares in any company;
(c) The collection of the proceeds, whether principal, interest or dividends, of any securities or shares;
(d) The remittance of such proceeds, at the risk of the principal, by bills of exchange payable either in India or elsewhere;
(e) The management of public debt;
(f) The issue and management of bonds and debentures;
(11A) The acting as agent for the Central Government: -
(a) In guaranteeing the due performance by any small scale industrial concern, approved by the Central Government, of its obligations to any bank or other financial institution in respect of loans and advances made, or other credit facilities provided, to it by such bank or other financial institution and the making as such agent of payments in connection with such guarantee, and
(b) In administering any scheme for subsidising the rate of interest or other charges in relation to any loans or advances made, or other credit facilities provided, by banks or other financial institutions for the purpose of financing or facilitating any export from India and the making as such agent of payment on behalf of the Central Government;
(12) The purchase and sale of gold or silver coins and gold and silver bullion and foreign exchange and the opening of a gold account with the principal currency authority of any foreign country or the Bank for International. Settlement or any international or regional bank or financial institution formed by such principal currency authority or authorities or by the government of any foreign country;
(12A) The purchase and sale of securities issued by the government of any country outside India or by any institution or body corporate established outside India and expressed to be payable in a foreign currency or any international or composite currency unit, being in the case of purchase by the Bank securities maturing within a period of ten years from the date of purchase:
PROVIDED that in the case of securities of an institution or body corporate, the repayment of principal and payment of interest in respect of such securities shall be guaranteed by the government of the country concerned;
12[(12-AA) lending or borrowing of securities of the Central Government or a State Government or of such securities of a local authority as may be specified in this behalf by the Central Government or foreign securities;
(12-AB) dealing in repo or reverse repo:
Provided that lending or borrowing of funds by way of repo or reverse repo shall not be subject to any limitation contained in this section.
Explanation.- For the purposes of this clause,-
(a) “repo” means an instrument for borrowing funds by selling securities of the Central Government or a State Government or of such securities of a local authority as may be specified in this behalf by the Central Government or foreign securities, with an agreement to repurchase the said securities on a mutually agreed future date at an agreed price which includes interest for the funds borrowed;
(b) “reverse repo” means an instrument for lending funds by purchasing securities of the Central Government or a State Government or of such securities of a local authority as may be specified in this behalf by the Central Government or foreign securities, with an agreement to resell the said securities on a mutually agreed future date at an agreed price which includes interest for the funds lent;]
(12B) The making of loans and advances in foreign currencies to scheduled banks, the Development Bank, the Exim Bank,] 6[the Reconstruction Bank or the Small Industries Bank,] the Industrial Finance Corporation, any State Financial Corporation and any other financial institution as may, on the recommendation of the Bank, be approved by the Central Government and on such terms and conditions as may be specified by the Central Board in this behalf, against promissory notes of such bank or financial institution, as the case may be:
PROVIDED that the borrowing bank or financial institution, as the case may be, furnishes a declaration in writing to the effect that-
(a) It has made loans and advances in foreign currencies for financing international trade or for the import of capital goods or for such other purposes as may be approved by the Central Government; and
(b) That the amount of loans or advances so made and outstanding at any time will not be less than the outstanding amount of the loans or advances obtained by it from the Bank;
(13) The opening of an account with an office outside India of any bank, including a bank incorporated in India or the making of an agency agreement with, and the acting as an agent or correspondent of any bank incorporated outside India, or the principal currency authority of any country under the law for the time being in force in that country or any international or regional bank or financial institution formed by such principal currency authorities or foreign governments, and the investing of the funds of the Bank in the shares and securities of any such international or regional bank or financial institution or of any other foreign institution as may be approved by the Central Board in this behalf;
(13A) Participation in any arrangement for the clearing and settlement of any amounts due from, or to any person or authority on account of the external trade of India with any other country or group of countries or of any remittances to, or from, that country or group of countries, including the advancing, or receiving of any amount in any currency in connection therewith, and, for that purpose, becoming, with the approval of the Central Government, a member of any international or regional clearing union of central banks, monetary or other authorities, or being associated with any such clearing arrangements, or becoming a member of any body or association formed by central banks, monetary or other similar authorities, or being associated with the same in any manner;
(14) The borrowing of money for a period not exceeding one month for the purposes of the business of the Bank, and the giving of security for money so borrowed:
PROVIDED that no money shall be borrowed under this clause from any person in India other than a scheduled bank or from any person outside India other than a bank which is the principal currency authority of any country under the law for the time being in force in that country:
PROVIDED FURTHER that the total amount of such borrowings from persons in India shall not at any time exceed the amount of the capital of the Bank;
(15) The making and issue of bank notes subject to the provisions of this Act;
(15A) The exercise of powers and functions and the performance of duties entrusted to the Bank under this Act or under any other law for the time being in force;
(15B) The providing of facilities for training in banking and for the promotion of research, where, in the opinion of the Bank, such provision may facilitate the exercise by the Bank of its powers and functions, or the discharge of its duties;
(16) Generally, the doing of all such matters and things as may be incidental to or consequential upon the exercise of its powers or the discharge of its duties under this Act.
——————–
1. Omitted by Act No. 62 of 1948, w.e.f. 1/1/1949.
2. Substituted by Act No. 81 of 1985, w.e.f. 1/5/1986.
3. Earlier Proviso omitted by Act No. 66 of 1988, w.e.f. 30/12/1988.
4. Inserted by Act No. 53 of 1987, w.e.f. 9/7/1988.
6. Substituted by Act No. 61 of 1981, w.e.f. 1/5/1982.
7. Substituted for the words “or the Reconstruction Bank”, by Act No. 39 of 1989, w.e.f. 7/3/1990.
8. Omitted by Act No. 2 of 1948.
9. Second proviso omitted by Act No. 32 of 1951.
10. Inserted by Act No. 53 of 1987, w.e.f. 9/7/1988.
11. Inserted by Act No. 26 of 2006 w.e.f. 12-6-2006.
12. Inserted by Act No. 26 of 2006 w.e.f. 12-6-2006.
When, in the opinion of the Bank, a special occasion has arisen making it necessary or expedient that action should be taken under this section for the purpose of regulating credit in the interests of Indian trade, commerce, industry and agricultural, the Bank may, notwithstanding any limitation contained in section 17: -
(1) Purchase, sell or discount any bill of exchange or promissory note though such bill or promissory note is not eligible for purchase or discount by the Bank under that section; or
(2) 1[***]
(3) Make loans or advances to-
(a) A State Co-operative bank; or
(b) On the recommendation of a State co-operative bank, to a co-operative society registered within the area in which the State co-operative bank operates; or
(c) Any other person,
Repayable on demand or on the expiry of the fixed periods, not exceeding ninety days, on such terms and conditions as the Bank may consider to be sufficient.
——————–
1. Clause (2) omitted Act No. 24 of 1978.
Section 18 A. Validity of loan or advance not to be questioned
Notwithstanding anything to the contrary contained in any other law for the time being in force-
(a) The validity of any loan or advance granted by the Bank in pursuance of the provisions of this Act shall not be called in question merely on the ground of non-compliance with the requirements of such other law as aforesaid or of any resolution, contract, memorandum, and articles of association or other instrument:
PROVIDED that nothing in this clause shall render valid any loan or advance obtained by any company or co-operative society where such company or co-operative society is not empowered by its memorandum to obtain loans or advances;
(b) Where a loan or advance has been granted under clause (3A) or under clause (3B) of section 17 or a loan or advance granted under clause (3) of section 18 by the Bank to any person has been applied by such person, wholly or in part, in making a loan or advance to any borrower, any sum received-
(i) By the borrowing bank on account of bills of exchange in respect of which the declaration under clause (i) of the proviso to clause (3A) of section 17 has been furnished or in repayment or realisation of the outstanding loans and advances referred to in clause (ii) of the said proviso or in the proviso to clause (3B) of the said section, or
(ii) By the borrowing bank or any other person in repayment or realisation of loans and advances granted to a borrower out of funds obtained by it or by him from the Bank under section 18,
Shall be utilised only for the repayment by the borrowing bank or other person, as the case may be, of the amounts due to be repaid by it or by him to the Bank, and shall be held by it or by him in trust for the Bank, until such time as the amounts are so repaid.
Save as otherwise provided in sections 17,18, 42 and 45, the bank may not-
(1) Engage in trade or otherwise have a direct interest in any commercial, industrial, or other undertaking except such interest as it may in any way acquire in the course of the satisfaction of any of its claims:
PROVIDED that all such interests shall be disposed of at the earliest possible moment;
(2) Purchase the shares of any banking company or of any other company, or grant loans upon the security of any such shares;
(3) Advance money on mortgage of, or otherwise on the security of, immovable property or documents of title relating thereto, or become the owner of immovable property, except so far as is necessary for its own business premises and residences for its officers and servants;
(4) Make loans or advances;
(5) Draw or accept bills payable otherwise than on demand;
(6) Allow interest on deposits or current amounts.
Reserve Bank of India Act, 1934
The Bank shall undertake to accept monies for account of the Central Government and to make payments up to the amount standing to the credit of its account, and to carry out its exchange, remittance and other banking operations, including the management of the public debt of the Union.
(1) The Central Government shall entrust the Bank, on such conditions as may be agreed upon, with all its money, remittance, exchange and banking transactions in India, and, in particular, shall deposit free of interest all its cash balances with the Bank:
PROVIDED that nothing in this sub-section shall prevent the Central Government from carrying on money transactions at places where the Bank has no branches or agencies, and the Central Government may hold at such places such balances as it may require.
(2) The Central Government shall entrust the Bank, on such conditions as may be agreed upon, with the management of the public debt and with the issue of any new loans.
(3) In the event of any failure to reach agreement on the conditions referred to in this section the Central Government shall decide what the conditions shall be.
(4) Any agreement made under this section shall be laid, as soon as may be after it is made, before Parliament. 1[***]
——————–
1. Clause (5) omitted by Act No. 24 of 1978.
(1) The Central Government shall entrust the Bank, on such conditions as may be agreed upon, with all its money, remittance, exchange and banking transactions in India, and, in particular, shall deposit free of interest all its cash balances with the Bank:
PROVIDED that nothing in this sub-section shall prevent the Central Government from carrying on money transactions at places where the Bank has no branches or agencies, and the Central Government may hold at such places such balances as it may require.
(2) The Central Government shall entrust the Bank, on such conditions as may be agreed upon, with the management of the public debt and with the issue of any new loans.
(3) In the event of any failure to reach agreement on the conditions referred to in this section the Central Government shall decide what the conditions shall be.
(4) Any agreement made under this section shall be laid, as soon as may be after it is made, before Parliament. 1[***]
——————–
1. Clause (5) omitted by Act No. 24 of 1978.
(1) The Bank may by agreement with the government of any state undertake-
(a) All its money, remittance, exchange and banking transactions in India, including in particular, the deposit, free of interest, of all its cash balances with the Bank; and
(b) The management of the public debt of, and the issue of any new loans by, that State.
(2) Any agreement made under this section shall be laid, as soon as may be after it is made, before Parliament.
Section 21 B. Effect of agreements made between the Bank and certain States before the 1st November, 1956
(1) Any agreement made under section 21 or section 21A between the Bank and the government of a State specified in the Explanation below and in force immediately before the lst day of November, 1956, shall, as from that day have effect as if it were an agreement made on that day under section 21A between the Bank and the government of the corresponding State subject to such modifications, if and being of a character not affecting the general operation of the agreement, as may be agreed upon between the Bank and the government of the corresponding State, or in default of such agreement, as may be made therein by order of the Central Government.
Explanation: In this sub-section “corresponding State” means: -
(a) In relation to the agreement between the Bank and the State of Andhra, the State of Andhra Pradesh;
(b) In relation to the agreement between the Bank and any other Part A State as it existed before the 1st day of November, 1956, the State with the same name; and
(c) In relation to the agreement between the Bank and the Part B State of Mysore or Travancore-Cochin as it existed before the 1st day of November, 1956, the State of Mysore or Kerala respectively.
(2) Any agreement made under section 21A between the Bank and the government of the part B State of Hyderabad, Madhya Bharat or Saurashtra shall be deemed to have terminated on the 31st day of October, 1956.
(1) The bank shall have the sole right to issue bank notes in India, and may, for a period which shall be fixed by the Central Government on the recommendation of the Central Board, issue currency notes of the Government of India supplied to it by the Central Government, and the provisions of this Act applicable to bank notes shall, unless a contrary intention appears, apply to all currency notes of the Government of India issued either by the Central Government or by the Bank in like manner as if such currency notes were bank notes, and references in this Act to bank notes shall be construed accordingly.
(2) On and from the date on which this chapter comes into force the Central Government shall not issue any currency notes.
(1) The issue of bank notes shall be conducted by the Bank in an issue department which shall be separated and kept wholly distinct from the banking department, and the assets of the issue department shall not be subject to any liability other than the liabilities of the issue department as hereinafter defined in section 34.
(2) The issue department shall not issue bank notes to the banking department or to any other person except in exchange for other bank notes or for such coin, bullion or securities as are permitted by this Act to form part of the Reserve.
1[***]
——————–
1. Sub-section (3) omitted by Act No. 24 of 1978.
Reserve Bank of India Act, 1934
(1) Subject to the provisions of sub-section (2), bank notes shall be of the denominational values of two rupees, five rupees, ten rupees, twenty rupees, fifty rupees, one hundred rupees, five hundred rupees, one thousand rupees, five thousand rupees and ten thousand rupees or of such other denominational values, not exceeding ten thousand rupees, as the Central Government may, on the recommendation of the Central Board, specify in this behalf.
(2) The Central Government may, on the recommendation of the Central Board, direct the non-issue or the discontinuance of issue of bank notes of such denominational values as it may specify in this behalf.
The design, form and material of bank notes shall be such as may be approved by the Central Government after consideration of the recommendations made by the Central Board.
(1) Subject to the provisions of sub-section (2), every bank note shall be legal tender at any place in India in payment or on account for the amount expressed therein, and shall be guaranteed by the Central Government.
(2) On recommendation of the Central Board the Central Government may, by notification in the Gazette of India, declare that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender save at such office or agency of the Bank and to such extent as may be specified in the notification.
Section 26 A. Certain bank notes to cease to be legal tender
Notwithstanding anything contained in section 26, no bank note of the denominational value of five hundred rupees, one thousand rupees or ten thousand rupees issued before the 13th day of January, 1946, shall be legal tender in payment or on account for the amount expressed therein.
The Bank shall not re-issue bank notes, which are torn, defaced or excessively spoiled.
Notwithstanding anything contained in any enactment or rule of law to the contrary, no person shall of right be entitled to recover from the Central Government or the Bank, the value of any lost, stolen, mutilated or imperfect currency note of the Government of India or bank note:
PROVIDED that the Bank may, with the previous sanction of the Central Government, prescribe the circumstances in and the conditions and limitations subject to which the value of such currency notes or bank notes may be refunded as of grace and the rules made under this proviso shall be laid on the table of Parliament. 1[***]
——————–
1. Omitted by Act No. 24 of 1978.
(1) For the purpose of controlling the circulation of bank notes without India, the Bank may, notwithstanding anything contained in any other provision of this Act, issue bank notes of such design, form and material as may be approved under sub-section (3) (hereinafter in this section referred to as special bank notes) of the denominational values of five rupees, ten rupees and one hundred rupees.
(2) For the purpose of controlling the circulation of Government of India one rupee notes without India, the Central Government may, notwithstanding anything contained in any other provision of this Act or in the Currency Ordinance, 1940 (Ordinance 4 of 1940), issue Government of India notes of the denominational value of one rupee of such design, form and material as may be adopted under sub-section (3) (hereinafter in this section referred to as special one rupee notes).
(3) The design, form and material of the special bank notes shall be such as may be approved by the Central Government after consideration of the recommendations made by the Governor and of the special one rupee notes shall be such as the Central Government may think fit to adopt.
(4) Neither the special bank notes nor the special one rupee notes shall be legal tender in India.
(5) The special one rupee note shall be deemed to be included in the expression “rupee coin” for all the purposes of this Act except section 39, but shall be deemed not to be a currency note for any of the purposes of this Act.
(6) Where a special bank note is on its face expressed to be payable at a specified office or branch of the Bank, obligation imposed by section 39 shall be only on the specified office or branch and, further, shall be subject to such regulations as may be made under this section.
(7) The Bank may, with the previous sanction of the Central Government make regulations to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of this section, and, in particular, the manner in which, and the conditions or limitations subject to which-
(i) Bank notes and one rupee notes in circulation in any country outside India may be replaced by special notes issued under this section;
(ii) Any such special notes may be exchanged for any other bank notes or one rupee notes.
The Bank shall not be liable to the payment of any stamp duty under the Indian Stamp Act, 1899 (2 of 1899), in respect of bank notes issued by it.
(1) If in the opinion of the Central Government the Bank fails to carry out any of the obligations imposed on it by or under this Act the Central Government may, by notification in the Gazette of India, declare the Central Board to be superseded, and thereafter the general superintendence and direction of the affairs of the Bank shall be entrusted to such agency at the Central Government may determine, and such agency may exercise the powers and do all acts and things which may be exercised or done by the Central Board under this Act.
(2) When action is taken under this section the Central Government shall cause a full report of the circumstances leading to such action and of the action taken to be laid before Parliament at the earliest possible opportunity and in any case within three months from the issue of the notification superseding the Board.
(1) No person in India other than the Bank, or, as expressly authorised by this Act the Central Government shall draw, accept, make or issue any bill of exchange, hundi, promissory note or engagement for the payment of money payable to bearer on demand, or borrow, owe or take up any sum or sums of money on the bills, hundis or notes payable to bearer on demand of any such person:
PROVIDED that cheques or drafts, including hundis, payable to bearer on demand or otherwise may be drawn on a person’s account with a banker, shroff or agent.
(2) Notwithstanding anything contained in the Negotiable Instrument Act, 1881 (26 of 1881), no person in India other than the Bank or, as expressly authorised by this Act, the Central Government shall make or issue any promissory note expressed to be payable to the bearer of the instrument.
[Section 32 repealed by the Reserve Bank of India (Amendment) Act, 1974]
(1) The assets of the issue department shall consist of gold coin, gold bullion, foreign securities, rupee coin and rupee securities to such aggregate amount as is not less than the total of the liabilities of the issue department as hereinafter defined.
(2) The aggregate value of the gold coin, gold bullion and foreign securities held as assets and the aggregate value of the gold coin and gold bullion so held shall not at any time be less than two hundred crores of rupees and one hundred and fifteen crores of rupees, respectively.
1[(3) The remainder of the assets shall be held in rupee coin, Government of India rupee securities of any maturity, promissory notes drawn by the National Bank for any loans or advances under clause (4E) of section 17 and such bills of exchange and promissory notes payable in India as are eligible for purchase by the Bank under sub-clause (a) or sub-clause (b) or sub-clause (bb) of clause (2) of section 17 or under clause (1) of section 18.]
(4) For the purposes of this section, gold coin and gold bullion shall be valued at 2[a price not exceeding the international market price for the time being obtaining,] rupee coin shall be valued at its face value, and securities shall be valued at rates not exceeding the market rates for the time being obtaining.
(5) Of the gold coin and gold bullion held as assets, not less than seventeen-twentieths shall be held in India, and all gold coin and gold bullion held as assets shall be held in the custody of the Bank or its agencies:
PROVIDED that gold belonging to the Bank which is in any other bank or in any mint or treasury or in transit may be reckoned as part of the assets.
(6) For the purposes of this section, the foreign securities which may be held as part of the assets shall be-
(i) Securities of the following kinds payable in the currency of any foreign country which is a member of the International Monetary Fund, namely: -
(a) Balances with the bank which is the principal currency authority of that foreign country and any other balances or securities in foreign
Currency maintained with or issued by the International Monetary Fund, the International Bank for Reconstruction and Development, the International Development Association or the International Finance Corporation or Asian Development Bank or the Bank for International Settlements or any banking or financial institution 3[approved] by the Central Government in this behalf, provided that they are repayable within a period of ten years;
(b) Bills of exchange bearing two or more good signatures and drawn on and payable at any place in that foreign country and having a maturity not exceeding ninety days; and (c) Government securities of that foreign country maturing within ten years;
(ii) Any drawing rights representing a liability of the International Monetary Fund.
——————–
1. Substituted for the figures and words “0.118489 grammes of fine gold per rupee” by Act No. 8 of 1991, w.r.e.f. 15/10/1990.
2. Substituted by Act No. 1 of 1984, w.e.f. 15/2/1984.
3. Substituted by Act No. 61 of 1981, w.e.f. 1/5/1982.
(1) The liabilities of the issue department shall be an amount equal to the total of the amount of the currency notes of the Government of India and bank notes for the time being in circulation. 1[***]
——————–
1. Sub-sections (2) & (3) omitted.
[Section 35 repealed by Act No. 62 of 1948, w.e.f. 1st. January, 1949]
[Section 36 repealed by Act No. 55 of 1963, w.e.f. 1st. February, 1964]
Notwithstanding anything contained in the foregoing provisions, the Bank may, with the previous sanction of the Central Government, for periods not exceeding six months in the first instance, which may, with the like sanction, be extended from time to time by periods not exceeding three months at a time, hold as assets foreign securities of less amount in value than that required by sub-section (2) of section 33.
The Central Government shall undertake not to put into circulation any rupees, except through the Bank, and Bank shall undertake not to dispose of rupee coin otherwise than for the purposes of circulation.
(1) The Bank shall issue rupee coin on demand in exchange for bank notes and currency notes of the Government of India, and shall issue currency notes or bank notes on demand in exchange for coin which is legal tender under the Indian Coinage Act, 1906 (3 of 1906).
(2) The Bank shall, in exchange for currency notes or bank notes of two rupees or upwards, supply currency notes or bank notes of lower value or other coins which are legal tender under the Indian Coinage Act, 1906 (3 of 1906), in such quantities as may, in the opinion of the Bank, be required for circulation; and the Central Government shall supply such coins to the Bank on demand. If the Central Government at any time fails to supply such coins, the Bank shall be released from its obligations to supply them to the public.
2[Transactions in foreign exchange. The Bank shall sell to or buy from any authorised person who makes a demand in that behalf at its office in Bombay, Calcutta, Delhi or Madras or at such of its branches as the Central Government may, by order, determine, foreign exchange at such rates of exchange and on such conditions as the Central Government may from time to time by general or special order determine, having regard so far as rates of exchange are concerned to its obligations to the International Monetary Fund:
PROVIDED that no person shall be entitled to demand to buy or sell foreign exchange of a value less than two lakhs of rupees.
Explanation: In this section “authorised person” means a person who is entitled by or under the Foreign Exchange Regulation Act, 1[1973 (46 of 1973)] to buy, or as the case may be, sell, the foreign exchange to which his demand relates.]
——————–
1. Substituted by Act No. 1 of 1984, w.e.f. 15/2/1984.
2. Substituted for sections 40 and 41 by Act No. 23 of 1947.
[Section 41A. Obligation to provide remittance between India and Burma: repealed by Act No. 11 of 1947, w.e.f. 1st. April, 1947]
(1) Every bank included in Scheduled II shall maintain with the Bank an average daily balance the amount of which shall not be less than 11[such per cent of the total of the demand and time liabilities in India of such bank as shown in the return referred to in sub-section (2), as the Bank may from time to time, having regard to the needs of securing the monetary stability in the country, notify in the Gazette of India]
PROVIDED that the Bank may, by notification in the Gazette of India, increase the said rate to such higher rate as may be specified in the notification so however that the rate shall not be more than 1[twenty per cent] of the total of the demand and time liabilities.
Explanation: For the purposes of this section-
(a) “Average daily balance” shall mean the average of the balances held at the close of business on each day of a 2[fortnight;]
2[(b) “Fortnight” shall mean the period from Saturday to the second following Friday, both days inclusive;]
(c) “Liabilities” shall not include-
(i) The paid-up capital or the reserves or any credit balance in the profit and loss account of the bank;
(ii) The amount of any loan taken from the bank or from the Development Bank 5[or from the Exim Bank] 7[or from the Reconstruction Bank] 6[or from the National Housing Bank] or from the 10[National Bank] 8[or from the Small Industries Bank;]
(iii) In the case of a State co-operative bank, also any loan taken by such bank from a State Government 3[or from the National Co-operative Development Corporation established under the National Co-operative Development Corporation Act, 1962 (26 of 1962)] and any deposit of money with such bank representing the reserve fund or any part thereof maintained with it by any co-operative society within its area of operation;
(iv) In the case of a State co-operative bank, which has granted an advance against any balance maintained with it, such balance to the extent of the amount outstanding in respect of such advance;
3[(v) In the case of a Regional Rural Bank, also any loan taken by such bank from its Sponsor Bank;
(d) The aggregate of the “liabilities” of a scheduled bank, which is not a State co-operative bank, to-
(i) The State Bank;
(ii) A subsidiary bank as defined in section 2 of the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959);
(iii) A corresponding new bank constituted by section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970);
3[(iiia) A corresponding new bank constituted by section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980);]
(iv) A banking company as defined in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949);
(v) A co-operative Bank; or
(vi) Any other financial institution notified by the Central Government in this behalf.
Shall be reduced by the aggregate of the liabilities of all such banks and institutions to the scheduled bank;
(e) The aggregate of the “liabilities” of a scheduled bank, which is a State co-operative bank, to-
(i) The State Bank;
(ii) A subsidiary bank as defined in section 2 of the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959);
(iii) A corresponding new bank constituted by section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970);
3[(iiia) A corresponding new bank constituted by section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980);
(iv) A banking company as defined in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949); or . (v) Any other financial institution notified by the Central Government in this behalf,
Shall be reduced by the aggregate of the liabilities of all such banks and institutions to the State co-operative bank.
(1A) Notwithstanding anything contained in sub-section (1), the bank may, by notification in the Gazette of India, direct that every scheduled bank shall, with effect from such date as may be specified in the notification, maintain with the bank, in addition to the balance prescribed by or under sub-section (1), an additional average daily balance the amount of which shall not be less than the rate specified in the notification, such additional balance being calculated with reference to the excess of the total of the demand and time liabilities of the bank as shows in the return referred to in sub-section (2) over the total of its demand and time liabilities at the close of business on the date specified in the notification as shown by such return so however, that the additional balance shall, in no case, be more than such excess:
3[PROVIDED that the bank may, by a separate notification in the Gazette of India, specify different dates in respect of a bank subsequently, included in the Schedule II.]
4[(1AA) ****]
4[(1B) *****]
3[(1C) The bank may, for the purposes of this section, specify from time to time with reference to any transaction or class of transactions that such transaction or transactions shall be regarded as liability in India of a scheduled bank, and if any question arises as to whether any transaction or class of transactions shall be regarded, for the purposes of this section, as liability in India of a scheduled bank, the decision of the Bank thereon shall be final.]
(2) Every scheduled bank shall send to the bank a return signed by two responsible officers of such bank showing-
(a) The amount of its demand and time liabilities and the amount of its borrowings from banks in India, classifying them into demand and time liabilities,
(b) The total amount of legal tender notes and coins held by it in India,
(c) The balance held by it at the Bank in India,
(d) The balances held by it at other banks in current account and the money at call and short notice in India,
(e) The investments (at book value) in Central and State Government securities including treasury bills and treasury deposit receipts,
(f) The amount of advances in India,
(g) The inland bills purchased and discounted in India and foreign bills purchased and discounted,
2[At the close of business on each alternate Friday, and every such return shall be sent not later than seven days after the date to which it relates:]
PROVIDED that the bank may, by notification in the Gazette of India, delete or modify or add to any of the particulars specified in the foregoing clauses:
PROVIDED FURTHER that where 3[such alternate] Friday is a public holiday under the Negotiable Instruments Act, 1881 (26 of 1881), for one or more offices of a scheduled bank, the return shall give the preceding working day’s figures in respect of such office or offices, but shall nevertheless be deemed to relate to that Friday:
2[PROVIDED ALSO that where the bank is satisfied that the furnishing of a fortnightly return under his sub-section is impracticable in the case of any scheduled bank by reason of the geographical position of the bank and its branches, the Bank may allow such bank-
(i) To furnish a provisional return for the fortnight within the period aforesaid to be followed by a final return not later than twenty days after the date to which it relates, or
(ii) To furnish in lieu of a fortnightly return a monthly return to be sent not later than twenty days after the end of the month to which it relates giving the details specified in this sub-section in respect of such bank at the close of business for the month.]
3[(2A) Where the last Friday of a month is not an alternate Friday for the purpose of sub-section (2), every scheduled bank shall send to the bank, a special return giving the details specified in sub-section (2) as at the close of business on such last Friday or where such last Friday is a public holiday under the Negotiable Instruments Act, 1881 (26 of 1881), as at the close of business on the preceding working day and such return shall be sent not later than seven days after the date to which it relates.]
(3) If the average daily balance held at the bank by a scheduled bank during any 2[fortnight] is below the minimum prescribed by or under sub-section (1) or sub-section (1A), such scheduled bank shall be liable to pay to the bank in respect of that 2[fortnight] penal interest at a rate of three per cent above the bank rate on the amount by which such balance with the bank falls short of the prescribed minimum, and if during the next succeeding 2[fortnight] such average daily balance is still below the prescribed minimum, the rates of penal interest shall be increased to a rate of five per cent above the bank rate in respect of that 2[fortnight] and each subsequent 2[fortnight] during which the default continues on the amount by which such balance at the bank falls short of the prescribed minimum.
(3A) Where under the provisions of sub-section (3) penal interest at the increased rate of five per cent above the bank rate has become payable by a scheduled bank, if thereafter the average daily balance held at the Bank during the next succeeding 2[fortnight] is still below the prescribed minimum: -
(a) Every director, manager or secretary of the scheduled bank, who is knowingly and wilfully a party to the default, shall be punishable with fine which may extend to five hundred rupees and with a further fine which may extend to five hundred rupees for each subsequent 2[fortnight] during which the default continues, and
(b) The Bank may prohibit the scheduled bank from receiving after the said 2[fortnight] any fresh deposit,
And, if default is made by the scheduled bank in complying with the prohibition referred to in clause (b), every director and officer of the schedule bank who is knowingly and wilfully a party to such default or who through negligence or otherwise contributes to such default shall in respect of each such default be punishable with fine which may extend to five hundred rupees and with a further fine which may extend to five hundred rupees for each day after the first on which a deposit received in contravention of such prohibition is retained by the scheduled bank.
Explanation: In this sub-section “officer” includes a manager, secretary, branch manager, and branch secretary.
(4) Any scheduled bank failing to comply with the provisions of sub-section (2) shall be liable to pay to the Bank a penalty of one hundred rupees for each day during which the failure continues.
(5)
(a) The penalties imposed by sub-sections (3) and (4) shall be payable within a period of fourteen days from the date on which a notice issued by the Bank demanding the payment of the same is served by the scheduled bank, and in the event of failure of the scheduled bank to pay the same within such period, may be levied by a direction of the principal civil court having jurisdiction in the area where an office of the defaulting bank is situated, such direction to be made only upon an application made in this behalf to the court by the Bank;
(b) When the court makes a direction under clause (a), it shall issue a certificate specifying the sum payable by the scheduled bank and every such certificate shall be enforceable in the same manner as if it were a decree made by the court in a suit;
(c) Notwithstanding anything contained in this section, if the Bank is satisfied that the defaulting bank had sufficient cause for its failure to comply with the provisions of sub-sections (1), (1A) or (2), it may not demand the payment of the penal interest of the penalty, as the case may be.
(6) The Bank shall, save as hereinafter provided, by notification in the Gazette of India;
(a) Direct the inclusion in Schedule II of any bank not already so included which carries on the business of banking in India and which-
(i) Has a paid-up capital and reserves of an aggregate value of not less than five lakhs of rupees, and
(ii) Satisfies the Bank that its affairs are not being conducted in a manner detrimental to the interests of its depositors, and
(iii) Is a State co-operative bank or a company as defined in section 3 of the Companies Act, 1956 (1 of 1956), or an institution notified by the Central Government in this behalf or a corporation or a company incorporated by or under any law in force in any place outside India;
(b) Direct the exclusion from that Schedule of any scheduled bank: -
(i) The aggregate value of whose paid-up capital and reserves becomes at any time less than five lakhs of rupees, or
(ii) Which is, in the opinion of the Bank after making an inspection under section 35 of the Banking Regulation Act, 1949 (10 of 1949), conducting its affairs to the detriment of the interests of its depositors, or
(iii) Which goes into liquidation or otherwise ceases to carry on banking business:
PROVIDED that the Bank may, on application of the scheduled bank concerned and subject to such conditions, if any, as it may, impose, defer the making of a direction under sub-clause (i) or sub-clause (ii) of clause (b) for such period as the Bank considers reasonable to give the scheduled bank an opportunity of increasing the aggregate value of its paid-up capital and reserves to not less than five lakhs of rupees or, as the case may be, of removing the defects in the conduct of its affairs;
(c) Alter the description in that Schedule whenever any scheduled bank changes its name.
Explanation: In this sub-section the expression “value” means the real or exchangeable value and not the nominal value which may be shown in the books of the bank concerned; and if any dispute arises in computing the aggregate value of the paid-up capital and reserves of a bank, a determination thereof by the Bank shall be final for the purposes of this sub-section.
9[(6A) In considering whether a State co-operative bank or a regional rural bank should be included in or excluded from Schedule II, it shall be competent for the Bank to act on a certificate from the National Bank on the question whether or not a State co-operative bank or a regional rural bank, as the case may be, satisfies the requirements as to paid-up capital and reserves or whether its affairs are not being conducted in a manner detrimental to the interests of its depositors.]
(7) The Bank may, for such period and subject to such conditions as may be specified, grant to any scheduled bank such exemptions from the provisions of this section as it thinks fit with reference to all or any of its offices or with reference to the whole or any part of its assets and liabilities.
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1. Substituted by Act No. 9 of 1991, for the words “fifteen per cent”.
2. Substituted by Act No. 1 of 1984, w.e.f. 29/3/1985.
3. Inserted by Act No. 1 of 1984, w.e.f. 29/3/1985.
4. Sub-section (1-AA) and (1-B) Omitted by Act No. 26 of 2006 w.e.f. 12-6-2006.
5. Inserted by Act No. 28 of 1981, w.e.f. 1/1/1982.
6. Inserted by Act No. 53 of 1987, w.e.f. 9/7/1988.
7. Inserted by Act No. 62 of 1984, w.e.f. 20/3/1985.
8. Inserted by Act No. 39 of 1989, w.e.f. 7/3/1990.
9. Inserted by Act No. 61 of 1981, w.e.f. 1/5/1982.
10. Substituted by Act No. 61 of 1981, w.e.f. 1/5/1982.
11. Subs. by Act No. 26 of 2006 w.e.f. 12-6-2006.
The Bank shall cause to be published each 1[fortnight] a consolidated statement showing the aggregate liabilities and assets of all the scheduled banks together, based on the returns and information received under this Act or any other law for the time being in force.
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1. Substituted by Act No. 1 of 1984, w.e.f. 29/3/1985.
(1) No suit or other legal proceeding shall lie against the bank or any of its officers for anything which is in good faith done or intended to be done in pursuance of section 42 or section 43 or in pursuance of the provision of chapter IIIA.
(2) No suit or other legal proceeding shall lie against the bank or any of its officers for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of section 42 or section 43 or in pursuance of the provisions of chapter III-A.
[Section 44. Power to require returns from co-operative banks :repealed by the Banking Laws (Application to Co-operative Societies) Act, 1965, w.e.f. 1st. March 1966]
1[Appointment of agents. (1) Unless otherwise directed by the Central Government with reference to any place, the bank may, having regard to public interest, convenience of banking, banking development and such other factors which in its opinion are relevant in this regard, appoint the National Bank, or the State Bank, or a corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), or a corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980), or any subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959), as its agent at all places, or at any place in India for such purposes as the Bank may specify.
(2) When any bank is appointed by the bank as its agent under sub-section (1) to receive on behalf of the Bank any payment required to be made into the Bank, or any bill, hundies or other securities required to be delivered into the Bank, under any law or rule, regulations or other instructions having the force of law, the same may be paid or delivered into the bank so appointed as the agent of the bank.]
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1. Substituted by Act No. 61 of 1981, w.e.f. 1/5/1982.
In this chapter, unless the context otherwise requires: -
(a) “Banking company” means a banking company as defined in section 5 of the Banking Regulation Act, 1949 (10 of 1949), and includes the State Bank of India, any subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959), any corresponding new bank constituted by section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), and any other financial institution notified by the Central Government in this behalf;
(b) “Borrower” means any person to whom any credit limit has been sanctioned by any banking company, whether availed of or not, and includes-
(i) In the case of a company or corporation, as subsidiaries;
(ii) In the case of a Hindu undivided family, any member thereof or any firm in which such member is a partner;
(iii) In the case of a firm, any partner thereof or any other firm in which such partner is a partner; and
(iv) In the case of an individual, any firm in which such individual is a partner;
(c) “Credit information” means any information relating to-
(i) The amounts and the nature of loans or advances and other credit facilities granted by a banking company to any borrower or class of borrowers;
(ii) The nature of security taken from any borrower or class of borrowers for credit facilities granted to him or to such class;
(iii) The guarantee furnished by a banking company for any of its customers or any class of its customers;
(iv) The means, antecedents, history of financial transactions and the credit worthiness of any borrower or class of borrowers;
(v) Any other information which the Bank may consider to be relevant for the more orderly regulation of credit or credit policy.
The bank may-
(a) Collect, in such manner as it may think fit, credit information from banking companies; and
(b) Furnish such information to any banking company in accordance with the provisions of section 45D.
(1) For the purpose of enabling the bank to discharge its functions under this chapter, it may at any time direct any banking company to submit to it such statements relating to such credit information and in such form and within such time as may be specified by the Bank from time to time.
(2) A banking company shall, notwithstanding anything to the contrary contained in any law for time being in force or in any instrument regulating the constitution thereof or in any agreement executed by it, relating to the secrecy of its dealings with its constituents, be bound to comply with any direction issued under sub-section (1).
(1) A banking company may, in connection with any financial arrangement entered into or proposed to be entered into by it, with any person, make an application to the Bank in such form as the Bank may specify requesting it to furnish the applicant with such credit information as may be specified in the application.
(2) On receipt of an application under sub-section (1), the bank shall, as soon as may be, furnish the applicant with such credit information relating to the matters specified in the application, as may be in its possession:
PROVIDED that the information so furnished shall not disclose the names of the banking companies which have submitted such information to the Bank.
(3) The bank may in respect of each application levy such fees, not exceeding twenty-five rupees, as it may deem fit for furnishing credit information.
(1) Any credit information contained in any statement submitted by a banking company under section 45C or furnished by the bank to any banking company under section 45D, shall be treated as confidential and shall not, except for the purposes of this chapter, be published or otherwise disclosed.
(2) Nothing in this section shall apply to-
(a) The disclosure by any banking company, with the previous permission of the Bank, of any information furnished to the Bank under section 45C;
(b) The publication by the Bank, if it considers necessary in the public interest so to do, of any information collected by it under section 45C, in such consolidated form as it may think fit without disclosing the name of any banking company or its borrowers;
(c) The disclosure or publication by the banking company or by the bank of any credit information to any other banking company or in accordance with the practice and usage customary among bankers or as permitted or required under any other law:
1[(d) the disclosures of any credit information under the Credit Information Companies (Regulation) Act, 2005.]
PROVIDED that any credit information received by a banking company under this clause shall not be published except in accordance with the practice and usage customary among bankers or as permitted or required under any other law.
(3) Notwithstanding anything contained in any law for the time being in force, no court, tribunal or other authority shall compel the Bank or any banking company to produce or to give inspection of any statement submitted by that banking company under section 45C or to disclose any credit information furnished by the Bank to that banking company under section 45D.
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1. Clause (d) Inserted by Act No. 30 of 2005 w.e.f. 23-6-2005.
No person shall have any right, whether in contract or otherwise, to any compensation for any loss incurred by reason of the operation of any of the provisions of this chapter.
[Section 45G. Penalties: repealed by the Reserve Bank of India (Amendment) Act, 1974]
CHAPTER III-B
The provisions of this chapter shall not apply to the State Bank or banking company as defined in section 5 of the Banking Regulation Act, 1949 (10 of 1949) or 1[a corresponding new bank as defined in clause (da) of section 5 of that Act or a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959)] or a Regional Rural Bank or a co-operative bank or a primary agricultural credit society or a primary credit society:
PROVIDED that for the purposes of this chapter, the Tamil Nadu Industrial Investment Corporation Limited shall not be deemed to be a banking company.
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1. Substituted by Act No. 1 of 1984, w.e.f. 15/2/1984.
In this chapter, unless the context otherwise requires-
2[(a) “Business of a non-banking financial institution” means carrying on of the business of a financial institution referred to in clause (c) and includes business of a non-banking financial company referred to in clause (f);]
3[(aa)] “Company” means a company as defined in section 3 of the Companies Act, 1956 (1 of 1956) and includes a foreign company within the meaning of section 591 of that Act;
(b) “Corporation” means a corporation incorporated by an Act of any Legislature;
1[(bb) “Deposit” includes and shall be deemed always to have included any receipt of money by way of deposit or loan or in any other form, but does not include: -
(i) Amounts raised by way of share capital;
(ii) Amounts contributed as capital by partners of a firm;
(iii) Amounts received from a scheduled bank or a co-operative bank or any other banking company as defined in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949);
(iv) Any amount received from: -
(a) The Development Bank,
(b) A State Financial Corporation,
(c) Any financial institution specified in or under section 6A of the Industrial Development Bank of India Act, 1964 (18 of 1964), or
(d) Any other institution that may be specified by the Bank in this behalf;
(v) Amounts received in the ordinary course of business, by way of-
(a) Security deposit,
(b) Dealership deposit,
(c) Earnest money, or
(d) Advance against orders for goods, properties or services;
(vi) Any amount received from an individual or a firm or an association of individuals not being a body corporate, registered under any enactment relating to money lending which is for the time being in force in any State; and
(vii) Any amount received by way of subscriptions in respect of a chit.
Explanation I: “Chit” has the meaning assigned to it in clause (b) of section 2 of the Chit Funds Act, 1982 (40 of 1982).
Explanation II: Any credit given by a seller to a buyer on the sale of any property (whether movable or immovable) shall not be deemed to be deposit for the purposes of this clause;
(c) “Financial institution” means any non-banking institution which carries on as its business or part of its business any of the following activities, namely: -
(i) The financing, whether by way of making loans or advances or otherwise, of any activity other than its own;
(ii) The acquisition of shares, stock, bonds, debentures or securities issued by a government or local authority or other marketable securities of a like nature;
(iii) Letting or delivering of any goods to a hirer under a hire-purchase agreement as defined in clause (c) of section 2 of the Hire-Purchase Act, 1972 (26 of 1972);
(iv) The carrying on of any class of insurance business;
(v) Managing, conducting or supervising, as foreman, agent or in any other capacity, of chits or kuries as defined in any law which is for the time being in force in any State, or any business, which is similar thereto;
(vi) Collecting, for any purpose or under any scheme or arrangement by whatever name called monies in lump sum or otherwise, by way of subscriptions or by sale of units, or other instruments or in any other manner and awarding prizes or gifts, whether in cash or kind, or disbursing monies in any other way, to persons from whom monies are collected or to any other person,
4[But does not include any institution, which carries on as its principal business: -
(a) Agricultural operations; or
(aa) Industrial activity; or;]
(b) The purchase or sale of any goods (other than securities) or the providing of any services; or
(c) The purchase, construction or sale of immovable property, so, however, that no portion of the income of the institution is derived from the financing of purchases, constructions or sales of immovable property by other persons;
2[Explanation : For the purposes of this clause, “industrial activity” means any activity specified in sub-clauses (i) to (xviii) of clause (c) of section 2 of the Industrial Development Bank of India Act, 1964 (18 of 1964)];
(d) “Firm” means a firm as defined in the Indian Partnership Act, 1932 (9 of 1932);
(e) “Non-banking institution” means a company, corporation or co-operative society.
2[(f) “non-banking financial company” means-
(i) A financial institution which is a company;
(ii) A non banking institution which is a company and which has as its principal business the receiving of deposits, under any scheme or arrangement or in any other manner, or lending Tiny manner;
(iii) Such other non-banking institution or class of such institutions, as the bank may, with the previous approval of the Central Government and by notification in the Official Gazette, specify.]
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1. Substituted by Act No. 1 of 1984, w.e.f. 15/2/1984.
2. Inserted by Reserve Bank of India (Amendment) Act, 1997, w.r.e.f. 9/1/1997.
3. Earlier clause (a) renumbered to (aa) by Reserve Bank of India (Amendment) Act, 1997, w.e.f. 9/1/1997.
4. Substituted by Reserve Bank of India (Amendment) Act, 1997, w.e.f. 9/1/1997.
1[Requirement of registration and net owned fund. (1) Notwithstanding anything contained in this Chapter or in any other law for the time being in force, no non-banking financial company shall commence or carry on the business of a non-banking financial institution without-
(a) Obtaining a certificate of registration issued under this Chapter; and
(b) Having the net owned fund of twenty five lakh rupees or such other amount, not exceeding two hundred lakhs, as the bank may, be notification in the Official Gazette, specify.
(2) Every non-banking financial company shall make an application for registration to the bank in such form as the bank may specify:
PROVIDED that a non-banking financial company in existence on the commencement of the Reserve Bank of India (Amendment) Act, 1997 shall make an application for registration to the bank before the expiry of six months from such commencement and notwithstanding anything contained in sub-section (1) may continue to carry on the business of a non-banking financial institution until a certificate of registration is issued to it or rejection of application for registration is communicated to it.
(3) Notwithstanding anything contained in sub-section (1), a non-banking financial company in existence on the commencement of the Reserve Bank of India (Amendment) Act, 1997 and having a net owned fund of less than twenty five lakh rupees may, for the purpose of enabling such company to fulfil the requirement of the net owned fund, continue to carry on the business of a non-banking financial institution-
(i) For a period of three years from such commencement; or
(ii) For such further period as the bank may, after recording the reasons in writing for so doing, extend, subject to the condition that such company shall, within three months of fulfilling the requirement of the net owned fund, inform the bank about such fulfilment:
PROVIDED that the period allowed to continue business under this sub-section shall in no case exceed six years in the aggregate.
(4) The bank may, for the purpose of considering the application for registration, require to be satisfied by an inspection of the books of the non-banking financial company or otherwise that the following conditions are fulfilled: -
(a) That the non-banking financial company is or shall be in a position to pay its present or future depositors in full as and when their claims accrue;
(b) That the affairs of the non-banking financial company are not being or are not likely to be conducted in a manner detrimental to the interest of its present or future depositors;
(c) That the general character of the management or the proposed management of the non-banking financial company shall not be prejudicial to the public interest or the interests of its depositors;
(d) That the non-banking financial company has adequate capital structure and earning prospects;
(e) That the public interest shall be served by the grant of certificate of registration to the non-banking financial company to commence or to carry on the business in India;
(f) That the grant of certificate of registration shall not be prejudicial to the operation and consolidation of the financial sector consistent with monetary stability and economic growth considering such other relevant factors which the bank may, by notification in the Official Gazette, specify; and
(g) Any other condition, fulfilment of which in the opinion of the bank, shall be necessary to ensure that the commencement of or carrying on of the business in India by a non-banking financial company shall not be prejudicial to the public interest or in the interest of the depositors.
(5) The bank may, after being satisfied that the conditions specified in sub-section (4) are fulfilled, grant a certificate of registration subject to such conditions which it may consider fit to impose.
(6) The bank may cancel a certificate of registration granted to a non-banking financial company under this section if such company-
(i) Ceases to carry on the business of a non-banking financial institution in India; or
(ii) Has failed to comply with any condition subject to which the certificate of registration had been issued to it; or
(iii) At any time fails to fulfil any of the conditions referred to in clauses (a) to (g) of sub-section (4); or
(iv) Fails-
(a) To comply with any direction issued by the bank under the provisions of this Chapter; or
(b) To maintain accounts in accordance with the requirements of any law or any direction or order issued by the bank under the provisions of this Chapter; or
(c) To submit or offer for inspection its books of accounts and other relevant documents when so demanded by an inspecting authority of the bank; or
(v) Has been prohibited from accepting deposit by an order made by the bank under the provisions of this Chapter and such order has been in force for a period of not less than three months:
PROVIDED that before cancelling a certificate of registration on the ground that the non-banking financial company has failed to comply with the provisions of clause (ii) or has failed to fulfil any of the conditions referred to in clause (iii) the bank, unless it is of the opinion that the delay in cancelling the certificate of registration shall be prejudicial to public interest or the interest of the depositors or the non-banking financial company, shall give an opportunity to such company on such terms as the bank may specify for taking necessary steps to comply with such provisions or fulfilment of such condition:
PROVIDED FURTHER that before making any order of cancellation of certificate of registration, such company shall be given a reasonable opportunity of being heard.
(7) A company aggrieved by the order of rejection of application for registration or cancellation of certificate of registration may prefer an appeal, within a period of thirty days from the date on which such order of rejection or cancellation is communicated to it, to the Central Government and the decision of the Central Government where an appeal has been preferred to it, or of the bank where no appeal has been preferred, shall be final:
PROVIDED that before making any order of rejection of appeal, such company shall be given a reasonable opportunity of being heard.
Explanation: For the purposes of this section-
(I) “Net owned fund” means-
(a) The aggregate of the paid-up equity capital and free reserves as disclosed in the latest balance sheet of the company after deducting therefrom-
(i) Accumulated balance of loss;
(ii) Deferred revenue expenditure; and
(iii) Other intangible assets; and
(b) Further reduced by the amounts representing-
(1) Investments of such company in shares of-
(i) Its subsidiaries;
(ii) Companies in the same group;
(iii) All other non-banking financial companies; and
(2) The book value of debentures, bonds, outstanding loans and advances (including hire-purchase and lease finance) made to, and deposits with-
(i) Subsidiaries of such company; and
(ii) Companies in the same group,
To the extent such amount exceeds ten per cent, of (a) above.
(II) “Subsidiaries” and “companies in the same group” shall have the same meanings assigned to them in the Companies Act, 1956 (1 of 1956).]
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1. Inserted by Reserve Bank of India (Amendment) Act, 1997, w.r.e.f. 9/1/1997.
1Maintenance of percentage of assets. (1) Every non-banking financial company shall invest and continue to invest in India in unencumbered approved securities, valued at a price not exceeding the current market price of such securities, an amount which, at the close of business on any day, shall not be less than five per cent or such higher percentage not exceeding twenty five per cent, as the bank may, from time to time and by notification in the Official Gazette, specify, of the deposits outstanding at the close of business on the last working day of the second preceding quarter:
PROVIDED that the bank may specify different percentages of investment in respect of different classes of non-banking financial companies.
(2) For the purpose of ensuring compliance with the provisions of this section, the bank may require every non-banking financial company to furnish a return to it in such form, in such manner and for such period as may be specified by the bank.
(3) If the amount invested by a non-banking financial company at the close of business on any day falls below the rate specified under sub-section (1), such company shall be liable to pay to the bank, in respect of such shortfall, a penal interest at a rate of three per cent per annum above the bank rate on such amount by which the amount actually invested falls short of the specified percentage, and where the shortfall continues in the subsequent quarters, the rate of penal interest shall be five per cent per annum above the bank rate on such shortfall for each subsequent quarter.
(4)
(a) The penal interest payable under sub-section (3) shall be payable within a period of fourteen days from the date on which a notice issued by the bank demanding payment of the same is served on the non-banking financial company and, in the event of a failure of the non-banking financial company to pay the same within such period, penalty may be levied by a direction of the principal civil court having jurisdiction in the area where an office of the defaulting non-banking financial company is situated and such direction shall be made only upon an application made in this behalf to the court by the bank; and
(b) When the court makes a direction under clause (a), it shall issue a certificate specifying the sum payable by the non-banking financial company and every such certificate shall be enforceable in the same manner as if it were a decree made by the court in a suit.
(5) Notwithstanding anything contained in this section, if the bank is satisfied that the defaulting non-banking financial company had sufficient cause for its failure to comply with the provisions of sub-section (1), it may not demand the payment of the penal interest.
Explanation: For the purposes of this section: -
(i) “Approved securities” means securities of any State Government or of the Central Government and such bonds, both the principal whereof and the interest whereon shall have been fully and unconditionally guaranteed by any such government;
(ii) “Unencumbered approved securities” includes the approved securities lodged by the non-banking financial company with another institution for an advance or any other arrangement to the extent to which such securities have not been drawn against or availed of or encumbered in any manner;
(iii) “Quarter” means the period of three months, ending on the last day of March, June, September or December.
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1. Inserted by Reserve Bank of India (Amendment) Act, 1997, w.r.e.f. 9/1/1997.
(1) Every non-banking financial company shall create a reserve fund and transfer therein a sum not less than twenty per cent of its net profit every year as disclosed in the profit and loss account and before any dividend is declared.
(2) No appropriation of any sum from the reserve fund shall be made by the non-banking financial company except for the purpose as may be specified by the bank from time to time and every such appropriation shall be reported to the bank within twenty-one days from the date of such withdrawal:
PROVIDED that the bank may, in any particular case and for sufficient cause being shown, extend the period of twenty-one days by such further period as it thinks fit or condone any delay in making such report.
(3) Notwithstanding anything contained in sub-section (1), the Central Government may, on the recommendation of the bank and having regard to the adequacy of the paid-up capital and reserves of a non-banking financial company in relation to its deposit liabilities, declare by order in writing that the provisions of sub-section (1) shall not be applicable to the non-banking financial company for such period as may be specified in the order:
PROVIDED that no such order shall be made unless the amount in the reserve fund under sub-section (1) together with the amount in the share premium account is not less than the paid-up capital of the non-banking financial company.]
Bank to regulate or prohibit issue of prospectus or advertisement soliciting deposits of money.
]
The bank may, if it considers necessary in the public interest so to do, by general or special order-
(a) Regulate or prohibit the issue by any non-banking institution of any prospectus or advertisement soliciting deposits of money from the public; and
(b) Specify the conditions subject to which any such prospectus or advertisement, if not prohibited, may be issued.
1[Power of bank to determine policy and issue directions. (1) If the bank is satisfied that, in the public interest or to regulate the financial system of the country to its advantage or to prevent the affairs of any non-banking financial company being conducted in a manner detrimental to the interest of the depositors or in a manner prejudicial to the interest of the non-banking financial company, it is necessary or expedient so to do, it may determine the policy and give directions to all or any of the non-banking financial companies relating to income recognition, accounting standards, making of proper provision for bad and doubtful debts, capital adequacy based on risk weights for assets and credit conversion factors for off balance-sheet items and also relating to deployment of funds by a non-banking financial company or a class of non-banking financial companies or non-banking financial companies generally, as the case may be, and such non-banking financial companies shall be bound to follow the policy so determined and the directions so issued.
(2) Without prejudice to the generality of the powers vested under sub-section (1), the bank may give directions to non-banking financial companies generally or to a class of non-banking financial companies or to any non-banking financial company in particular as to-
(a) The purpose for which advances or other fund based or non-fund based accommodation may not be made; and . (b) The maximum amount of advances or other financial accommodation or investment in shares and other securities which, having regard to the paid-up capital, reserves and deposits of the non-banking financial company and other relevant considerations, may be made by that non-banking financial company to any person or a company or to a group of companies.]
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1. Inserted by Reserve Bank of India (Amendment) Act, 1997, w.r.e.f. 9/1/1997.
(1) The bank may at any time direct that every non-banking institution shall furnish to the bank, in such form, at such intervals and within such time, such statements, information or particulars relating to or connected with deposits received by the non-banking institution, as may be specified by the bank by general or special order.
(2) Without prejudice to the generality of the power vested in the bank under sub-section (1), the statements, information or particulars to be furnished under sub-section (1), may relate to all or any of the following matters, namely, the amount of the deposits, the purposes and periods for which, and the rates of interest and other terms and conditions on which, they are received.
(3) The bank may, if it considers necessary in the public interest so to do, give directions to non-banking institutions either generally or to any non-banking institution or group of non-banking institutions in particular, in respect of any matters relating to or connected with the receipt of deposits, including the rates of interest payable on such deposits, and the periods for which deposits may be received.
(4) If any non-banking institution fails to comply with any direction given by the bank under sub-section (3), the bank may prohibit the acceptance of deposits by that non-banking institution.
(5) 1[***]
(6) Every non-banking institution receiving deposits shall, if so required by the bank and within such time as the bank may specify, cause to be sent at the cost of the non-banking institution a copy of its annual balance-sheet and profit and loss account or other annual accounts to every person from whom the non-banking institution holds, as on the last day of the year to which the accounts relate, deposits higher than such sum as may be specified by the bank.
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1. Omitted by Act No. 51 of 1974.
(1) If the bank is satisfied for the purpose of enabling it to regulate the credit system of the country to its advantage it is necessary so to do, it may-
(a) Require financial institutions either generally or any group of financial institutions or financial institution in particular, to furnish to the Bank in such form, at such intervals and within such time, such statements, information or particulars relating to the business of such financial institutions or institution, as may be specified by the bank by general or special order;
(b) Give to such institutions either generally or to any such institution in particular, directions relating to the conduct of business by them or by it as financial institutions or institution.
(2) Without prejudice to the generality of the power vested in the bank under clause (a) of sub-section (1), the statements, information or particulars to be furnished by a financial institution may relate to all or any of the following matters, namely, the paid-up capital, reserves or other liabilities, the investments whether in government securities or otherwise, the persons to whom, and the purposes and periods for which, finance is provided and the terms and conditions, including the rate of interest, on which it is provided.
(3) In issuing directions to any financial institution under clause (b) of sub-section (1), the bank shall have due regard to the conditions in which, and the objects for which, the institution has been established, its statutory responsibilities, if any, and the effect the business of such financial institution is likely to have on trends in the money and capital markets.
It shall be the duty of every non-banking institution to furnish the statements, information or particulars called for, and to comply with any direction given to it, under the provisions of this chapter.
(1) It shall be the duty of an auditor of a non-banking institution to inquire whether or not the non-banking institution has furnished to the bank such statements, information or particulars relating to or connected with deposits received by it, as are required to be furnished under this chapter, and the auditor shall, except where he is satisfied on such inquiry that the non-banking institution has furnished such statements, information or particulars, make a report to the bank giving the aggregate amount of such deposits held by the non-banking institution.
1[(1A) The bank may, on being satisfied that it is necessary so to do, in the public interest or in the interest of the depositors or for the purpose of proper assessment of the books of accounts, issue directions to any non-banking financial company or any class of non-banking financial companies or non-banking financial companies generally or to the auditors of such non-banking financial company or companies relating to balance sheet, profit and loss account, disclosure of liabilities in the books of accounts or any matter relating thereto.]
(2) Where, in the case of 2[a non-banking financial company] the auditor has made, or intends to make, a report to the bank under sub-section (1), he shall include in his report under sub-section (2) of section 227 of the Companies Act, 1956 (1 of 1956), the contents of the report which he has made, or intends to make, to the bank.
1[(3) Where the bank is of the opinion that it is necessary so to do in the public interest or in the interest of the non-banking financial company, or in the interest of depositors of such company it may at any time by order direct that a special audit of the accounts of the non-banking financial company in relation to any such transaction or class of transactions or for such period or periods, as may be specified in the order, shall be conducted and the bank may appoint an auditor or auditors to conduct such special audit and direct the auditor or the auditors to submit the report to it.
(4) The remuneration of the auditors as may be fixed by the bank, having regard to the nature and volume of work involved in the audit and the expenses of or incidental to the audit, shall be borne by the non-banking financial company so audited.]
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1. Inserted by Reserve Bank of India (Amendment) Act, 1997, w.r.e.f. 9/1/1997.
2. Substituted for words “a non-banking institution, being a company” by Reserve Bank of India (Amendment) Act, 1997, w.e.f. 9/1/1997.
1[Power of bank to prohibit acceptance of deposit and alienation of assets. (1) If any non-banking financial company violates the provisions of any section or fails to comply with any direction or order given by the bank under any of the provisions of this Chapter, the bank may prohibit the non-banking financial company from accepting any deposit.
(2) Notwithstanding anything to the contrary contained in any agreement or instrument or any law for the time being in force, the bank, on being satisfied that it is necessary so to do in the public interest or in the interest of the depositors, may direct, the non-banking financial company against which an order prohibiting from accepting deposit has been issued, not to sell, transfer, create charge or mortgage or deal in any manner with its property and assets without prior written permission of the bank for such period not exceeding six months from the date of the order.
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1. Inserted by Reserve Bank of India (Amendment) Act, 1997, w.r.e.f. 9/1/1997.
(1) The bank, on being satisfied that a non-banking financial company-
(a) Is unable to pay its debt; or
(b) Has by virtue of the provisions of section 45-IA become disqualified to carry on the business of a non-banking financial institution; or
(c) Has been prohibited by the bank from receiving deposit by an order and such order has been in force for a period of not less than three months; or
(d) The continuance of the non-banking financial company is detrimental to the public interest or to the interest of depositors of the company,
May file an application for winding up of such non-banking financial company under the Companies Act, 1956 (1 of 1956).
(2) A non-banking financial company shall be deemed to be unable to pay its debt if it has refused or has failed to meet within five working days any lawful demand made at any of its offices or branches and the bank certifies in writing that such company is unable to pay its debt.
(3) A copy of every application made by the bank under sub-section (1) shall be sent to the Registrar of Companies.
(4) All the provisions of the Companies Act, 1956 (1 of 1956) relating to winding up of a company shall apply to a winding up proceeding initiated on the application, made by the bank under this provision.]
(1) The bank may, at any time, cause an inspection to be made by one or more of its officers or employees or other persons (hereinafter in this section referred to as the inspecting authority)-
(i) Of any non-banking institution, including a financial institution, for the purposes of verifying the correctness or completeness of any statement, information or particulars furnished to the bank or for the purpose of obtaining any information or particulars which the non-banking institution has failed to furnished on being called upon to do so; or
(ii) Of any non-banking institution being a financial institution, if the bank considers it necessary or expedient to inspect that institution.
(2) It shall be the duty of every director or member of any committee or other body for the time being vested with the management of the affairs of the non-banking institution or other officer or employee thereof to produce to the inspecting authority all such books, accounts and other documents in his custody or power and to furnish that authority with any statements and information relating to the business of the institution as that authority may require of him, within such time as may be specified by that authority
(3) The inspection authority may examine on oath director or member of any committee or body for the time being vested with the management of the affairs of the non-banking institution or other officer or employee thereof, in relation to its business and may administer an oath accordingly.
No person shall solicit on behalf of any non-banking institution either by publishing or causing to be published any prospectus or advertisement or in any other manner deposits of money from the public unless-
(a) He has been authorised in writing by the said non-banking institution to do so and specifies the name of the institution which has so authorised him, and
(b) The prospectus or advertisement complies with any order made by the bank under section 45J and with any other provision of law for the time being in force, applicable to the publication of such prospectus or advertisement.
1[Disclosure of information. (1) Any information relating to a non-banking financial company-
(i) Contained in any statement or return submitted by such company under the provisions of this Chapter; or
(ii) Obtained through audit or inspection or otherwise by the bank,
Shall be treated as confidential and shall not, except otherwise provided in this section, be disclosed.
(2) Nothing in this section shall apply to-
(a) The disclosure by any non-banking financial company, with the previous permission of the bank, of any information furnished to the bank under sub-section (1);
(b) The publication by the bank, if it considers necessary in the public interest so to do, of any information collected by it under sub-section (1) in such consolidated form as it may think fit without disclosing the name of any non-banking financial company or its borrowers;
(c) The disclosure or publication by the non-banking financial company or by the bank of any such information to any other non-banking financial company or in accordance with the practice and usage customary amongst such companies or as permitted or required under any other law:
PROVIDED that any such information received by a non-banking financial company under this clause shall not be published except in accordance with the practice and usage customary amongst companies or as permitted or required under any other law.
(3) Notwithstanding anything contained in this Act or in any other law for the time being in force, the bank, if it is satisfied that, in the public interest or in the interest of the depositors or the non-banking financial company or to prevent the affairs of any non-banking financial company being conducted in a manner detrimental to the interest of the depositors, it is expedient so to do, may, either on its own motion or on being requested, furnish or communicate any information relating to the conduct of business by any non-banking financial company to any authority constituted under any law.
(4) Notwithstanding anything contained in any law for the time being in force, no court or Tribunal or other authority shall compel the bank to produce or to give for inspection of any statement or other material obtained by the bank under any provisions of this Chapter.
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1. Inserted by Reserve Bank of India (Amendment) Act, 1997, w.r.e.f. 9/1/1997.
The bank, on being satisfied that it is necessary so to do, may declare by notification in the Official Gazette that any or all of the provisions of this Chapter shall not apply to a non-banking institution or a class of non-banking institutions or a non-banking financial company or to any class or non-banking financial companies either generally or for such period as may be specified, subject to, such condition, limitations or restrictions as it may think fit to impose.]
[Section 45-O. Penalties: repealed by the Reserve Bank of India (Amendment) Act, 1974]
[Section 45P. Cognizance of offences: repealed by the Reserve Bank of India (Amendment) Act, 1974]
The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.
1[Power of Company Law Board to order repayment of deposit. (1) Every deposit accepted by a non-banking financial company, unless renewed, shall be repaid in accordance with the terms and conditions of such deposit.
(2) Where a non-banking financial company has failed to repay any deposit or part thereof in accordance with the terms and conditions of such deposit, the Company Law Board constituted under section 10E of the Companies Act, 1956 (1 of 1956), may, if it is satisfied, either on its own motion or on an application of the depositor, that it is necessary so to do to safeguard the interests of the company, the depositors or in the public interest, direct, by order, the non-banking financial company to make repayment of such deposit or part thereof forthwith or within such time and subject to such conditions as may be specified in the order:
PROVIDED that the Company Law Board may, before making any order under this sub-section, give a reasonable opportunity of being heard to the non-banking financial company and the other persons interested in the matter.
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1. Inserted by Reserve Bank of India (Amendment) Act, 1997, w.r.e.f. 9/1/1997.
(1) Where a deposit is held by a non-banking financial institution to the credit of one or more persons, the depositor or, as the case may be, all the depositors together may nominate, in the manner prescribed by rules made by the Central Government under section 45ZA of the Banking Regulation Act, 1949 (10 of 1949), one person to whom in the event of the death of the sole depositor or the death of all the depositors, the amount of deposit may be returned by the non-banking financial institution.
(2) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such deposit, where a nomination made purports to confer on any person the right to receive the amount of deposit from the non-banking financial institution, the nominee shall, on the death of the sole depositor or, as the case may be, on the death of all the depositors, become entitled to all the rights of the sole depositor or, as the case may be, of the depositors, in relation to such deposit to the exclusion of all other persons, unless the nomination is varied or cancelled in the manner prescribed by rules made by the Central Government under section 45ZA of the Banking Regulation Act, 1949 (10 of 1949).
(3) Where the nominee is a minor, it shall be lawful for the depositor making the nomination to appoint, in the manner prescribed by rules made by the Central Government under section 45ZA of the Banking Regulation Act, 1949 (10 of 1949), any person to receive the amount of deposit in the event of his death during the minority of the nominee.
(4) Payment by a non-banking financial institution in accordance with the provisions of this section shall constitute a full discharge to the non-banking financial institution of its liability in respect of the deposit:
PROVIDED that nothing contained in this sub-section shall affect the right or claim which any person may have against the person to whom any payment is made under this section.
(5) No notice of the claim of any person, other than the person or persons in whose name a deposit is held by a non-banking financial institution, shall be receivable by the non-banking institution, nor shall the non-banking financial institution be bound by any such notice even though expressly given to it:
PROVIDED that where any decree, order, certificate or other authority from a court of competent jurisdiction relating to such deposit is produced before a non-banking institution, the non-banking institution shall take due note of such decree, order, certificate or other authority.]
1[CHAPTER III-C
PROHIBITION OF ACCEPTANCE OF DEPOSITS BY UNINCORPORATED BODIES
——————–
1. Inserted by Act No. 1 of 1984, w.e.f. 15/2/1984.
45R. Interpretation.
The words and expressions used in this Chapter and defined in Chapter IIIB shall have the meanings respectively assigned to them therein.
Section 45 S. Deposits not to be accepted in certain cases
1[Deposits not to be accepted in certain cases. (1) No person, being an individual or a firm or an unincorporated association of individuals shall, accept any deposit-
(i) If his or its business wholly or partly includes any of the activities specified in clause (c) of section 45-I; or
(ii) If his or its principal business is that of receiving of deposits under any scheme or arrangement or in any other manner, or lending in any manner:
PROVIDED that nothing contained in this sub-section shall apply to the receipt of money by an individual by way of loan from any of his relatives or to the receipt of money by a firm by way of loan from the relative or relatives of any of the partners.
(2) Where any person referred to in sub-section (1) holds any deposit on the lst day of April, 1997 which is not in accordance with sub-section (1), such deposit shall be repaid by that person immediately after such deposit becomes due for repayment or within three years from the date of such commencement, whichever is earlier:
PROVIDED that if the bank is satisfied on an application made by any person to the bank that such person is unable to pay a part of the deposits for reasons beyond his control or such repayment shall cause extreme hardship to him, it may, by an order in writing, extend such period by a period not exceeding one year subject to such conditions as may be specified in the order.
(3) On and from the lst day of April, 1997, no person referred to in sub-section (1) shall issue or cause to be issued any advertisement in any form for soliciting deposit.
Explanation: For the purposes of this section, a person shall be deemed to be a relative of another if, and only if-
(i) They are members of a Hindu undivided family; or
(ii) They are husband and wife; or
(iii) The one is related to the other in the manner indicated in the List of relatives below:
List of relatives
1. Father, 2. Mother (including step-mother), 3. Son (including step-son), 4. Son’s wife, 5. Daughter (including step-daughter), 6. Father’s father, 7. Father’s mother,8. Mother’s mother,9. Mother’s father,10. Son’s son, 11. Son’s son’s wife, 12. Son’s daughter, 13. Son’s daughter’s husband, 14. Daughter’s husband, 15. Daughter’s son, 16. Daughter’s son’s wife, 17. Daughter’s daughter, 18. Daughter’s daughter’s husband, 19. Brother (including step-brother), 20. Brother’s wife, 21, Sister (including step-sister), 22. Sister’s husband.]
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1. Substituted by Reserve Bank of India (Amendment) Act, 1997, w.e.f. 1/4/1997.
(1) Any court having jurisdiction to issue a search warrant under the Code of Criminal Procedure, 1973 (2 of 1974) may, on an application by an officer of the bank or of the State Government authorised in this behalf stating his belief that certain documents relating to acceptance of deposits in contravention of the provisions of section 45S are secreted in any place within the local limits of the jurisdiction of such court, issue a warrant to search for such documents.
(2) A warrant issued under sub-section (1) shall be executed in the same manner and shall have the same effect as a search warrant issued under the Code of Criminal Procedure, 1973.
1[Definitions.
1[CHAPTER III-D
REGULATION OF TRANSACTIONS IN DERIVATIVES, MONEY MARKET INSTRUMENTS, SECURITIES, ETC.
For the purpose of this Chapter,-
(a) “derivative” means an instrument, to be settled at a future date, whose value is derived from change in interest rate, foreign exchange rate, credit rating or credit index, price of securities (also called “underlying”), or a combination of more than one of them and includes interest rate swaps, forward rate arrangements, foreign currency swaps, foreign currency-rupee swaps, foreign currency options, foreign currency-rupee options or such other instruments as may be specified by the Bank from time to time;
(b) “money market instruments” include call or notice money, term money, repo, reverse repo, certificate of deposit, commercial usance bill, commercial paper and such other debt instrument of original or initial maturity up to one year as the Bank may specify from time to time;
(c) “repo” means an agreement for borrowing funds by selling securities with an agreement to repurchase the securities on a mutually agreed future date at an agreed price which includes interest for the funds borrowed;
(d) “reverse repo” means an instrument for lending funds by purchasing securities with an agreement to resell the securities on a mutually agreed future date at an agreed price which includes interest for the funds lent;
(e) “securities” means securities of the Central Government or a State Government or such securities of a local au thority as may be specified in this behalf by the Central Government and, for the purposes of repo” or “reverse repo”, includes corporate bonds and debentures.]
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1. Ins. by Act No. 26 of 2006 w.e.f. 12-6-2006.
1[Transactions in derivatives. (1) Notwithstanding anything contained in the Securities Contracts (Regulation) Act, 1956 (42 of 1956) or any other law for the time being in force, transactions in such derivatives, as may be specified by the Bank from time to time, shall be valid, if at least one of the parties to the transactions is the Bank, a scheduled bank, or such other agency falling under the regulatory purview of the Bank under the Act, the Banking Regulation Act, 1949 (10 of 1949), the Foreign Exchange Management Act, 1999 (42 of 1999), or any other Act or instrument having the force of law, as may be specified by the Bank from time to time.
(2) Transactions in such derivatives, as had been specified by the Bank from time to time, shall be deemed always to have been valid, as if the provisions of subsection (1) were in force at all material times.]
——————–
1. Ins. by Act No. 26 of 2006 w.e.f. 12-6-2006.
1[Power to regulate transactions in derivatives, money market instruments, etc. (1) The Bank may, in public interest, or to regulate the financial system of the country to its advantage, determine the policy relating to interest rates or interest rate products and give directions in that behalf to all agencies or any of them, dealing in securities, money market instruments, foreign exchange, derivatives, or other instruments of like nature as the Bank may specify from time to time:
Provided that the directions issued under this sub-section shall not relate to the procedure for execution or settlement of the trades in respect of the transactions mentioned therein, on the Stock Exchanges recognised under Section 4 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956).
(2) The Bank may, for the purpose of enabling it to regulate agencies referred to in sub-section (1), call for any information, statement or other particular from them, or cause an inspection of such agencies to be made.]
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1. Ins. by Act No. 26 of 2006 w.e.f. 12-6-2006.
1[Duty to comply with directions and furnish information. It shall be the duty of every director or member or other body for the time being vested with the management of the affairs of the agencies referred to in Section 45-W to comply with the directions given by the Bank and to submit the information or statement or particulars called for under that section.]
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1. Ins. by Act No. 26 of 2006 w.e.f. 12-6-2006.
The Central Government shall transfer to the bank rupee securities of the value of five crores of rupees to be allocated by the bank to the reserve fund.
1[Contribution to National Rural Credit (Long Term Operations) Fund and National Rural Credit (Stabilisation) Fund. The bank shall contribute every year such sums of money as it may consider necessary and feasible to do so, to the National Rural Credit (Long Term Operations) Fund and the National Rural Credit (Stabilisation) Fund established and maintained by the National Bank under sections 42 and 43, respectively, of the National Bank for Agriculture and Rural Development Act, 1981.
——————–
1. Earlier sections 46A and 46B substituted by Act No. 61 of 1981, w.e.f. 12/7/1982.
[Section 46B: Repealed]
(1) The bank shall establish and maintain a fund to be known as the national industrial credit (long term operations) fund to which shall be credited-
(a) An initial sum of ten crores of rupees by the bank;
(b) Such further sums of money as the bank may contribute every year:
PROVIDED that the annual contribution during each of the five years commencing with the year ending on the 30th day of June, 1965 shall not be less than five crores of rupees:
PROVIDED FURTHER that the Central Government may, if the circumstances so require, authorise the bank to reduce the said sum of five crores of rupees in any year.
(2) The amount in the said fund shall be applied by the bank only to the following objects, namely: -
(a) The making to the Development Bank of loans and advances for the purpose of the purchase of, or subscription to, stocks, shares, bonds or debentures issued by the Industrial Finance Corporation of India, a State Financial Corporation or any other financial institution which may be notified by the Central Government in this behalf, or for the purposes of any other business of the Development Bank;
(b) The purchasing of bonds and debentures issued by the Development Bank;
1[(c) The making to the Exim Bank or the Reconstruction Bank [or the Small Industries Bank], as the case may be, of loans and advances for the purposes of any business of the Exim Bank or the Reconstruction Bank 2[or the Small Industries Bank],
(d) The purchasing of bonds and debentures issued by the Exim Bank or the Reconstruction Bank [or the Small Industries Bank, as the case may be.
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1. Inserted by Act No. 28 of 1981, w.e.f. 1/1/1982.
2. Inserted by Act No. 39 of 1989, w.e.f. 7/3/1990.
1[National Housing Credit (Long Term Operations) Fund. (1) The Bank shall establish and maintain a Fund to be known as the National Housing Credit (Long Term Operations) Fund to which shall be credited every year such sums of money as it may consider necessary.
(2) The amount in the said fund shall be applied by the Bank only to the following objects, namely: -
(a) The making to the National Housing Bank of loans and advances for the purpose of any business of the National Housing Bank;
(b) The purchasing of bonds and debentures issued by the National Housing Bank.
——————–
1. Inserted by Act No. 53 of 1987, w.e.f. 9/7/1988.
After making provisions for bad and doubtful debts, depreciation in assets, contributions to staff and superannuation funds and for all other matters for which provision is to be made by or under this Act or which are usually provided for by bankers, the balance of the profits shall be paid to the Central Government.
Notwithstanding anything contained in the Income Tax Act, 1961 (43 of 1961), or any other enactment for the time being in force relating to income-tax or super-tax, the bank shall not be liable to pay income-tax or super-tax on any of income, profits or gains.
The bank shall make public from time to time the standard rate at which it is prepared to buy or re-discount bills of exchange or other commercial paper eligible for purchase under this Act.
(1) Not less than two auditors shall be appointed, and their remuneration fixed, by the Central Government.
(2) The auditors shall hold office for such term not exceeding one year as the Central Government may fix while appointing them, and shall be eligible for reappointment.
Without prejudice to anything contained in section 50, the Central Government may at any time appoint the Comptroller and Auditor-General to examine and report upon the accounts of the bank.
(1) Every auditor shall be supplied with a copy of the annual balance-sheet, and it shall be his duty to examine the same, together with the accounts and vouchers relating thereto; and every auditor shall have a list delivered to him of all books kept by the bank, and shall at all reasonable times have access to the books, accounts and other documents of the bank, and may, at the expense of the bank, employ accountants or other person to assist him in investigating such accounts and may, in relation to such accounts, examine any director or officer of the bank.
(2) The auditors shall make a report to the Central Government upon the annual balance-sheet and accounts, and in every such report they shall state whether, in their opinion, the balance-sheet is a full and fair balance-sheet containing all necessary particulars and properly drawn up so as to exhibit a true and correct view of the state of the bank’s affairs, and, in case they have called for any explanation or information from the Central Board, whether it has been given and whether it is satisfactory.
(1) The bank shall prepare and transmit to the Central Government a weekly accounts of the Issue Department and of the Banking Department in such form as the Central Government may, by notification in the Gazette of India, prescribe. The Central Government shall cause these accounts to be published in the Gazette of India at such intervals and in such modified form as it may deem fit.
(2) The bank shall also, within two months from the date on which the annual accounts of the bank are closed, transmit to the Central Government a copy of the annual accounts signed by the Governor, the Deputy Governors and the Chief Accounting Officer of the bank and certified by the auditor, together with a report by the Central Board on the working of the bank throughout the year, and the Central Government shall cause such accounts and report to be published in the Gazette of India.
1[Rural credit and development. The bank may maintain expert staff to study various aspects of rural credit and development and in particular it may: -
(a) Tender expert guidance and assistance to the National Bank;
(b) Conduct special studies in such areas as it may consider necessary to do so for promoting integrated rural development.]
——————–
1. Substituted by Act No. 61 of 1981, w.e.f. 1/5/1982.
(1) The Governor may, by general or special order, delegate to a Deputy Governor, subject to such conditions and limitations, if any, as may be specified in the order, such of the powers and functions exercisable by him under this Act or under any other law for the time being in force as he may deem necessary for the efficient administration of the functions of the bank.
(2) The fact that a Deputy Governor exercises any power or does any act or thing in pursuance of this Act shall be conclusive proof of his authority to do so.
(1) The bank may, notwithstanding anything contained in any law, or in any agreement, for the time being in force, depute any member of its staff for such period as it may thinks fit-
(a) To any institution which is wholly or substantially owned by the bank;
(b) To the Development Bank, so, however, that no such deputation shall continue after the expiration of thirty months from the commencement of section 5 of the Public Financial Institutions Laws (Amendment) Act, 1975;
(c) To the Unit Trust, so, however, that no such deputation shall continue after the expiration of thirty months from the date notified by the Central Government under sub-section (1) of section 4A of the Unit Trust of India Act, 1963 (52 of 1963);
And thereupon the person so deputed shall, during the period of his deputation, render such service to the institution to which he is so deputed as that institution may require.
(2) Where a person has been deputed to an institution under sub-section (1), he shall not be entitled to claim any salary, emoluments and other terms and conditions of service, which he would not have been entitled to claim if he had not been so deputed.
(3) Nothing contained in this section shall empower the bank to depute any member of its staff to any institution on any salary, emoluments or other terms and conditions which is or are less favourable to him than that or those to which he is entitled immediately before such deputation.
(4) For the purposes of this section, an institution shall be deemed to substantially owned by the bank if in the capital of the institution the bank has not less than forty per cent share.
Explanation: The word “capital” means, in relation to the Unit Trust, the initial capital of that Trust.
Section 55. Section
[Section 55. Reports by the bank: repealed by Act No. 62 of l948, w.e.f. 1st. January, 1949]
[Section 56. Power to require declaration as to ownership of registered shares: repealed by Act No. 62 of l948, w.e.f. 1st. January, 1949]
(1) Nothing in the Companies Act, 1956 (1 of 1956) shall apply to the bank and the bank shall not be placed in liquidation save by order of the Central Government and in such manner as it may direct.
(2) [Omitted]
(1) The Central Board may, with the previous sanction of the Central Government, 3[by notification in the Official Gazette make regulations consistent with this Act to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing provision, such regulations may provide for all or any of the following matters, namely: -
[Clauses
(a) to (e) omitted]
(f) The manner in which the business of the Central Board shall be transacted, and the procedure to be followed at meetings thereof;
(g) The conduct of business of Local Boards and the delegation to such Boards of powers and functions;
(h) The delegation of powers and functions of the Central Board to Deputy Governors, Directors or officers of the Bank;
(i) The formation of Committees of the Central Board, the delegation of powers and functions of the Central Board to such Committees, and the conduct of business in such Committees;
(j) The constitution and management of staff and superannuation funds for the officers and servants of the bank;
(k) The manner and form in which contracts binding on the bank may be executed;
(l) The provision of an official seal of the bank and the manner and effect of its use;
(m) The manner and form in which the balance-sheet of the Bank shall be drawn up, and in which the accounts shall be maintained;
(n) The remuneration of Directors of the bank;
(o) The relations of the scheduled banks with the Bank and the returns to be submitted by the scheduled banks to the bank;
(p) The regulation of clearing-houses for 1[banks (including post office savings banks);]
2[(pp) The regulation of fund transfer through electronic means between the banks or between the banks and other financial institutions referred to in clause (c) of section 45-I, including the laying down of the conditions subject to which banks and other financial institutions shall participate in such fund transfers, the manner of such fund transfers and the right and obligations of the participants in such fund transfers.]
(q) The circumstances in which, and the conditions and limitations subject to which, the value of any lost, stolen, mutilated or imperfect currency note of the Government of India or bank note may be refunded; and
(r) Generally, for the efficient conduct of the business of the bank.
(3) Any regulation made under this section shall have effect from such earlier or later date as may be specified in the regulation.
(4) Every regulation shall, as soon as may be after it is made by the Central Board, be forwarded to the Central Government and that government shall cause a copy of the same to be laid 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.
(5) Copies of all regulations made under this section shall be available to the public on payment.
——————–
1. Substituted by Act No. 66 of 1988, w.e.f. 30/12/1988.
2. Inserted by the Information Technology Act, 2000, w.e.f. 9th. June, 2000.
3. Inserted by Act No. 66 of 1988, w.e.f. 30/12/1988.
(1) No suit, prosecution or other legal proceeding shall lie against the Central Government or the bank or any other person in respect of anything which is in good faith done or intended to be done under this Act or in pursuance of any order, regulation or direction made or given thereunder.
(2) No suit or other legal proceeding shall lie against the Central Government or the bank for an damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act or in pursuance of any order, regulation or direction made or given thereunder.
(1) Whoever in any application, declaration, return, statement, information or particulars made, required or furnished by or under or for the purposes of any provisions of this Act, or any order, regulation or direction made or given thereunder or in any prospectus or advertisement issued for or in connection with the invitation by any person, of deposits of money from the public wilfully makes a statement which is false in any material particular knowing it to be false or wilfully omits to make a material statement shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.
(2) If any person fails to produce any book, account or other document or to furnish any statement, information or particulars which, under this Act or any order, regulation or direction made or given thereunder, it is his duty to produce or furnish or to answer any question put to him in pursuance of the provisions of this Act or of any order, regulation or direction made or given thereunder, he shall be punishable with fine which may extend to two thousand rupees in respect of each offence and if he persists in such failure or refusal, with further fine which may extend to one hundred rupees for every day, after the first during which the offence continues.
(3) If any person contravenes the provisions of section 31, he shall be punishable with fine, which may extend to the amount of the bill of exchange, hundi, promissory note or engagement for payment of money in respect whereof the offence is committed.
(4) If any person discloses any credit information, the disclosure of which is prohibited under section 45E, he shall be punishable with imprisonment for a term, which may extend to six months, or with fine, which may extend to one thousand rupees, or with both.
1[(4A) If any person contravenes the provisions of sub-section (1) of section 45-IA, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to five years and with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees.
(4AA) If any auditor fails to comply with any direction given or order made by the bank under section 45MA, he shall be punishable with fine, which may extend to five thousand rupees.
(4AAA) Whoever fails to comply with any order made by the Company Law Board under sub-section (2) of section 45QA, shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to a fine of not less than rupees fifty for every day during which such non-compliance continues.]
(5) 2[If any person other than an auditor]-
(a) Receives any deposit in contravention of any direction given or order made under Chapter IIIB; or
3[(aa) Fails to comply with any direction given or order made by the bank under any of the provisions of Chapter III B; or]
(b) Issues any prospectus or advertisement otherwise than in accordance with section 45NA or any order made under section 45J, as the case may be,
He shall be punishable with imprisonment for a term, which may extend to three years and shall also be liable to fine which may extend-
(i) In the case of a contravention falling under clause (a), to twice the amount of the deposit received; and
(ii) In the case of a contravention falling under clause (b), to twice the amount of the deposit called for by the prospectus or advertisement.
3[(5A) If any person contravenes any provision of section 45S, he shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of deposit received by such person in contravention of that section, or two thousand rupees, whichever is more, or with both:
PROVIDED that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, the imprisonment shall not be less than one year and the fine shall not be less than one thousand rupees.
(5B) Notwithstanding anything contained in section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to impose a sentence of fine in excess of the limit specified in that section on any person convicted under sub-section (5A).]
(6) If any other provision of this Act is contravened or if any default is made in complying with any other requirement of this Act or of any order, regulation or direction made or given or condition imposed thereunder, any person guilty of such contravention or default shall be punishable with fine which may extend to two thousand rupees and where a contravention or default is a continuing one, with further fine which may extend to one hundred rupees for every day, after the first, during which the contravention or default continues.
——————–
1. Inserted by Reserve Bank of India (Amendment) Act, 1997, w.r.e.f. 9/1/1997.
2. Substituted for the words “If any person” by Reserve Bank of India (Amendment) Act, 1997, w.e.f. 9/1/1997.
3. Inserted by Act No. 1 of 1984, w.e.f. 15/2/1984.
(1) Where a person committing a contravention or default referred to in section 58B is a company, every person who, at the time the contravention or default 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 or default and shall be liable to be proceeded against and punished accordingly:
PROVIDED that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention of default was committed without his knowledge or that he had exercised all due diligence to prevent the contravention or default.
(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 same was committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary, or other officer or employee of the company, such director, manager, secretary, other officer or employee shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Explanation I: Any offence punishable under this Act shall be deemed to have been committed at the place where the registered office or the principal place of business, as the case may be, in India, of the company is situated.
Explanation II: For the purpose of this section: -
(a) “A company” means any body corporate and includes a corporation, a non-banking institution, a firm, a co-operative society or other association of individuals;
(b) “Director”, in relation to a firm, means a partner in the firm.
Nothing contained in section 58B shall apply to, or in respect of, any matter dealt with in section 42.
(1) No court shall take cognizance of any offence punishable under this Act except upon a complaint in writing made by an officer of the Bank, generally or specially authorised in writing in this behalf by the Bank, and no court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class or a court superior thereto shall try any such offence:
1[PROVIDED that in respect of any offence punishable under sub-section (5A) of section 58B, a complaint in writing may also be made by an officer of the State Government, generally or specially authorised in writing in this behalf by that government.
(2) Notwithstanding any thing contained in the Code of Criminal Procedure, 1973 (2 of 1974) a Magistrate may, if he sees reason so to do, dispense with the personal attendance of the officer of the Bank filing the complaint, but the Magistrate may in his discretion, at any stage of the proceedings, direct the personal attendance of the complainant.
——————–
1. Inserted by Act No. 1 of 1984, w.e.f. 15/2/1984.
A court imposing any fine under this Act may direct that the whole or any part thereof shall be applied in, or towards payment of, the costs of the proceedings.
1[Power of bank to impose fine. (1) Notwithstanding anything contained in section 58B, if the contravention or default of the nature referred to in section 58B is committed by a non-banking financial company, the bank may impose on such non-banking financial company-
(a) A penalty not exceeding five thousand rupees; or
(b) Where the contravention or default is under sub-section (4A) or clause (a) or clause (aa) of sub-section (5) of section 58B, a penalty of five lakh rupees or twice the amount involved in such contravention or default, where the amount is quantifiable, whichever is more; and where such contravention or default is a continuing one, further penalty which may extend to twenty-five thousand rupees for every day, after the first, during which the contravention or default continues.
(2) For the purpose of imposing penalty under sub-section (1), the bank shall serve a notice on the non-banking financial company requiring it to show cause why the amount specified in the notice should not be imposed as a penalty and a reasonable opportunity of being heard shall also be given to such non-banking financial company.
(3) Any penalty imposed by the bank under this section shall be payable within a period of thirty days from the date on which notice issued by the bank demanding payment of the sum is served on the non-banking financial company and, in the event of failure of the non-banking financial company to pay the sum within such period, may be levied on a direction made by the principal civil court having jurisdiction in the area where the registered office or the head office of the non-banking financial company is situated :
PROVIDED that no such direction shall be made, except on an application made by an officer of the bank authorised in this behalf, to by the principal civil court.
(4) The court, which makes a direction under sub-section (3), shall issue a certificate specifying the sum payable by the non-banking financial company and every such certificate shall be enforceable in the same manner as if it were a decree made by the court in a civil suit.
(5) Non complaint shall be filed against any non-banking financial company in any court of law pertaining to any contravention or default in respect of which the bank under this section has imposed any penalty.
(6) Where any complaint has been filed against a non-banking financial company in a court in respect of contravention or default of the nature referred to in section 58B, no proceedings for imposition of penalty against that non-banking financial company shall be taken under this section.]
——————–
1. Inserted by Act No. 1 of 1984, w.e.f. 15/2/1984.
[Sections 59 to 61: repealed by Act No. 20 of 1937]
SCHEDULE I
1[1. The Western Area shall consist of the States of Goa, Gujarat, Madhya Pradesh and Maharashtra and the Union Territories of Dadra and Nagar Haveli, and Daman and Diu.
2. The Eastern Area shall consist of the States of Arunachal Pradesh, Assam, Bihar, Manipur, Meghalaya, Mizoram, Nagaland, Orissa, Sikkim, Tripura and West Bengal and the Union Territories of Andaman and Nicobar Islands.]
3. The Northern Area shall consist of the States of Jammu and Kashmir, Punjab, Haryana, Himachal Pradesh, Rajasthan and Uttar Pradesh and the Union territories of Chandigarh and Delhi.
4. The Southern Area shall consist of the States of Andhra Pradesh, Karnataka, Tamil Nadu and Kerala and the Union territories of Pondicherry and Lakshadweep.
——————–
1. Substituted by Reserve Bank of India (Amendment) Act, 1997, w.e.f. 9/1/1997.
SCHEDULE II
[Sections 2(e) and 42]
Abhyudaya Co-operative Bank Ltd., Bombay (18/8/1988 w.e.f. 19/1/1988)
ABN Amro Bank N.V. (11/10/1991)
Adhiyaman Grama Bank, Dharmapuri (Tamil Nadu) (27/12/1985)
Ajgemene bank Nederland N.V.
Akola Gramin Bank, Akola (Maharashtra) (16/10/1983)
Alaknanda Gramin Bank, Pauri (U.P.) (31/8/1985)
Aligarh Gramin Bank, Aligarh (U.P.) (22/3/1981)
Allahabad Bank
Allahabad Kshetriya Gramin Bank, Allahabad (U.P.) (23/8/1980)
Alwar-Bharatpur Anchalik Gramin Bank, Bharatpur (Rajasthan)
(21/2/1981)
Ambala-Kurukshetra Gramin Bank, Ambala City (Haryana) (18/1/1985)
American Express International Banking Corporation
Andhra Bank, Masulipatam (A.P.)
Andhra Pradesh State Co-operative Bank Ltd., Hyderabad (A.P.) (2/7/1966)
ANZ Grindlays Bank p.l.c. (25/1/1990)
Arab Bangladesh Bank Ltd.
Aravali Kshetriya Gramin Bank, Sawaimadhopur (Rajasthan) (2/10/1981)
Arunachal Pradesh Rural Bank, Pasighat (Arunachal Pradesh) (30/11/1983)
Aurangabad-Jalna Gramin Bank, Aurangabad (Maharashtra) (6/12/1982)
Baitarani Gramya Bank, Baripada (Orissa) (23/6/1980)
Balasore Gramya Bank, Balasore (Orissa) (6/8/1980)
Ballia Kshetriya Gramin Bank, Ballia (U.P.) (25/12/1976)
Banaskantha-Mehsana Gramin Bank, Patan (Gujarat) (29/11/1981)
Bank International Indonesia
Bank of America National Trust and Savings Association (29/5/1964)
Bank of Bahrain and Kuwait B.S.C. (14/7/1986)
Bank of Baroda
Bank of Ceylon
Bank of Cochin Ltd., Ernakulam
Bank of Credit and Commerce International (Overseas) Ltd.
Bank of India
Bank of Karad Ltd., Karad (5/6/1968)
Bank of Madura Ltd., Madurai (T.N.)
Bank of Maharashtra
Bank of Nova Scotia, Toronto (Canada) (31/5/1984)
Bank of Oman Ltd.
Bank of Punjab Ltd. (19/4/1995)
Bank of Rajasthan Ltd., Udaipur (Rajasthan)
Bank of Tamilnad Ltd. (22/11/1979)
Bank of Thanjaur Ltd.
1[The Bank of Tokyo-Mitsubishi UFJ Ltd.]
Banque de I’ Indochine et de Suez (INDOSUEZ) (2/10/1981)
Banque Nationale de Paris (1/7/1966)
Barabanki Gramin Bank, Barabanki (U.P.)
Bardhaman Gramin Bank, Burdwan (W.B.) (25/11/1980)
Bareilly Corporation Bank Ltd., Bareilly (U.P.)
Bareilly Kshetriya Gramin Bank, Bareilly (U.P.) (27/9/1980)
Bassein Catholic Co-operative Bank Ltd., Papdy Vasai (Town) Thane District, Maharashtra (1/11/1990)
Bastar Kshetriya Gramin Bank, Jagdalpur (M.P.) (15/12/1979)
Basti Gramin Bank, Basti (U.P.) (1/8/1980)
Begusarai Kshetriya Gramin Bank, Begusarai (Bihar) (23/3/1985)
Benares State Bank
Bhagalpur-Banka Kshetriya Gramin Bank, Bhagalpur (Bihar) (22/3/1985)
Bhagirath Gramin Bank, Sitapur (U.P.) (19/9/1976)
Bhandara Gramin Bank, Bhandara (Maharashtra)
Bharat Overseas Bank Ltd., Madras
Bhilwara-Ajmer Kshetriya Gramin Bank, Bhilwara (Rajasthan) (24/3/1984)
Bhojpur Rohtas Gramin Bank, Arrah (Bihar) (26/12/1975)
Bidur Gramin Bank, Bijnor (U.P.) (18/1/1983)
Bihar State Co-operative Bank Ltd., Patna (Bihar) (2/7/1966)
Bijapur Grameena Bank, Bijapur (Karnataka) (31/3/1983)
Bikaner Kshetriya Gramin Bank, Bikaner (Rajasthan) (25/3/1985)
Bilaspur-Raipur Kshetriya Gramin Bank, Bilaspur (M.P.) (20/10/1976)
Bolangir Anchalik Gramya Bank, Bolangir (10/4/1976)
Bombay Mercantile Co-operative Bank Ltd., Bombay (18/8/1988 w.e.f. 1/9/1988)
British Bank of the Middle East
Buldhana Gramin Bank, Buldhana (Maharashtra) (17/10/1985)
Bundelkhand Kshetriya Gramin Bank, Tikkamgarh (M.P.)
Bundi-Chittorgarh Kshetriya Gramin Bank, Bundi (Rajasthan) (23/3/1984)
Cachar Gramin Bank, Silchar (Assam) (31/3/1981)
Canara Bank
Catholic Syrian Bank Ltd., Trichur (18/8/1969)
Cauvery Grameena Bank, Mysore (2/10/1976)
Central Bank of India
Centurion Bank Ltd. (27/1/1995)
Chaitanya Grameena Bank, Tenali (Guntur) (A.P.) (25/3/1983)
Chambal Kshetriya Gramin Bank, Morena (M.P.) (11/2/1984)
Champaran Kshetriya Gramin Bank, Motihari (Bihar) (21/3/1976)
Chandrapur Gadchiroli Gramin Bank, Chandrapur (Maharashtra)
(4/2/1983)
Chartered Bank
Chase Manhattan Bank N.A. (7/12/1994)
Chhatrasal Gramin Bank, Orai (U.P.) (30/3/1982)
Chhindwara-Seoni Kshetriya Gramin Bank, Chhindwara (M.P.)
(20/1/1983)
Chikmagalur-Kodaga Grameena Bank, Chikmagalur (Karnataka) (28/4/1984)
Chitradurga Gramin Bank, Chitradurga (Karnataka) (5/8/1981)
Citibank N.A.
City Union Bank Ltd.
Commercial Bank of Korea Ltd.
Corporation Bank Ltd.
Cosmos Co-operative Bank Ltd., Pune (Maharashtra) (1/11/1990)
Credit Agricole Indosuez
Credit Lyonnais (28/12/1989)
Cuttack Gramya Bank, Cuttack (Orissa) (11/10/1976)
Damoh-Panna-Sagar Kshetriya Gramin Bank, Damoh (M.P.) (30/3/1981)
Dena Bank
Deutsche Bank A.G. (15/11/1980) (13/12/1986) (5/4/1988)
Development Bank of Singapore Ltd.
Development Co-operative Bank Ltd., Bombay (18/8/1988 w.e.f. 1/9/1988)
Development Credit Bank Ltd.
Devipatan Kshetriya Gramin Bank, Gonda (U.P.) (17/1/1981)
Dewas Shajapur Kshetriya Gramin Bank, Dewas (M.P.) (30/3/1982)
Dhanalakshmi Bank Ltd., Trichur (Kerala)
Dhenkanal Gramya Bank, Dhenkanal (Orissa) (12/8/1981)
Dresdner Bank AG
Dungarpur-Banswara Kshetriya Gramin Bank, Dungarpur (Rajasthan) (25/3/1984)
Durg-Rajnandgaon Gramin Bank, Rajnandgaon (M.P.) (12/3/1980)
Ellaquai Dehati Bank, Srinagar (J&K) (10/7/1979)
Emirates Commercial Bank Ltd. (6/3/1981)
Etah Gramin Bank, Etah (U.P.) (29/3/1981)
Etawah Kshetriya Gramin Bank, Etawah (U.P.) (18/3/1980)
European Asian Bank
Faizabad Kshetriya Gramin Bank, Faizabad (U.P.) (5/9/1980)
Faridkot Bhatinda Kshetriya Gramin Bank, Bhatinda (Punjab) (22/3/1986)
Farrukhabad Gramin Bank, Farrukhabad (U.P.) (29/3/1976)
Fatehpur Kshetriya Gramin Bank, Fatehpur (U.P.) (6/9/1980)
Federal Bank Ltd., Alwaye (Kerala)
Ganga Yamuna Gramin Bank, Dehradun (U.P.) (29/3/1985)
Gaur Gramin Bank, Malda (W.B.)
Giridih Kshetriya Gramin Bank, Giridih (Bihar) (30/6/1984)
Global Trust Bank Ltd. (11/10/1994)
Goa State Co-operative Bank Ltd. (15/12/1994)
Godavari Grameena Bank, Rajahmundry (A.P.) (11/4/1987)
Golconda Grameen Bank, Hyderabad (A.P.) (15/2/1985)
Gomti Gramin Bank, Jaunpur (U.P.) (30/3/1981)
Gopalganj Kshetriya Gramin Bank, Gopalganj (Bihar) (27/3/1981)
Gorakhpur Kshetriya Gramin Bank, Gorakhpur (U.P.) (30/9/1975)
Grindlays Bank P.L.C.
Gujarat State Co-operative Bank Ltd., Ahmedabad (Gujarat) (2/7/1966)
Gurdaspur Amritsar Kshetriya Gramin Vikas Bank, Gurdaspur (Punjab)
(31/3/1983)
Gurgaon Gramin Bank, Gurgaon (Haryana) (28/3/1976)
Gwalior Datia Kshetriya Gramin Bank, Datia (M.P.) (19/9/1985)
HDFC Bank Ltd. (23/1/1995)
Habib Bank Ltd.
Hadoti Kshetriya Gramin Bank, Kotah (Rajasthan) (14/10/1982)
Hanil Bank
Hardoi-Unnao Gramin Bank, Hardoi (U.P.) (7/6/1977)
Haryana Kshetriya Gramin Bank, Bhiwani (Haryana)
Haryana State Co-operative Apex Bank Ltd., Ambala at Chandigarh
Hazaribagh Kshetriya Gramin Bank, Hazaribagh (Bihar) (19/11/1984)
Himachal Gramin Bank, Mandi (H.P.) (23/12/1976)
Hindon Gramin Bank, Ghaziabad (U.P.) (28/3/1987)
Hindustan Commercial Bank Ltd., Kanpur (UP)
Hissar-Sirsa Kshetriya Gramin Bank, Hissar (Haryana) (2/10/1984)
Hongkong and Shanghai Banking Corporation Ltd. (25/1/1990)
Howrah Grameen Bank, Howrah (W.B.) (12/6/1982)
IDBI Bank Ltd.
Indian Bank
Indian Overseas Bank
Indore-Ujjain Kshetriya Gramin Bank, Ujjain (M.P.) (19/11/1984)
ING Bank N.V.
Jaipur Nagaur Aanchalik Gramin Bank, Jaipur (Rajasthan)
Jammu and Kashmir Bank Ltd., Srinagar (11/8/1971)
Jammu Rural Bank, Jammu (12/3/1976)
Jamnagar Gramin Bank, Jamnagar (Gujarat) (26/12/1978)
Jamuna Gramin Bank, Agra (U.P.) (2/12/1983)
Janata Sahakari Bank Ltd., Pune (Maharashtra) (18/8/1988 w.e.f. 1/9/1988)
Jhabua-Dhar Kshetriya Gramin Bank, Jhabua (M.P.) (20/6/1980)
Junagadh Amreli Gramin Bank, Junagadh (Gujarat)
Ka Bank Nangkyndong Ri Khasi Jaintia (Meghalaya) (29/12/1981)
Kakathiya Grameena Bank, Warangal (A.P.) (28/6/1982)
Kalahandi Anchalika Gramya Bank, Bhawanipatna (Orissa) (26/5/1980)
Kalpatharu Grameena Bank, Tumkur (Karnataka) (31/3/1982)
Kalupur Commercial Co-operative Bank Ltd., Ahmedabad (Gujarat) (18/8/1988 w.e.f. 1/9/1988)
Kamraj Rural Bank, Sopore (J&K) (16/6/1981)
Kanakadurga Grameena Bank, Gudivada (A.P.) (28/3/1986)
Kanpur Kshetriya Gramin Bank, Kanpur (U.P.) (27/2/1980)
Kapurthala Firozpur Kshetriya Gramin Bank, Kapurthala (Punjab) (30/3/1983)
Karbi N.C. Rural Bank, Diphu (Assam) (27/1/1982)
Karnataka Bank Ltd., Mangalore (Karnataka)
Karnataka State Co-operative Apex Bank Ltd., Bangalore (Karnataka) (2/7/1966)
Karur Vysya Bank
Kashi Gramin Bank, Varanasi (U.P.) (28/7/1980)
Kerala State Co-operative Bank Ltd., Trivandrum (2/7/1966)
Khasi Jaintia Rural Bank, Shillong (Meghalaya)
Kisan Gramin Bank, Budaun (U.P.) (19/5/1980)
Kolar Gramin Bank, Kolar (Karnataka) (16/2/1983)
Koraput-Panchabati Gramya Bank, Jeypore (Orissa) (13/11/1976)
Kosi Kshetriya Gramin Bank, Purnea (Bihar) (23/12/1976)
Krishna Grameena Bank, Gulbarga (Karnataka) (1/12/1978)
Krung Thai Bank Public Company Ltd.
Kshetriya Gramin Bank, Hoshangabad (20/1/1976)
Kshetriya Kisan Gramin Bank, Mainpuri (U.P.) (20/5/1980)
Kumbakon City Union Bank Ltd.
Kutch Gramin Bank, Bhuj (Gujarat) (23/12/1978)
Lakhimi Gaonlia Bank, Golaghat (Assam) (29/7/1980)
Lakshmi Commercial Bank Ltd.
Lakshmi Vilas Bank Ltd. Karur
Langpi Dehangi Rural Bank, Dhipu (Assam)
Lord Krishna Bank Ltd., Kodungallur (16/4/1971)
Madhubani Kshetriya Gramin Bank, Madhubani (Bihar) (31/3/1979)
Madhya Pradesh (Rajya Sahakari Bank Maryadit), Jabalpur (M.P.)
Madhya Pradesh State Co-operative Bank Ltd., Madras (2/7/1966)
Madras State Co-operative Bank Ltd., Madras (2/7/1966)
Magadh Gramin Bank, Gaya (Bihar) (10/11/1976)
Mahakaushal Kshetriya Gramin Bank, Narsinghpur (M.P.) (1/4/1984)
Maharashtra Co-operative Bank Ltd., Mumbai
Maharashtra State Co-operative Bank Ltd., Bombay (Incorporating the Vidarbha Co-operative Bank Ltd.) (2/7/1966)
Malaprabha Grameena Bank, Dharwar (13/8/1976)
Mallabhum Gramin Bank, Bankura (9/4/1976)
Malwa Gramin Bank, Sangrur (Punjab) (27/2/1986)
Mandla-Balaghat Kshetriya Gramin Bank, Mandia (M.P.) (14/11/1982)
Manipur Rural Bank, Imphal (Manipur) (28/5/1981)
Manjira Grameena Bank, Sangareddy, Medak, (A.P.) (31/3/1982)
Mapura Urban Co-operative Bank of Goa Ltd., Goa
Marathwada Gramin Bank, Nanded (Maharashtra) (26/8/1976)
Marudhar Kshetriya Gramin Bank, Churu (Rajasthan) (29/3/1979)
Marwar Gramin Bank, Pali (6/9/1976)
Mayurakshi Gramin Bank, Suri (West Bengal) (16/10/1976)
Mercantile Bank Ltd.
Mewar Aanchalik Gramin Bank, Udaipur (Rajasthan) (25/1/1983)
Miraj State Bank Ltd.
Mithila Kshetriya Gramin Bank, Darbhanga (Bihar) (14/3/1980)
Mitsui Taiyo Kobe Bank Ltd.
Mizoram Rural Bank, Aizawl (Mizoram) (27/9/1983)
Monghyr Kshetriya Gramin Bank, Monghyr (Bihar) (12/3/1977)
Murshidabad Gramin Bank, Berhampore (W.B.) (17/11/1984)
Muzaffarnagar Kshetriya Gramin Bank, Muzaffarnagar (U.P.) (27/7/1984)
Mysore State Co-operative Apex Bank Ltd., Bangalore (2/7/1966)
Nadia Gramin Bank, Krishnagar (W.B.) (27/8/1980)
Nagaland Rural Bank, Kohima (Nagaland) (30/3/1983)
Nagarjuna Gramin Bank, Khammam (30/4/1976)
Nalanda Gramin Bank, Biharshariff (Bihar) (31/3/1979)
Nainital Almora Kshetriya Grameen Bank, Nainital (U.P.) (26/3/1983)
Nainital Bank Ltd., Nainital (U.P.)
Nedungadi Bank Ltd., Calicut (Orissa)
Netravati Grameena Bank, Mangalore (Karnataka) (11/10/1984)
New Bank of India
New India Co-operative Bank Ltd., Bombay, Maharashtra (1/9/1990)
Nimar Kshetriya Gramin Bank, Khargone (M.P.) (26/6/1982)
North Malabar Gramin Bank, Cannanore (Kerala) (12/12/1976)
Oman International Bank S.A.O.G. (25/1/1990)
Oriental Bank of Commerce
Orissa State Co-operative Bank Ltd., Cuttack (2/7/1966)
Overseas Chinese Banking Corporation Ltd.
Palamau Kshetriya Gramin Bank, Daltonganj (Bihar) (15/5/1980)
Panchmahal Gramin Bank, Godhra (Gujarat) (30/3/1982)
Pandyan Grameen Bank, Sattur (T.N.) (9/3/1977)
Parvatiya Gramin Bank, Chamba (H.P.) (2/11/1985)
Parur Central Bank Ltd.
Patliputra Gramin Bank, Patna (Bihar) (27/11/1984)
Pinakini Grameena Bank, Nellore (A.P.)
Pithoragarh Kshetriya Gramin Bank, Pithoragarh (U.P.) (27/3/1985)
Pragjyotish Gaonlia Bank, Nalbari (Assam) (6/7/1976)
Pratapgarh Kshetriya Gramin Bank, Pratapgarh (U.P.) (25/8/1980)
Prathama Bank, Moradabad (30/9/1975)
Punjab and Sind Bank, Amritsar
Punjab Co-operative Bank, Amritsar
Punjab National Bank
Punjab State Co-operative Bank Ltd., Chandigarh
Purbanchal Bank Ltd., Gauhati
Puri Gramya Bank, Pipli (Orissa) (25/2/1976)
Rae Bareli Kshetriya Gramin Bank, Rae Bareli (U.P.) (29/3/1976)
Raigarh Kshetriya Gramin Bank, Raigarh (M.P.) (31/1/1981)
Rajasthan State Co-operative Bank Ltd., Jaipur (Rajasthan) (2/7/1966)
Rajgarh Kshetriya Gramin Bank, Rajgarh (M.P.)
Rajgarh Sehore Kshetriya Gramin Bank, Biaora (Rajgarh) (M.P.)
(23/3/1983)
Rajkot Nagrik Sahakari Bank Ltd., Bombay (18/8/1988 w.e.f. 1/9/1988)
Ranchi Kshetriya Gramin Bank, Ranchi (Bihar) (21/6/1980)
Rani Lakshmi Bai Kshetriya Gramin Bank, Jhansi (U.P.) (31/3/1982)
Ratlam Mandsaur Kshetriya Gramin Bank, Mandsaur (M.P.)
Ratnagiri Sindudurg Gramin Bank, Ratnagiri (Maharashtra) (19/11/1983)
Ratnakar Bank Ltd., Kolhapur
Rayalaseema Grameena Bank, Cuddapah (6/8/1976)
Rewa-Sidhi Gramin Bank, Rewa (M.P.) (20/12/1976)
Rupee Co-operative Bank Ltd., Pune (Maharashtra) (18/8/1988 w.e.f.
1/9/1988)
Rushikulya Gramya Bank, Berhampur (Orissa) (14/2/1981)
SBI Commercial and International Bank Ltd. (30/11/1993)
Sabarkantha-Gandhinagar Gramin Bank, Himatnagar (Gujarat) (9/8/1984)
Sagar Gramin Bank, Amtala (West Bengal), (24/9/1980)
Sahyadri Gramin Bank, Shimoga (Karnataka) (6/9/1984)
Samastipur Kshetriya Gramin Bank, Samastipur (Bihar) (12/5/1980)
Samyut Kshetriya Gramin Bank, Azamgarh (U.P.) (6/1/1976)
Sangameshwara Grameena Bank, Mahboobnagar (A.P.) (31/3/1982)
Sangli Bank
Sangli Urban Co-operative Bank Ltd., Sangli (18/8/1988 w.e.f. 1/9/1988)
Santhal Pargannas Gramin Bank, Dumka (Bihar) (30/3/1977)
Saran Kshetriya Gramin Bank, Chapra (Bihar) (28/3/1981)
Saraswat Co-operative Bank Ltd., Bombay (18/8/1988 w.e.f. 1/9/1988)
Sarayu Gramin Bank, Lakhimpur-Kheri (U.P.) (9/8/1983)
Sarda Gramin Bank, Satna (M.P.)
Satar Bank of Mysore (Karnataka)
Shahadol Kshetriya Gramin Bank, Shahadol (M.P.)
Shahjahanpur Kshetriya Gramin Bank, Shahjahanpur (U.P.) (24/3/1983)
Shamrao Vithal Co-operative Bank Ltd., Bombay (18/8/1988 w.e.f. 1/9/1988)
Sharda Gramin Bank, Satna (31/3/1979)
Shekhawati Gramin Bank, Sikar (Rajasthan) (7/10/1976)
Shivalik Kshetriya Gramin Bank, Hoshiarpur, (Punjab) (30/3/1983)
Shivpuri-Guna Kshetriya Gramin Bank, Shivpuri (M.P.) (28/3/1981)
Shri Venkateswara Grameena Bank, Chittoor (A.P.) (22/3/1981)
Singhbhum Kshetriya Gramin Bank, Chaibasa (Bihar) (31/3/1979)
Siwan Kshetriya Gramin Bank, Siwan (Bihar) (31/3/1981)
Solapur Gramin Bank, Solapur (Maharashtra) (21/1/1984)
Sonali Bank
South Indian Bank Ltd., Trichur (Kerala)
South Malabar Gramin Bank, Malappuram (Kerala) (11/12/1976)
Sravasthi Gramin Bank, Bahraich (U.P.) (4/3/1980)
Sree Anantha Grameena Bank, Anantapur (A.P.) (1/11/1979)
Sri Saraswati Grameena Bank, Adilabad (A.P.) (30/3/1982)
Sri Sathavahana Grameena Bank, Karimnagar (A.P.) (28/3/1983)
Sri Visakha Grameena Bank, Srikakulam (A.P.) (30/9/1976)
Sriganganagar Kshetriya Gramin Bank, Sriganganagar (Rajasthan)
(31/3/1984)
Srirama Grameena Bank, Nizamabad (A.P.) (21/2/1985)
Standard Chartered Bank
State Bank of Bikaner and Jaipur
State Bank of Hyderabad
State Bank of India
State Bank of Indore
State Bank of Mauritius Ltd. (12/12/1994)
State Bank of Mysore
State Bank of Patiala
State Bank of Saurashtra, Bhavnagar
State Bank of Travancore
Subansiri Gaonlia Bank, North Lakhimpur (Assam) (30/3/1982)
Sultanpur Kshetriya Gramin Bank, Sultanpur (U.P.) (8/2/1977)
Sumitomo Bank Ltd.
Surat Peoples Co-operative Bank Ltd., Surat (Gujarat) (18/8/1988 w.e.f. 1/9/1988)
Surat-Bharuch Gramin Bank, Bharuch (Gujarat) (28/2/1984)
Surendranagar-Bhavnagar Gramin Bank, Surendranagar (Gujarat) (15/12/1983)
Surguja Kshetriya Gramin Bank, Ambikapur (M.P.) (24/10/1979)
Syndicate Bank
Tamil Nadu Mercantile Bank Ltd.
Tamil Nadu State Apex Co-operative Bank Ltd., Madras (25/5/1989)
Thane Gramin Bank, Thane (Maharashtra) (30/3/1986)
Thar Aanchalik Gramin Bank, Jodhpur (Rajasthan) (31/1/1983)
Toronto-Dominion Bank
Traders’ Bank Ltd.
Tripura Gramin Bank, Agartala (21/12/1976)
Tulsi Gramin Bank, Banda (U.P.) (26/3/1981)
Tungabhadra Gramin Bank, Bellary (25/1/1976)
UCO Bank
Union Bank of India
United Bank of India
United Commercial Bank
United Industrial Bank Ltd., Calcutta
United Western Bank Ltd., Bangalore City
Uttar Banga Kshetriya Gramin Bank, Cooch-Behar (W.B.) (7/3/1977)
Uttar Pradesh Co-operative Bank Ltd., Lucknow (2/7/1966)
Vaishali Kshetriya Gramin Bank, Muzaffarpur (Bihar) (10/3/1977)
Vallalar Grama Bank, Cuddalore (Tamil Nadu) (19/6/1986)
Valsad-Dangs Gramin Bank, Bulsar (Gujarat) (23/2/1984)
Varada Grameena Bank, Kumta (Karnataka) (12/10/1984)
Vidisha-Bhopal Kshetriya Gramin Bank, Vidisha (M.P.) (31/3/1986)
Vidur Gramin Bank, Bijnor (U.P.)
Vijaya Bank Ltd., Mangalore (Karnataka)
Vindhyavasini Gramin Bank, Mirzapur (U.P.) (30/3/1983)
Visveshwaraya Grameen Bank, Mandya (Karnataka) (27/3/1985)
Vysya Bank Ltd., Bangalore City
West Bengal Provincial Co-operative Bank Ltd., Calcutta (2/7/1966)
West Bengal State Co-operative Bank Ltd., Calcutta
Yavatmal Gramin Bank, Yavatmal (Maharashtra) (29/1/1985)
——————–
1. Subs. by Noti. No. DBOD No. IBD. 937/23.3.007/2005-06 , dated 26-12-2005 (w.e.f. 1-1-2006.)
SCHEDULE III
[Repealed by Act No. 23 of 1955, w.e.f. 1/7/1955]
SCHEDULE IV
[Repealed by Act No. 62 of 1948, w.e.f. 1/1/1949]
SCHEDULE V
[Repealed by the M.O. 1937]
“CHAPTER III-E
JOINT MECHANISM
45-Y. Joint Mechanism.—
(1) Notwithstanding anything contained in this Act or the Securities and Exchange Board of India Act, 1992 (15 of 1992) or any other law for the time being in force, if any difference of opinion arises as to whether—
(i) any instrument, being derivative referred to in clause (a) or money market instrument referred to in clause (b) or repo referred to in clause (c) or reverse repo referred to in clause (d) or securities referred to in clause (e) of Section 45-U of this Act; or
(ii) any instrument, being policy of life insurance under the Insurance Act, 1938 (4 of 1938) or the rules or regulations made thereunder, or, scrips or any other securities referred to in sub-clauses (i), (ia), (ib), (ic), (id), (ie), (ii), (iia) and (iii) of clause (h) of Section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956),
is hybrid or composite instrument, having a component of money market investment or securities market instrument or a component of insurance or any other instrument referred to in clause (i) or clause (ii) and falls within the jurisdiction of the Reserve Bank of India or the Securities and Exchange Board of India established under Section 3 of the Securities and Exchange Board of India Act, 1992 (15 of 1992) or the Insurance Regulatory and Development Authority established under Section 3 of the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999) or the Pension Fund Regulatory and Development Authority constituted by the Resolution of the Government of India Number F.No. 1(6) 2007-PR, dated the 14th November, 2008, such difference of opinion shall be referred to a Joint Committee consisting of the following, namely—
| (a) the Union Finance Minister | ex officio Chairperson |
| (b) the Governor, Reserve Bank of India | ex officio Vice-Chairperson |
| (c) the Secretary, Department of Economic Affairs in the Ministry of Finance, Government of India | ex officio Member; |
| (d) the Secretary, Department of Financial Services in the Ministry of Finance, Government of India | ex officio Member; |
| (e) the Chairperson, Insurance Regulatory and Development Authority | ex officio Member |
| (f) the Chairman, Securities and Exchange Board of India | ex officio Member; |
| (g) the Chairperson, Pension Fund Regulatory and Development Authority | ex officio Member; |
(2) The Secretary, Department of Financial Services in the Ministry of Finance, Government of India shall be the convener of the meetings of the Joint Committee referred to in sub-section (1).
(3) In case of any difference of opinion referred to in sub-section (1), any Member of the Joint Committee referred to in clauses (&), (e), if) or (g) of that sub-section may make a reference to the Joint Committee.
(4) The Joint Committee shall follow such procedure as it may consider expedient and give, within a period of three months from the date of reference made under sub¬section (3), its decisions thereon to the Central Government.
(5) The decision of the Joint Committee shall be binding on the Reserve Bank of India, the Securities and Exchange Board of India, the Insurance Regulatory and Development Authority and the Pension Fund Regulatory and Development Authority.”
Section 1. Short title, extent, commencement and application.
(1) This act may be called the Employees’ State Insurance Act, 1948.
(2) It extends to the whole of India.1[***]
(3) It shall come into force on such date or dates as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and 2for different States or for different parts thereof.
(4) It shall apply, in the first instance, to all factories (including factories belonging to the Government other than seasonal factories :
3Provided that nothing contained in this sub-section shall apply to a factory or establishment belonging to or under the control of the Government whose employees are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act.
(5) The appropriate Government may, in consultation with the Corporation and 4where the appropriate Government is a State Government, with the approval of the Central Government, after giving six months’ notice of its intention of so doing by notification in the Official Gazette, extend the provision of this Act or any of them, to any other establishment or class of establishments, industrial, commercial, agriculture or otherwise :
5Provided that where the provisions of this Act have been brought into force in any part of a State, the said provisions shall stand extended to any such establishment or class of establishments within that part if the provisions have already been extended to similar establishment or class of establishments in another part of that State.
6 (6) A factory or an establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below the limit specified by or under this Act or the manufacturing process therein ceases to be carried on with the aid of power.
—————
1. The words “except the State of Jammu and Kashmir” which were subs. for “except Part B States” by Act 53 of 1951, sec. 2, have been omitted by Act 51 of 1970, sec. 2 and Sch. (w.e.f. 1-9-1971).
2. Subs. by Act 53 of 1951, sec. 2, for “for different States” (w.e.f. 6-10-1951).
3. Ins. by Act 29 of 1989, sec. 2(i) (w.e.f. 20-10-1989).
4. Subs. by Act 53 of 1951, sec. 2, for “with the approval of the Central Government” (w.e.f. 6-10-1951).
5. Ins. by Act 29 of 1989, sec. 2(ii) (w.e.f. 16-5-1990).
6. Ins. by Act 29 of 1989, sec. 2(iii) (w.e.f. 20-10-1989).
Section 2. Definitions.
In this Act, unless there is anything repugnant in the subject or context, – (1) “appropriate Government” means, in respect of establishment under the control of the Central Government or 1a railway administration or a major port or a mine oilfield, the Central Government, and in all other cases, the State Government;
2[***]
(3) “confinement” means labour resulting in the issue of a living child, or labour after twenty six weeks of pregnancy resulting in the issue of a child whether alive or dead;
(4) “contribution” means the sum of money payable to the Corporation by the principal employer in respect of an employee and includes any amount payable by or on behalf of the employee in accordance with the provisions of this Act;
3[***]
4(6) “Corporation” means the Employees State Insurance Corporation set up under this Act;
(6A) “dependant” means any of the following relatives of a deceased insured person, namely :- (i) a widow, a minor legitimate or adopted son, an unmarried legitimate or adopted 5daughter;
6(ia) a widowed mother;
(ii) if wholly dependent on the earnings of the insured person at the time of his death, a legitimate or adopted son or daughter who has attained the age of eighteen years and is infirm;
(iii) if wholly or in part dependent on the earnings of the insured person at the time of his death, –
(a) a parent other than a widowed mother,
(b) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or adopted or illegitimate if married and a minor or if widowed and a minor,
(c) a minor brother or an unmarried sister or a widowed sister if a minor,
(d) a widowed daughter-in-law,
(e) a minor child of a pre-deceased son,
(f) a minor child of a pre-deceased daughter where no parent of the child is alive, or
(g) a paternal grand-parent if no parent of the insured person is alive;
(7) “duly appointed” means appointed in accordance with the provisions of this Act or with the rules or regulations made thereunder;
7(8) “employment injury” means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India;
(9) “employee” means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and –
(i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or
(ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or
(iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service; 8and includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment 9or any person engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), or under the standing orders of the establishment; but does not include –
(a) any member of 10the Indian naval, military or air forces; or
11(b) any person so employed whose wages (excluding remuneration for overtime work) exceed 12such wages as may be prescribed by the Central Government :
Provided that an employee whose wages (excluding) remuneration for overtime work) exceed 12such wages as may be prescribed by the Central Government at any time after (and not before) the beginning of the contribution period, shall continue to be an employee until the end of that period;
(10) “exempted employee” means an employee who is not liable under this Act to pay the employees’ contribution.
13(11) “family” means all or any of the following relatives of an insured person, namely :- (i) a spouse;
(ii) a minor legitimate or adopted child dependent upon the insured person;
(iii) a child who is wholly dependent on the earnings of the insured person and who is (a) receiving education, till he or she attains the age of twenty-one years, (b) an unmarried daughter;
(iv) a child who is infirm by reason of any physical or mental abnormality or injury and is wholly dependent on the earnings of the insured person, so long as the infirmity continues;
(v) dependent parents;
(12) “factory” means any premises including the precincts thereof – (a) whereon ten or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or
(b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952) or a railway running shed;
(13) “immediate employer” in relation to employees employed by or through him, means a person who has undertaken the execution, on the premises of factory or an establishment to which this Act applies or under the supervision of the principal employer or his agent, of the whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of, any such factory or establishment, and includes a person by whom the services of an employee who has entered into a contract of service with him are temporarily lent or let on hire to the principal employer 14and includes a contractor;
15(13A) “insurable employment” means an employment in a factory or establishment to which this Act applies;
(14) “insured person” means a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is, by reason thereof, entitled to any of the benefits provided by this Act;
15(14A) “managing agent” means any person appointed or acting as the representative of another person for the purpose of carrying on such other person’s trade or business, but does not include an individual manager subordinate to an employer;
16(14AA) “manufacturing process” shall have the meaning assigned to it in the Factories Act, 1948 (63 of 1948);
(14B) “mis-carriage” means expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy but does not include any mis-carriage, the causing of which is punishable under the Indian Penal Code (45 of 1860);
(15) “occupier” of the factory shall have the meaning assigned to it in the Factories Act, 171948 (63 of 1948);
15(15A) “permanent partial disablement” means such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement : Provided that every injury specified in Part II of the Second Schedule shall be deemed to result in permanent partial disablement.
(15B) “permanent total disablement” means such disablement of a permanent nature as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement :
Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of the Second Schedule or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more.
18(15C) “power” shall have the meaning assigned to it in the Factories Act, 1948 (63 of 1948);
(16) “prescribed” means prescribed by rules made under this Act;
(17) “principal employer” means – (i) in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under 19[the Factories Act, 1948 (63 of 1948)], the person so named;
(ii) in any establishment under the control of any department of any Government in India, the authority appointed by such Government in this behalf or where no authority is so appointed, the head of the department;
(iii) in any other establishment, any person responsible for the supervision and control of the establishment;
(18) “regulation” means a regulation made by the Corporation;
(19) “Schedule” means a Schedule to this Act;
20(19A) “seasonal factory” means a factory which is exclusively engaged in one or more of the following manufacturing processes, namely, cotton ginning, cotton or jute pressing, decortications of ground-nuts, the manufacture of coffee, indigo, lac, rubber, sugar (including gur) or tea or any manufacturing process which is incidental to or connected with any of the aforesaid processes and includes a factory which is engaged for a period not exceeding seven months in a year –
(a) in any process of blending, packing or repacking of tea or coffee; or
(b) in such other manufacturing process as the Central Government may, by notification in the Official Gazette, specify;
(20) “sickness” means a condition which requires medical treatment and attendance and necessitates abstention from work on medical grounds;
(21) “temporary disablement” means a condition resulting from an employment injury which requires medical treatment and renders an employee, as a result of such injury, temporarily incapable of 21[doing the work which he was doing prior to or at the time of the injury];
(22) “wages” means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes 22[any payment to an employee in respect of any period of authorised leave, lock-out, strike which is not illegal or lay-off and] other additional remuneration, if any, 23[paid at intervals not exceeding two months], but does not include—
(b) any travelling allowance or the value of any traveling concession;
(c) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or
(d) any gratuity payable on discharge.
24(23) “wage period” in relation to an employee means the period in respect of which wages are ordinarily payable to him whether in terms of the contract of employment, express or implied or otherwise;
25(24) all other words and expressions used but not defined in this Act and defined in the Industrial Disputes Act, 1947 (14 of 1947), shall have the meanings respectively assigned to them in that Act.
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1. Subs. by the A.O. 1950, for “a federal railway”.
2. Clause (2) omitted by Act 29 of 1989, sec. 3(i) (w.e.f. 1-2-1991).
3. Clause (5) omitted by Act 29 of 1989, sec. 3(ii) (w.e.f. 1-2-1991).
4. Ins. by Act 44 of 1966, sec. 2 (w.e.f. 28-1-1968).
5. Subs. by Act 29 of 1989, sec. 3(iii), for “daughter or a widowed mother, and” (w.e.f. 20-10-1989).
6. Ins. by Act 29 of 1989, sec. 3(iii) (w.e.f. 20-10-1989).
7. Subs. by Act 44 of 1966, sec. 2, for the original clause (w.e.f. 28-1-1968).
8. Subs. by Act 44 of 1966, sec. 2, for “but does not include” (w.e.f. 28-1-1968).
9. Subs. by Act 29 of 1989, sec. 3(iv), for “but does not include” (w.e.f. 20-10-1989).
10. Subs. by the A.O. 1950, for “His Majesty’s”.
11. Subs. by Act 44 of 1966, sec. 2, for the original sub-clause (w.e.f. 28-1-1968).
12. Subs. by Act 29 of 1989, sec. 3(iv), for “one thousand and six hundred rupees a month” (w.e.f. 12-1991).
13. Subs. by Act 29 of 1989, sec. 3(v), for clauses (11) and (12) (w.e.f. 20-10-1989).
14. Added by Act 29 of 1989 sec. 3(vi) (w.e.f. 20-10-1989).
15. Ins. by Act 44 of 1966, sec. 2 (w.e.f. 28-1-1968).
16. Ins. by Act 29 of 1989, sec. 3(vii) (w.e.f. 20-10-1989).
17. Subs. by Act 53 of 1951, sec. 3, for “1934” (w.e.f. 6-10-1951).
18. Ins. by Act 29 of 1989, sec. 3(ix) (w.e.f. 20-10-1989).
19. Subs. by Act 53 of 1951, sec. 3, for “clause (e) of sub-section (1) of section 9 of the Factories Act, 1934” (w.e.f. 6-10-1951).
20. Ins. by Act 29 of 1989, sec. 3(ix) (w.e.f. 20-10-1989).
21. Subs. by Act 44 of 1966, sec. 2, for “work” (w.e.f. 28-1-1968).
22. Ins. by Act 44 of 1966, sec. 2 (w.e.f. 28-1-1968).
23. Subs. by Act 53 of 1951, sec. 3, for “paid at regular intervals after the last day of the wage period” (w.e.f. 6-10-1951).
24. Subs. by Act 45 of 1984, sec. 2, for clause (23) (w.e.f. 27-1-1985).
25. Subs. by Act 44 of 1966, sec. 2, for the original clause (w.e.f. 28-1-1968).
Section 2A. Registration of factories and establishments.
1REGISTRATION OF FACTORIES AND ESTABLISHMENTS. Every factory or establishment to which this Act applies shall be registered within such time and in such manner as may be specified in the regulations made in this behalf.
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1. Ins. by Act 44 of 1966, sec. 3 (w.e.f. 28-1-1968).
Section 3. Establishment of employees’ state insurance corporation.
(1) With effect from such date* as the Central Government may, by notification in the Official Gazette, appoint in this behalf, there shall be established for the administration of the scheme of Employees’ State Insurance in accordance with the provisions of this Act a Corporation to be known as the Employees’ State Insurance Corporation.
(2) The Corporation shall be a body corporate by the name of Employees’ State Insurance Corporation having perpetual succession and a common seal and shall by the said name sue and be sued.
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* 1st October, 1948, vide Gazette of India, 1948, Extra., p. 1441.
Section 4. Constitution of corporation.
The Corporation shall consist of the following members, namely :
1(a) a Chairman to be 2appointed by the Central Government;
(b) a Vice-Chairman to be appointed by the Central Government;
(c) not more than five persons to be appointed by the Central Government.3[***]
(d) one person each representing each of the 4States in which this Act is in force to be appointed by the State Government concerned;
(e) one person to be 2appointed by the Central Government to represent the 5Union territories;
(f)6 persons representing employers to be appointed by the Central Government in consultation with such organisations of employers as may be recognised for the purpose by the Central Government;
(g)6 ten persons representing employees to be appointed by the Central Government in consultation with such organisations of employees as may be recognised for the purpose by the Central Government;
(h) two persons representing the medical profession to be 2appointed by the Central Government in consultation with such organisations of medical practitioners as may be recognised for the purpose by the Central 7Government;
8(i) three members of Parliament of whom two shall be members of the House of the People (Lok Sabha) and one shall be a member of the Council of States (Rajya Sabha) elected respectively by the members of the House of the people and the members of the Council of States; and
(j) the Director General of the Corporation, ex officio.
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1. Subs. by Act 44 of 1966, sec. 4, for the original clauses (a) and (b) (w.e.f. 17-6-1967).
2. Subs. by Act 29 of 1989, sec. 4, for “nominated” and “nomination” (w.e.f. 20-10-1989).
3. The words “of whom at least three shall be officials of the Central Government” omitted by Act 44 of 1966, sec. 4 (w.e.f. 17-6-1967).
4. Subs. by A.O. (No. 3) 1956, for “Part A States and B States”.
5. Subs. by the A.O. (No. 3) 1956, for “Part C States”.
6. Subs. by Act 29 of 1989, sec. 4, for “five” (w.e.f. 20-10-1989).
7. The word “and” omitted by Act 44 of 1966, sec. 4 (w.e.f. 17-6-1967).
8. Subs. by Act 44 of 1966, sec. 4, for clause (i) (w.e.f. 17-6-1967).
Section 5. Term of office of members of the corporation.
(1) Save as otherwise expressly provided in this Act, the term of office of members of the Corporation, other than 1the members referred to in clauses (a), (b), (c), (d) and (e) of section 4 and the ex officio member, shall be four years commencing from the date on which their 2appointment or election is notified :
Provided that a member of the corporation shall, notwithstanding the expiry of the said period of four years, continue to hold office until the 2appointment or election of his successor is notified.
(2) The members of the Corporation referred to in clauses 3(a), (b), (c), (d) and (e) of section 4 shall hold office during the pleasure of the Government 3appointing them.
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1. Subs. by Act 44 of 1966, sec. 5, for certain words (w.e.f. 17-6-1967).
2. Subs. by Act 29 of 1989, sec. 4, for “nominating”, “re-nomination” and “nominated” (w.e.f. 20-10-1989).
3. Subs. by Act 44 of 1966, sec. 5, for “(c), (d) and (e)” (w.e.f. 17-6-1967).
Section 6. Eligibility for re-nomination or re-election.
An outgoing member of the Corporation, the Standing Committee, or the Medical Benefit Council shall be eligible for 1reappointment or re-election as the cases may be.
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1. Subs. by Act 29 of 1989, sec. 4, for “nominating”, “re-nomination” and “nominated” (w.e.f. 20-10-1989).
Section 7. Authentication of orders, decisions, etc.
All orders and decisions of the Corporation shall be authenticated by the signature of the Director General of the Corporation and all other instruments issued by the Corporation shall be authenticated by the signature of the Director General or such other officer of the Corporation as may be authorised by him.
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1. Subs. by Act 44 of 1966, sec. 6, for section 7 (w.e.f. 17-6-1967).
Section 8. Constitution of standing committee.
A Standing Committee of the Corporation shall be constituted from among its members, consisting of –
(a) a Chairman, 1[appointed] by the Central Government;
(b) three members of the Corporation, 1[appointed] by the Central Government];
2[(bb) three members of the Corporation representing such three State Governments thereon as the Central Government may, by notification in the Official Gazette, specify from time to time;]
(c) 3[eight] members elected by the Corporation as follows:—
4[***]
(ii) 5[three] members from among the members of the corporation representing employers;
(iii) 5[three] members from among the members of the Corporation representing employees;
(iv) one member from among the members of the Corporation representing the medical profession; and
(v) one member from among the members of the Corporation elected by 6[Parliament];
7[(d) the Director General of the Corporation, ex officio].
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1. Subs. by Act 29 of 1989, sec. 4, for “nominating”, “re-nomination” and “nominated” (w.e.f. 20-10-1989).
2. Ins. by Act 53 of 1951, sec. 5 (w.e.f. 6-10-1951).
3. Subs. by Act 44 of 1966, sec. 7, for “six” (w.e.f. 17-6-1967).
4. Sub-clause (i) omitted by Act 53 of 1951, sec. 5 (w.e.f. 6-10-1951).
5. Subs. by Act 44 of 1966, sec. 7, for “two” (w.e.f. 17-6-1967).
6. Subs. by the A.O. 1950, for “the Central Legislature”.
7. Ins. by Act 44 of 1966, sec. 7 (w.e.f. 17-6-1967).
Section 9. Term of office of members of standing committee.
(1) Save as otherwise expressly provided in this Act, the term of office of a member of the Standing Committee, other than a member referred to in clause (a) or 1Clause (b) or clause (bb) of section 8, shall be two years from the date on which his election is notified :
Provided that a member of the Standing Committee, shall, notwithstanding the expiry of the said period of two years, continue to hold office until the election of his successor is notified :
Provided further that a member of the Standing Committee shall cease to hold office when he ceases to be a member of the Corporation.
(2) A member of the Standing Committee referred to in clause (a) or clause (b) or clause (bb) of section 8 shall hold office during the pleasure of the Central Government.
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1. Subs. by Act 53 of 1951, sec. 6, for “clause (b)” (w.e.f. 6-10-1951).
Section 10. Medical benefit council.
(1) The Central Government shall constitute a Medical Benefit Council consisting of – (a) the Director General, Health Services, ex officio, as Chairman;
(b) a Deputy Director-General, Health Services, to be appointed by the Central Government;
(c) the Medical Commissioner of the Corporation, ex officio;
(d) one member each representing each of the 2[3[States (other than Union territories)] in which this Act is in force] to be 1[appointed] by the State Government concerned;
(e) three members representing employers to be appointed by the Central Government in consultation with such organisations of employers as may be recognised for the purpose by the Central Government;
(f) three members representing employees to be appointed by the Central Government in consultation with such organisations of employees as may be recognised for the purpose by the Central Government; and
(g) three members, of whom not less than one shall be a woman, representing the medical profession, to be appointed by the Central Government in consultation with such organisations of medical practitioners as may be recognised for the purpose by the Central Government.
(2) Save as otherwise expressly provided in this Act, the term of office of a member of the Medical Benefit Council, other than a member referred to in any of the clause (a) to (d) of sub-section (1), shall be four years from the date on which his appointment is notified :
5[Provided that a member of the Medical Benefit Council, shall, notwithstanding the expiry of the said period of four years continue to hold office until the 4[appointment] of his successor is notified].
(3) A member of the Medical Benefit Council referred to in clauses (b) and (d) of sub-section (1) shall hold office during the pleasure of the Government appointing him.
—————
1. Subs. by Act 29 of 1989, sec. 4 for “nominated”, “nominations” and “nominating” (w.e.f. 20-10-1989).
2. Subs. by Act 53 of 1951, sec. 7, for “Part A States” (w.e.f. 6-10-1951).
3. Subs. by the A.O. (No. 3) 1956, for “Part A States or Part B States”.
4. Subs. by Act 29 of 1989, sec. 4, for “nominated”, “nomination” and “nominating” (w.e.f. 20-10-1989).
5. Added by Act 44 of 1966, sec. 8 (w.e.f. 17-6-1967).
Section 11. Resignation of membership.
A member of the Corporation, the Standing Committee or the Medical Benefit Council may resign his office by notice in writing to the Central Government and his seat shall fall vacant on the acceptance of the resignation by that Government.
Section 12. Cessation of membership.
1(1) A member of the Corporation, the Standing Committee or the Medical Benefit Council shall cease to be a member of that body if he fails to attend three consecutive meetings thereof :
Provided that the Corporation, the Standing Committee or the Medical Benefit Council, as the case may be, may, subject to rules made by the Central Government in this behalf, restore him to membership.
2(2) Where in the opinion of the Central Government any person 3appointed or elected to represent employers, employees or the medical profession on the Corporation, the Standing Committee or the Medical Benefit Council, as the case may be, has ceased to represent such employers, employees or the medical profession, the Central Government may, by notification in the Official Gazette, declare that with effect from such date as may be specified therein such person shall cease to be a member of the Corporation, the Standing Committee or the Medical Benefit Council, as the case may be.
4(3) A person referred to in clause (i) of section 4 shall cease to be a member of the Corporation, when he ceases to be a member of Parliament.
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1. Section 12 re-numbered as sub-section (1) thereof by Act 53 of 1951, sec. 8 (w.e.f. 6-10-1951).
2. Ins. by Act 53 of 1951, sec. 8 (w.e.f. 6-10-1951).
3. Subs. by Act 29 of 1989, sec. 4, for “nominated”, “nomination” and “nominating” (w.e.f. 20-10-1989).
4. Ins. by Act 44 of 1966, sec. 9 (w.e.f. 17-6-1967).
Section 13. Disqualification.
A person shall be disqualified for being chosen as or for being a member of the Corporation, the Standing Committee or the Medical Benefit Council –
(a) if he is declared to be of unsound mind by a competent Court; or
(b) if he is an undercharged insolvent; or
(c) if he has directly or indirectly by himself or by his partner any interest in a subsisting contract with, or any work being done for, the Corporation except as a medical practitioner or as a shareholder (not being a Director) of a company; or
(d) if before or after the commencement of this Act, he has been convicted of an offence involving moral turpitude.
Section 14. Filling of vacancies.
(1) Vacancies in the office of 1appointed or elected members of the Corporation, the Standing Committee and the Medical Benefit Council shall be filled by appointment or election, as the case may be.
(2) A member of the Corporation, the Standing Committee or the Medical Benefit Council appointed or elected to fill a casual vacancy shall hold office only so long as the member in whose place he is 2appointed or elected would have been entitled to hold office if the vacancy had not occurred.
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1. Subs. by Act 29 of 1989, sec. 4, for “nominated”, “nomination” and “nominating” (w.e.f. 20-10-1989).
2. Subs. by Act 29 of 1989, sec. 4, for “nominated” and “nomination” (w.e.f. 20-10-1989).
Section 15. Fees and allowances.
Members of the Corporation, the Standing Committee and the Medical Benefit Council shall receive such fees and allowances as may from time to time be prescribed by the Central Government.
Section 16. Principal officers.
(1) The Central Government may, in consultation with the Corporation, appoint a Director General and a Financial Commissioner.
(2) The Director General shall be the Chief Executive Officer of the Corporation.
(3)2 The Director General and the Financial Commissioner shall be whole time officers of the Corporation and shall not undertake any work unconnected with their office without the sanction of the Central Government 3and of the Corporation.
(4) 2The Director General or the Financial Commissioner shall hold office for such period, not exceeding five years, as may be specified in the order appointing him. An outgoing Director General or the Financial Commissioner shall be eligible for reappointment if he is otherwise qualified.
(5) 2The Director General or the Financial Commissioner shall receive such salary and allowances as may be prescribed by the Central Government.
(6) A person shall be disqualified from being appointed as or for being the Director General or the Financial Commissioner if he is subject to any of the disqualification specified in section 13.
(7) The Central Government may at any time remove the 4Director General or the Financial Commissioner from office and shall do so if such removal is recommended by a resolution of the Corporation passed at a special meeting called for the purpose and supported by the votes of not less than two-thirds of the total strength of the Corporation.
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1. Subs. by Act 29 of 1989, sec. 6, for sub-section (1) (w.e.f. 20-10-1989).
2. Subs. by Act 29 of 1989, sec. 6, for “The Principal Officers” (w.e.f. 20-10-1989).
3. Ins. by Act 44 of 1966, sec. 10 (w.e.f. 17-6-1967).
4. Subs. by Act 29 of 1989, sec. 6, for “A Principal Officer” (w.e.f. 20-10-1989).
Section 17. Staff.
(1) The Corporation may employ such other staff of officers and servants as may be necessary for the efficient transaction of its business provided that the sanction of the Central Government shall be obtained for the creation of any post 1[the maximum monthly salary of which 2[exceeds such salary as may be prescribed by the Central Government].
3[(2) (a) The method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the Corporation shall be such as may be specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the Central Government drawing corresponding scales of pay:
Provided that where the Corporation is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government.
(b) In determining the corresponding scales of pay of the members of the staff under clause (a), the Corporation shall have regard to the educational qualifications, method of recruitment, duties and responsibilities of such officers and employees under the Central Government and in case of any doubt, the Corporation shall refer the matter to the Central Government whose decision thereon shall be final.]
(3) Every appointment to 4[posts 5[(other than medical posts)] corresponding to 6[Group A and Group B] posts under the Central Government], shall be made in consultation with the 7[Union] Public Service Commission:
Provided that this sub-section shall not apply to an officiating or temporary appointment for 8[a period] not exceeding one year:
9[Provided further that any such officiating or temporary appointment shall not confer any claim for regular appointment and the services rendered in that capacity shall not count towards seniority or minimum qualifying service specified in the regulations for promotion to next higher grade.]
9([4) If any question arises whether a post corresponds to a 6[Group A and Group B] post under the Central Government, the question shall be referred to that Government whose decision thereon shall be final.]
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1. Subs. by Act 38 of 1975, sec. 3, for certain words (w.e.f. 1-9-1975).
2. Subs by Act 29 of 1989, sec. 7, for “exceeds two thousand and two hundred fifty rupees” (w.e.f. 1-2-1991).
3. Subs. by Act 29 of 1989, sec. 7, for sub-section (2) (w.e.f. 8-11-1989).
4. Subs. by Act 44 of 1966, sec. 11, for “post carrying a maximum monthly pay to five hundred rupees and above” (w.e.f. 17-6-1967).
5. Ins. by Act 29 of 1989, sec. 7(iii)(a) (w.e.f. 16-5-1990).
6. Subs. by Act 45 of 1984, sec. 3, for “Class I or Class II” (w.e.f. 27-1-1985).
7. Subs. by the A.O. 1950, for “Federal”.
8. Subs. by Act 29 of 1989, sec. 7(iii), for “an aggregate period” (w.e.f. 20-10-1989).
9. Ins. by Act 29 of 1989, sec. 7(iii) (w.e.f. 20-10-1989).
Section 18. Powers of the standing committee.
(1) Subject to the general superintendence and control of the Corporation, the Standing Committee shall administer the affairs of the Corporation and may exercise any of the powers and perform any of the functions of the Corporation.
(2) The Standing Committee shall submit for the consideration and decision of the Corporation all such cases and matters as may be specified in the regulations made in this behalf.
(3) The Standing Committee may, in its discretion, submit any other case or matter for the decision of the Corporation.
Section 19. Corporation’s power to promote measures for health, etc., of insured persons.
The Corporation may, in addition to the scheme of benefits specified in this Act, promote measures for the improvement of the health and welfare of insured persons and for the rehabilitation and re-employment of insured persons who have been disabled or injured and may incur in respect of such measures expenditure from the funds of the Corporation within such limits as may be prescribed by the Central Government.
Section 20. Meetings of corporation, standing committee and medical benefit council.
Subject to any rules made under this Act, the Corporation, the Standing Committee and the Medical Benefit Council shall meet at such times and places and shall observe such rules or procedure in regard to transaction of business at their meetings as may be specified in the regulations made in this behalf.
Section 21. Super session of the corporation and standing committee.
(1) If in the opinion of the Central Government, the Corporation or the Standing Committee persistently makes default in performing the duties imposed on it by or under this Act or abuses its powers, that Government may, by notification in the Official Gazette, supersede the Corporation, or in the case of the Standing Committee, supersede, in consultation with the Corporation, the Standing Committee :
Provided that before issuing a notification under this sub-section the Central Government shall give a reasonable opportunity to the Corporation or the Standing Committee, as the case may be, to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the Corporation or the Standing Committee, as the case may be.
(2) Upon the publication of a notification under sub-section (1) superseding the Corporation or the Standing Committee, all the members of the Corporation or the Standing Committee, as the case may be, shall, as from the date of such publication, be deemed to have vacated their offices.
(3) When the Standing Committee has been superseded, a new Standing Committee shall be immediately constituted in accordance with section 8.
(4) When the Corporation has been superseded, the Central Government may – (a) immediately appoint or cause to be 1appointed or elected new members to the Corporation in accordance with section 4 and may constitute a new Standing Committee under section 8;
(b) in its discretion, appoint such agency, for such period as it may think fit, to exercise the powers and perform the functions of the corporation and such agency shall be competent to exercise all the powers and perform all the functions of the Corporation.
(5) The Central Government shall cause a full report of any action taken under this section and the circumstances leading to such action to be laid before 2Parliament at the earliest opportunity and in any case not later than three months from the date of the notification superseding the Corporation or the Standing Committee, as the case may be.
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1. Subs. by Act 29 of 1989, sec. 4, for “nominate” and “nominated” (w.e.f. 20-10-1989).
2. Subs. by A.O. 1950, for “the Central Legislature”.
Section 22. Duties of medical benefits council.
The Medical Benefit Council shall –
(a) advise 1the Corporation and the Standing Committee on matters relating to the administration of medical benefit, the certification for purposes of the grant of benefits and other connected matters;
(b) have such powers and duties of investigation as may be prescribed in relation to complaints against medical practitioners in connection with medical treatment and attendance; and
(c) perform such other duties in connection with medical treatment and attendance as may be specified in the regulations.
—————
1. Subs. by Act 53 of 1951, sec. 9, for “the Corporation, the Standing Committee and the Medical Commissioner” (w.e.f. 6-10-1951).
Section 23. Duties of director general and the financial commissioner.
The Director General and the Financial Commissioner shall exercise such powers and discharge such duties as may be prescribed.
They shall also perform such other functions as may be specified in the regulations.
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1. Subs. by Act 29 of 1989, sec. 8, for “Principal Officers” (w.e.f. 20-10-1989).
Section 24. Acts of corporation, etc., not invalid by reason of defect in constitution, etc.
No act of the Corporation, the Standing Committee or the Medical Benefit Council shall be deemed to be invalid by reason of any defect in the constitution of the Corporation, the Standing Committee or the Medical Benefit Council, or on the ground that any member thereof was not entitled to hold or continue in office by reason of any disqualification or of any irregularity in his 1appointment or election, or by reason of such act having been done during the period of any vacancy in the office of any member of the Corporation, the Standing Committee or the Medical Benefit Council.
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1. Subs. by Act 29 of 1989, sec. 4, for “nomination” (w.e.f. 20-10-1989).
Section 25. Regional boards, local committees, regional and local medical benefit councils.
The Corporation may appoint Regional Boards, Local Committees and Regional and Local Medical Benefit, Councils in such areas and in such manner, and delegate to them such powers and functions, as may be provided by the regulations.
Section 26. Employees’ state insurance fund.
(1) All contributions paid under this act and all other moneys received on behalf of the Corporation shall be paid into a fund called the Employees’ State Insurance Fund which shall be held and administered by the Corporation for the purposes of this Act.
(2) The Corporation may accept grants, donations and gifts from the Central or any State Government,1 local authority, or any individual or body whether incorporated or not, for all or any of the purposes of this Act.
2(3) Subject to the other provisions contained in this Act and to any rules or regulations made in this behalf, all moneys accruing or payable to the said Fund shall be paid into the Reserve Bank of India or such other bank as may be approved by the Central Government to the credit of an account styled the Account of the Employees’ State Insurance Fund.
(4) Such account shall be operated on by such officer as may be authorised by the Standing Committee with the approval of the Corporation.
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1. The words “Part B State,” omitted by Act 53 of 1951, sec. 10 (w.e.f. 6-10-1951).
2. Subs. by Act 53 of 1951, sec. 10, for sub-section (3) (w.e.f. 6-10-1951).
Section 27. Grant by the central government.
[Rep. by the Employees’ State Insurance (Amendment) Act</em>,<em> 1966 (44 of 1966), sec. 12 (w.e.f. 17-6-1967).
Section 8. Purposes for which the fund may be expended.
Subject to the provisions of this Act and of any rules made by the Central Government in that behalf, the Employees’ State Insurance Fund shall be expended only for the following purposes, namely :
(i) payment of benefits and provision of medical treatment and attendance to insured persons and, where the medical benefit is extended to their families, the provision of such medical benefit to their families, in accordance with the provisions of this Act and defraying the charges and costs in connection therewith;
(ii) payment of fees and allowances to members of the Corporation, the Standing Committee and the Medical Benefit Council, the Regional Boards, Local Committees and Regional and Local Medical Benefit Councils;
(iii) payment of salaries, leave and joining time allowances, traveling and compensatory allowances, gratuities and compassionate allowances, pensions, contributions to provident or other benefit fund of officers and servants of the Corporation and meeting the expenditure in respect of offices and other services set up for the purpose of giving effect to the provisions of this Act;
(iv) establishment and maintenance of hospitals, dispensaries and other institutions and the provisions of medical and other ancillary services for the benefit of insured persons and where the medical benefit is extended to their families, their families;
(v) payment of contributions to any State Government, 1[***] local authority or any private body or individual, towards the cost of medical treatment and attendance provided to insured persons and, where the medical benefit is extended to their families, their families, including the cost of any building and equipment, in accordance with any agreement entered into by the Corporation;
(vi) defraying the cost (including all expenses of auditing the accounts of the Corporation and of the valuation of its assets and liabilities;
(vii) defraying the cost (including all expenses) of the Employees’ Insurance Courts set up under this Act;
(viii) payment of any sums under any contract entered into for the purposes of this Act by the Corporation or the Standing Committee or by any officer duly authorised by the Corporation or the Standing Committee in that behalf;
(ix) payment of sums under any decree, order or award of any Court or Tribunal against the Corporation or any of its officers or servants for any act done in the execution of his duty or under a compromise or settlement of any suit or other legal proceeding or claim instituted or made against the Corporation;
(x) defraying the cost and other charges of instituting or defending any civil or criminal proceedings arising out of any action taken Under this Act;
(xi) defraying expenditure, within the limits prescribed, on measures for the improvement of the health and welfare of insured persons and for the rehabilitation and re-employment of insured persons who have been disabled or injured; and
(xii) such other purposes as may be authorised by the Corporation with the previous approval of the Central Government.
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1. The words “Part B State”, omitted by Act 53 of 1951, sec. 11 (w.e.f. 6-10-1951).
Section 28A. Administrative expenses.
The types of expenses which may be termed as administrative expenses and the percentage of the income of the Corporation which may be spent for such expenses shall be such as may be prescribed by the Central Government and the Corporation shall keep its administrative expenses within the limit so prescribed by the Central Government.
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1. Ins. by Act 29 of 1989, sec. 9 (w.e.f. 1-5-1997).
Section 29. Holding of property, etc.
(1) The Corporation may, subject to such conditions as may be prescribed by the Central Government, acquire and hold property both movable and immovable, sell or otherwise transfer any movable or immovable property which may have become vested in or have been acquired by it and do all things necessary for the purposes for which the Corporation is established.
(2) Subject to such conditions as may be prescribed by the Central Government, the Corporation may from time to time, invest any moneys which are not immediately required for expenses properly defrayable under this Act and may, subject as aforesaid, from time to time re-invest or realise such investments.
(3) The Corporation may, with the previous sanction of the Central Government and on such terms as may be prescribed by it, raise loans and take measures for discharging such loans.
(4) The Corporation may constitute for the benefit of its staff or any class of them, such provident or other benefit fund as it may think fit.
Section 30. Vesting of the property in the corporation.
All property acquired before the establishment of the Corporation shall vest in the Corporation and all income derived and expenditure incurred in this behalf shall be brought into the books of the Corporation.
Section 31. Expenditure by central government to be treated as a loan.
[Rep. by the Employees’ State Insurance (Amendment) Act, 1966 (44 of 1966), sec. 12 (w.e.f. 17-6-1967)].
Section 32. Budget estimates.
The Corporation shall in each year frame a budget showing the probable receipts and the expenditure which it proposes to incur during the following year and shall submit a copy of the budget for the approval of the Central Government before such date as may be fixed by it in that behalf.
The budget shall contain provisions adequate in the opinion of the Central Government for the discharge of the liabilities incurred by the Corporation and for the maintenance of a working balance.
Section 33. Accounts.
The Corporation shall maintain correct accounts of its income and expenditure in such form and in such manner as may be prescribed by the Central Government.
Section 34. AUDIT.
(1) The accounts of the Corporation shall be audited annually by the Comptroller and Auditor-General of India and any expenditure incurred by him in connection with such audit shall be payable by the Corporation to the Comptroller and Auditor-General of India.
(2) The Comptroller and Auditor-General of India and any person appointed by him in connection with the audit of the accounts of the Corporation shall have the same rights and privileges and authority in connection with such audit as the Comptroller and Auditor-General has, in connection with the audit of Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Corporation.
(3) The accounts of the Corporation as certified by the Comptroller and Auditor-General of India or any other person appointed by him in this behalf together with the audit report thereon shall be forwarded to the Corporation which shall forward the same to the Central Government along with its s on the report of the Comptroller and Auditor-General.
1. Subs. by Act 29 of 1989, sec. 10, for section 34 (w.e.f. 20-10-1989).
Section 35. Annual report.
The Corporation shall submit to the Central Government an annual report of its work and activities.
Section 36. Budget, audited accounts and the annual report to be placed before parliament.
The annual report, the audited accounts of the Corporation, 1[together with 2[the report of the Comptroller and Auditor-General of India thereon and the s of the Corporation on such report under section 34, and the budget as finally adopted by the Corporation shall be placed before 3[Parliament] 4[***]..
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1. Ins. by Act 44 of 1986, sec. 13 (w.e.f. 17-6-1967).
2. Subs. by Act 29 of 1989, sec. 11, for “auditor’s report thereon” (w.e.f. 20-10-1989).
3. Subs. by the A.O. 1950, for “the Central Legislature”.
4. The words “and published in the Gazette of India” omitted by Act 29 of 1989, sec. 11 (w.e.f. 20-10-1989).
Section 37. Valuation of assets and liabilities.
The Corporation shall, at intervals of five years, have a valuation of its assets and liabilities made by a valuer appointed with the approval of the Central Government :
Provided that it shall be open to the Central Government to direct a valuation to be made at such other times as it may consider necessary.
Section 38. All employees to be insured.
Subject to the provisions of the Act, all employees in factories, or establishments to which this Act applies shall be insured in the manner provided by this Act.
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The Employees’ State Insurance Act is aimed at conferring benefits on employees in case of sickness, maternity and employment injury. Section 38 of the Act mandates that all the employees in the factories or establishments shall be insured. The initial and vital endeavour should be to identify the beneficiaries or the employees for insurance; Transport Corporation of India v. Employees’ State Insurance Corporation, AIR 2000 SC 238.
Section 39. Contributions.
(1) The contribution payable under this Act in respect of an employee shall comprise contribution payable by the employer (hereinafter referred to as the employer’s contribution) and contribution payable by the employee (hereinafter referred to as the employee’s contribution) and shall be paid to the Corporation.
1(2) The contributions shall be paid at such rates as may be prescribed by the Central Government
Provided that the rates so prescribed shall not be more than the rates which were in force immediately before the commencement of the Employees’ State Insurance (Amendment) Act, 1989.
2[(3) The wage period in relation to an employee shall be the unit in respect of which all contributions shall be payable under this Act.]
(4) The contributions payable in respect of each 3[wage period] shall ordinarily fall due on the last day of the 3[wage period], and where an employee is employed for part of the 3[wage period], or is employed under two or more employers during the same 3[wage period], the contributions shall fall due on such days as may be specified in the regulations.
4(5) (a) If any contribution payable under this Act is not paid by the principal employer on the date on which such contribution has become due, he shall be liable to pay simple interest at the rate of twelve per cent per annum or at such higher rate as may be specified in the regulations till the date of its actual payment :
Provided that higher interest specified in the regulations shall not exceed the lending rate of interest charged by any scheduled bank.
(b) Any interest recoverable under clause (a) may be recovered as an arrear of land revenue or under section 45C to section 45-I.
Explanation : In this sub-section, “scheduled bank” means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934).
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(i) No contribution need to be made on the incentive offered to the employees for a limited period and was paid at staggered intervals; Employees State Insurance Corpn., Hyderabad v. A.P. Electrical Equipment Corporation a Unit of ECE Industries Ltd., Visakhapattnam, 2005 LLR 466.
(ii) Payment of statutory interest on delayed deposit of E.S.I. contribution cannot be waived even when the E.I. Court has granted payment by instalments; Employee State Insurance Corpn. v. Bagsvig, 2005 LLR 983.
(iii) The liability to pay the entire contribution under section 39 is of the employer; Regional Director, Employees’ State Insurance Corporation v. Fashion Fabrics, (1990) 2 CLR 844 (Ker).
(iv) Contribution is payable by the employer even in respect of casual labourers under section 39(3) and (4); Employees’ State Insurance Corporation v. Jaipur Enterprises, (1988) 56 FLR 207 (Raj).
(v) The employer is statutorily bound to contribute, whether he has sufficient resources or not; South India Viscose Co-op. Stores Ltd. v. Regional Director, Employees’ State Insurance Corporation, (1986) 68 FLR 329 (Mad).
(vi) Contribution for the past period is recoverable even if the employees had not availed the benefit of insurance; Employees’ State Insurance Corporation v. Hotel Kalpaka International, 1993 LLR 177 (SC).
(vii) Contributions are to be paid only on the wages payable to the eligible employees; Employees’ State Insurance Corporation v. Vijayamohini Mills, (1990) 76 FJR 246 (Ker).
(viii) Only wages paid to the employees can be reckoned for calculation of contributions; Employees’ State Insurance Corporation v. Ram Lal Textiles, (1990) 61 FLR 298.
(ix) The E.S.I.C. must hear an employer before determining the contribution to be payable by him if there is any dispute regarding such liability; Rameshwar Jute Mills Ltd. v. Employees’ State Insurance Corporation, AIR 1986 Pat 228.
(x) The employer can claim refund of ESI contributions which have been deposited by mistake; Anil Textile Industry v. Employees’ State Insurance Corporation, (1992) 64 FLR 856 (Raj).
(xi) Section 39(5)(a) applies where the employer fails to make contributions. If such failure is on account of circumstances beyond his control or if the circumstances make it impossible for the employer to make contributions even if he wanted to do so, unless he risks being hauled up for contempt of court, such failure on the part of the employer in making payments in time cannot be called a failure within the meaning of clause (a) of sub-section (5) so as to call for levying of interest; H.M.T. Ltd. v. Employees’ State Insurance Corporation, (1998) 92 FJR 454 (Kar).
(xii) The applicability of the clause (a) of sub-section (5) of section 39 of the Act is where the employer fails to make contributions. If such failure is on account of circumstances beyond his control or if the circumstances make it impossible for the employer to make contributions even if he wanted to do so unless the risks being hauled up for contempt of Court, such failure on the part of the employer in making payment in time cannot be called a failure within the meaning of this provision; Fenner (India) Ltd. v. Joint Regional Director, Employees’ State Insurance Corporation, (2003) 2 LLJ 447 (Mad).
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1. Subs. by Act 29 of 1989, sec. 12, for sub-section (2) (w.e.f. 1-2-1991).
2. Subs. by Act 45 of 1984, sec. 4, for sub-section (3) (w.e.f. 27-1-1985).
3. Subs. by Act 45 of 1984, sec. 4, for “week” (w.e.f. 27-1-1985).
4. Ins. by Act 29 of 1989, sec. 12(ii) (w.e.f. 20-10-1989).
Section 40. Principal employer to pay contributions in the first instance.
(1) The principal employer shall pay in respect of every employee, whether directly employed by him or by or through an immediate employer, both the employer’s contribution and the employee’s contribution.
(2) Notwithstanding anything contained in any other enactment but subject to the provisions of this Act and the regulations, if any, made there under, the principal employer shall, in the case of an employee directly employed by him (not being an exempted employee), be entitled to recover from the employee the employee’s contribution by deduction from his wages and not otherwise :
Provided that no such deduction shall be made from any wages other than such as relate to the period or part of the period in respect of which the contribution is payable, or in excess of the sum representing the employee’s contributing for the period.
(3) Notwithstanding any contract to the contrary, neither the principal employer nor the immediate employer shall be entitled to deduct the employer’s contribution from any wages payable to an employee or otherwise to recover it from him.
(4) Any sum deducted by the principal employer from wages under this Act shall be deemed to have been entrusted to him by the employee for the purpose of paying the contribution in respect of which it was deducted.
(5) The principal employer shall bear the expenses of remitting the contributions to the Corporation.
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(i) Principal employer is liable to pay contributions; Vemly Hotels v. Kuldeep Singh, (1987) 55 FLR 183 (Bom).
(ii) The employer’s liability to contribute continues till the closure of factory or establishment; Employees’ State Insurance Corporation v. Hotel Kalpaka International, 1993 LLR 117 (SC).
Section 41. Recovery of contributions from immediate employer.
(1) A principal employer, who has paid contribution in respect of an employee employed by or through an immediate employer, shall be entitled to recover the amount of the contribution so paid (that is to say the employer’s contribution as well as the employee’s contribution, if any) from the immediate employer, either by deduction from any amount payable to him by the principal employer under any contract, or as a debt payable by the immediate employer.
1(1A) The immediate employer shall maintain a register of employees employed by or through him as provided in the regulations and submit the same to the principal employer before the settlement of any amount payable under sub-section (1).
(2) In the case referred to in sub-section (1), the immediate employer shall be entitled to recover the employee’s contribution from the employee employed by or through him by deduction from wages and not otherwise, subject to the conditions specified in the proviso to sub-section (2) of section 40.
2[***]
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1. Ins. by Act 29 of 1989, sec. 13 (w.e.f. 1-2-1991).
2. Explanation omitted by Act 44 of 1966, sec. 14 (w.e.f. 28-1-1968).
Section 42. General provisions as to payment of contributions.
(1) No employee’s contribution shall be payable by or on behalf of an employee whose average daily wages are below 1during a wage period are below 2Such wages as may be prescribed by the Central Government.
Explanation.—The average daily wages of an employee shall be calculated 3[in such manner as may be prescribed by the Central Government].
(2) Contribution (both the employer’s contribution and the employee’s contribution) shall be payable by the principal employer for each 4[wage period], 5[in respect of the whole or part of which wages are payable to the employee and not otherwise].
6[***]
7[***]
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1. Subs. by Act 45 of 1984, sec. 5, for “are below one rupee and fifty paise” (w.e.f. 27-1-1985).
2. Subs. by Act 29 of 1989, sec. 14, for “six rupees” (w.e.f. 1-2-1991).
3. Subs. by Act 29 of 1989, sec. 14, for “in such manner specified in the First Schedule”(w.e.f. 1-2-1991).
4. Subs. by Act 45 of 1984, sec. 5, for “week” (w.e.f. 27-1-1985).
5. Subs. by Act 44 of 1966, sec. 15, for “during the whole or part of which an employee is employed” (w.e.f. 28-1-1968).
6. Sub-section (3) omitted by Act 45 of 1984, sec. 5 (w.e.f. 27-1-1985).
7. Sub-sections (4) and (5) omitted by Act 44 of 1966, sec. 15 (w.e.f. 28-1-1968).
Section 43. Method of payment of contribution.
Subject to the provisions of this Act, the Corporation may make regulations for any matter relating or incidental to the payment and collection of contributions payable under this Act and without prejudice to the generality of the foregoing power such regulations may provide for –
(a) the manner and time of payment of contributions;
(b) the payment of contributions by means of adhesive or other stamps affixed to or impressed upon books, cards or otherwise and regulating the manner, times and conditions in, at and under which, such stamps are to be affixed or impressed;
(bb) the date by which evidence of contributions having been paid is to be received by the Corporation;
(c) the entry in or upon books or cards of particulars of contributions paid and benefits distributed in the case of the insured persons to whom such books or cards relate; and
(d) the issue, sale, custody, production, inspection and delivery of books or cards and the replacement of books or cards which have been lost, destroyed or defaced.
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1. Ins. by Act 44 of 1966, sec. 16 (w.e.f. 28-1-1968).
Section 44. Employers to furnish returns and maintain registers in certain cases.
1EMPLOYERS TO FURNISH RETURNS AND MAINTAIN REGISTERS IN CERTAIN CASES. (1) Every principal and immediate employer shall submit to the Corporation or to such officer of the Corporation as it may direct such returns in such form and containing such particulars relating to persons employed by him or to any factory or establishment in respect of which he is the principal or immediate employer as may be specified in regulations made in this behalf.
(2) Where in respect of any factory or establishment the Corporation has reason to believe that a return should have been submitted under sub-section (1) but has not been so submitted, the Corporation may require any person in charge of the factory or establishment to furnish such particulars as it may consider necessary for the purpose of enabling the Corporation to decide whether the factory or establishment is a factory or establishment to which this Act applies.
(3) Every principal and immediate employer shall maintain such registers or records in respect of his factory or establishment as may be required by regulations made in this behalf.
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It is mandatory on the part of the establishment to maintain the records and to produce the same whenever demanded by the authorities. If there is contravention, the punishment as stipulated by section 85(g) of the Act will be imposed; State through the Manager, State Insurance Corporation, Gulbarga v. Kranthi Kumar, 2005 LLR 376.
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1. Subs. by Act 53 of 1951, sec. 12, for section 44 (w.e.f. 6-10-1951).
Section 45. Inspectors, their functions and duties.
(1) The Corporation may appoint such persons as Inspectors, as it thinks fit, for the purposes of this Act, within such local limits as it may assign to them.
(2) Any Inspector appointed by the Corporation under sub-section (1) (hereinafter referred to as Inspector), or other official of the Corporation authorised in this behalf by it may, for the purposes of enquiring into the correctness of any of the particulars stated in any return referred to in section 44 or for the purpose of ascertaining whether any of the provisions of this Act has been complied with –
(a) require any principal or immediate employer to furnish to him such information as he may consider necessary for the purposes of this Act; or
(b) at any reasonable time enter any office, establishment, factory or other premises occupied by such principal or immediate employer and require any person found in charge thereof to produce to such Inspector or other official and allow him to examine such accounts, books and other documents relating to the employment of persons and payment of wages or to furnish to him such information as he may consider necessary; or
(c) examine, with respect to any matter relevant to the purposes aforesaid, the principal or immediate employer, his agent or servant, or any person found in such factory, establishment, office or other premises, or any person whom the said Inspector or other official has reasonable cause to believe to be or to have been an employee;
1(d) make copies of, or take extracts from, any register, account book or other document maintained in such factory, establishment, office or, other premises;
(e) exercise such other powers as may be prescribed.
(3) An Inspector shall exercise such functions and perform such duties as may be authorised by the Corporation or as may be specified in the regulations.
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1. Ins. by Act 53 of 1951, sec. 13 (w.e.f. 6-10-1951).
Section 45A. Determination of contributions in certain cases.
145A. DETERMINATION OF CONTRIBUTIONS IN CERTAIN CASES. -(1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of section 44 or any Inspector or other official of the Corporation referred to in sub-section (2) of section 45 is 2prevented in any manner by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under section 45, the Corporation may, on the basis of information available to it, by order, determine the amount of contributions payable in respect of the employees of that factory or establishment :
3Provided that no such order shall be passed by the Corporation unless the principal or immediate employer or the person in charge of the factory or establishment has been given a reasonable opportunity of being heard;
(2) An order made by the Corporation under sub-section (1) shall be sufficient proof of the claim of the Corporation under section 75 or for recovery of the amount determined by such order as an arrears of land revenue under section 45B 4or the recovery under section 45C to section 45-I.
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(i) The plea of the employer that he was not allowed to produce all documents and the registers to attract the applicability of the E.S.I. Act will not be tenable when these have been found to be bogus; Srinidhi Bars and Restaurant, Bangalore v. Regional Director, E.S.I. Corporation, Bangalore, 2006 LLR 41.
(ii) Assessment is ad hoc with record; R.S. Ganesh Das Dhomi Mal v. Employees’ State Insurance Corporation, (1988) 56 FLR 111 (Del).
(iii) The Limitation Act will have no scope for operation in respect of any claims arising under section 45A of the Act; Employees’ State Insurance Corporation v. Ramadas Reddiar, (1980) 56 FJR 490 (Mad).
(iv) Amount determined under section 45A can be recovered from the employer as arrears of land revenue; Modi Steels v. Employees’ State Insurance Corporation, (1989) 59 FLR 176 (All).
(v) Regional Director and not the ESI Inspector is empowered to determine the contributions by giving opportunity to the employer; Employees’ State Insurance Corporation, Jaipur v. Bharat Motors, Sri Ganganagar, 2001 LLR 49 (Raj HC).
(vi) In the absence of an order determining the amount payable under section 45A of the Employees’ State Insurance Act, 1948, recovery proceedings under section 45B of the Act could not be initiated; Employees’ State Insurance Corporation v. Depot Manager, M.P.S.R.T.C., (2003) 2 LLJ 351 (MP).
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1. Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).
2. Subs. by Act 29 of 1989, sec. 15, for “obstructed” (w.e.f. 20-10-1989).
3. Ins. by Act 29 of 1989, sec. 15 (w.e.f. 20-10-1989).
4. Added by Act 29 of 1989, sec. 15 (w.e.f. 20-10-1989).
Section 45B. Recovery of contributions.
1[45B. Recovery of contributions.—Any contribution payable under this Act may be recovered as an arrears of land revenue.
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1. Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).
Section 45C. Issue of certificate to the recovery officer.
1[45C. Issue of certificate to the Recovery Officer.(1) Where any amount is in arrear under this Act, the authorised officer may issue, to the Recovery Officer, a certificate under his signature specifying the amount of arrears and the Recovery Officer, on receipt of such certificate, shall proceed to recover the amount specified therein from the factory or establishment or, as the case may be, the principal or immediate employer by one or more of the modes mentioned below :
(a) attachment and sale of the movable or immovable property of the factory or establishment or, as the case may be, the principal or immediate employer;
(b) arrest of the employer and his detention in prison;
(c) appointing a receiver for the management of the movable or immovable properties of the factory or establishment or, as the case may be, the employer :
Provided that the attachment and sale of any property under this sections shall first be effected against the properties of the factory or establishment and where such attachment and sale is insufficient for recovering the whole of the amount of arrears specified in the certificate, the Recovery Officer may take such proceedings against the property of the employer for recovery of the whole or any part of such arrears.
(2) The authorised officer may issue a certificate under sub-section (1)
notwithstanding that proceedings for recovery of the arrears by any other mode have been taken.
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Attachment of Bank account of the defaulter can be undertaken for recovery of dues, notwithstanding issuance of certificate under section 45C;Ranchi Refractories v. Regional Director, Employee State Insurance Corporation, Patna, 2005 LLR 620.
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1. Ins. by Act 29 of 1989, sec. 16 (w.e.f. 1-9-1991).
Section 45D. Recovery officer to whom certificate is to be forwarded.
1[45D. Recovery Officer to whom certificate is to be forwarded.— (1) The authorised officer may forward the certificate referred to in section 45C to the Recovery Officer within whose jurisdiction the employer –
(a) carries on his business or profession or within whose jurisdiction the principal place of his factory or establishment is situate; or
(b) resides or any movable or immovable property of the factory or establishment or the principal or immediate employer is situate.
(2) Where a factory or an establishment or the principal or immediate employer has property within the jurisdiction of more than one Recovery Officer and the Recovery Officer to whom a certificate is sent by the authorised officer –
(a) is not able to recover the entire amount by the sale of the property, movable or immovable, within his jurisdiction; or
(b) is of the opinion that, for the purpose of expediting or securing the recovery of the whole or any part of the amount, it is necessary so to do, he may send the certificate or, where only a part of the amount is to be recovered, a copy of the certificate certified in the manner prescribed by the Central Government and specifying the amount to be recovered to the Recovery Officer within whose jurisdiction the factory or establishment or the principal or immediate employer has property or the employer resides, and thereupon that Recovery Officer shall also proceed to recover the amount due under this section as if the certificate or the copy thereof had been the certificate sent to him by the authorised officer.
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1. Ins. by Act 44 of 1966, sec. 17 (w.e.f.17-6-1967).
Section 45E. Validity of certificate and amendment thereof.
1[45E. Validity of certificate and amendment thereof.—(1) When the authorised officer issues a certificate to a Recovery Officer under section 45C, it shall not be open to the factory or establishment or the principal or immediate employer to dispute before the Recovery Officer the correctness of the amount, and no objection to the certificate on any other ground shall also be entertained by the Recovery Officer.
(2) Notwithstanding the issue of a certificate to a Recovery Officer, the authorised officer shall have power to withdraw the certificate or correct any clerical or arithmetical mistake in the certificate by sending an intimation to the Recovery Officer.
(3) The authorised officer shall intimate to the Recovery Officer any orders withdrawing or canceling a certificate or any correction made by him under sub-section (2) or any amendment made under sub-section (4) of section 45F.
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1. Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).
Section 45F. Stay of proceedings under certificate and amendment or withdrawal thereof.
1[45F. Stay of proceedings under certificate and amendment or withdrawal thereof.—(1) Notwithstanding that a certificate has been issued to the Recovery Officer for the Recovery of any amount, the authorised officer may grant time for the payment of the amount, and thereupon the Recovery Officer shall stay the proceedings until the expiry of the time so granted.
(2) Where a certificate for the recovery of amount has been issued, the authorised officer shall keep the Recovery Officer informed of any amount paid or time granted for payment, subsequent to the issue of such certificate.
(3) Where the order giving rise to a demand of amount for which a certificate for recovery has been issued has been modified in appeal or other proceedings under this Act, and, as a consequence thereof, the demand is reduced but the order is the subject-matter of a further proceeding under this Act, the authorised officer shall stay the recovery of such part of the amount of the certificate as pertains to the said reduction for the period for which the appeals or other proceeding remains pending.
(4) Where a certificate for the recovery of amount has been issued and subsequently the amount of the outstanding demand is reduced as a result of an appeal or other proceeding under this Act, the authorised officer shall, when the order which was the subject-matter of such appeal or other proceeding has become final and conclusive, amend the certificate or withdraw it, as the case may be.
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1. Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).
Section 45G. Other modes of recovery.
1[45G. Other modes of recovery.—(1) Notwithstanding the issue of a certificate to the Recovery Officer under section 45C, the Director General or any other officer authorised by the Corporation may recover the amount by any one or more of the modes provided in this section.
(2) If any amount is due from any person to any factory or establishment or, as the case may be, the principal or immediate employer who is in arrears, the Director General or any other officer authorised by the Corporation in this behalf may require such person to deduct from the said amount the arrears due from such factory or establishment or, as the case may be, the principal or immediate employer under this Act and such person shall comply with any such requisition and shall pay the sum so deducted to the credit of the Corporation :
Provided that nothing in this sub-section shall apply to any part of the amount exempt from attachment in execution of a decree of a civil court under section 60 of the Code of Civil Procedure, 1908 (5 of 1908).
(3) (i) The Director General or any other officer authorised by the Corporation in this behalf may, at any time or from time to time, by notice in writing, require any person from whom money is due or may become due to the factory or establishment or, as the case may be, the principal or immediate employer or any person who holds or may subsequently hold money for or on account of the factory or establishment or, as the case may be, the principal or immediate employer, to pay to the Director General either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as if sufficient to pay the amount due from the factory or establishment or, as the case may be, the principal or immediate employer in respect of arrears or the whole of the money when it is equal to or less than that amount.
(ii) A notice under this sub-section may be issued to any person who holds or may subsequently hold any money for or on account of the principal or immediate employer jointly with any other person and for the purposes of this sub-section, the shares of the joint-holders in such account shall be presumed, until the contrary is proved, to be equal.
(iii) A copy of the notice shall be forwarded to the principal or immediate employer at his last address known to the Director General or, as the case may be, the officer so authorised and in the case of a joint account to all the joint-holders at their last addresses known to the Director General or the officer so authorised.
(iv) Save as otherwise provided in this sub-section, every person to whom a notice is issued under this sub-section shall be bound to comply with such notice, and, in particular, where any such notice is issued to a post office, bank or an insurer, it shall not be necessary for any pass book, deposit receipt, policy or any other document to be produced for the purpose of any entry, endorsement or the like being made before payment is made notwithstanding any rule, practice or requirement to the contrary.
(v) Any claim respecting any property in relation to which a notice under this sub-section has been issued arising after the date of the notice shall be void as against any demand contained in the notice.
(vi) Where a person to whom a notice under this sub-section is sent objects to it by a statement on oath that the sum demanded or any part thereof is not due to the principal or immediate employer or that he does not hold any money for or on account of the principal or immediate employer, then, nothing contained in this sub-section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, but if it is discovered that such statement was false in any material particular, such person shall be personally liable to the Director General or the Officer so authorised to the extent of his own liability to the principal or immediate employer on the date of the notice, or to the extent of the principal or immediate employer’s liability for any sum due under this Act, whichever is less.
(vii) The Director General or the officer so authorised may, at any time or from time to time, amend or revoke any notice issued under this sub-section or extend the time for making any payment in pursuance of such notice.
(viii) The Director General or the officer so authorised shall grant a receipt for any amount paid in compliance with a notice issued under this sub-section and the person so paying shall be fully discharged from his liability to the principal or immediate employer to the extent of the amount so paid.
(ix) any person discharging any liability to the principal or immediate employer after the receipt of a notice under this sub-section shall be personally liable to the Director General or the officer so authorised to the extent of his own liability to the principal or immediate employer so discharge or to the extent of the principal or immediate employer’s liability for any sum due under this Act, whichever is less.
(x) If the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Director General or the officer so authorised, he shall be deemed to be a principal or immediate employer in default in respect of the amount specified in the notice and further proceedings may be taken against him for the realization of the amount as if it were an arrear due from him, in the manner provided in sections 45C to 45F and the notice shall have the same effect as an attachment of a debt by the Recovery Officer in exercise of his powers under section 45C.
(4) The Director General or the officer authorised by the Corporation in this behalf may apply to the court in whose custody there is money belonging to the principal or immediate employer for payment to him of the entire amount of such money, or if it is more than the amount due, an
amount sufficient to discharge the amount due.
(5) The Director General or any officer of the Corporation may, if so authorised by the Central Government by general or special order, recover any arrears of amount due from a factory or an establishment or, as the case may be, from the principal or immediate employer by distrait and sale of its or his movable property in the manner laid down in the Third Schedule to the Income-tax Act, 1961 (43 of 1961).
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1. Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).
Section 45H. Application of certain provisions of the income-tax act.
1[45H. Application of certain provisions of the Income-tax Act.
The provisions of the Second and Third Schedules to the Income-tax Act, 1961 (43 of 1961) and the Income-tax (Certificate Proceedings) Rules, 1962, as in force from time to time, shall apply with necessary modifications as if the said provisions and the rules referred to the arrears of the amount of contributions, interests or damages under this Act instead of to the income-tax :
Provided that any reference in the said provisions and the rules to the “assessee” shall be construed as a reference to a factory or an establishment or the principal or immediate employer under this Act.
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1. Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).
Section 45-I. Definitions.
1 DEFINITIONS. For the purposes of sections 45C to 45H, –
(a) “authorised officer” means the Director General, Insurance Commissioner, Joint Insurance Commissioner, Regional Director or such other officer as may be authorised by the Central Government, by notification in the Official Gazette;
(b) “Recovery Officer” means any officer of the Central Government, State Government or the Corporation, who may be authorised by the Central Government, by notification in the Official Gazette, to exercise the powers of a Recovery Officer under this Act.
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1. Ins. by Act 44 of 1966, sec. 17 (w.e.f. 17-6-1967).
Section 46. Benefits.
(1) Subject to the provisions of this Act, the insured persons, 1[their dependants or the persons hereinafter mentioned, as the case may be,] shall be entitled to the following benefits, namely:
(a) periodical payments to any insured person in case of his sickness certified by a duly appointed medical practitioner 2[or by any other person possessing such qualifications and experience as the Corporation may, by regulations, specify in this behalf] (hereinafter referred to as sickness benefit);
3[(b) periodical payments to an insured woman in case of confinement or mis-carriage or sickness arising out of pregnancy, confinement, premature birth of child or miscarriage, such woman being certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as maternity benefit);]
(c) periodical payments to an insured person suffering from disablement as a result of an employment injury sustained as an employee under this Act and certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as disablement benefit);
(d) periodical payments to such dependants of an insured person who dies as a result of an employment injury sustained as an employee under this Act, as are entitled to compensation under this Act (hereinafter referred to as dependants’ benefit); 4[***]
(e) medical treatment for and attendance on insured persons (hereinafter referred to as medical benefit); 2[and]
2[(f) payment to the eldest surviving member of the family of an insured person who has died, towards the expenditure on the funeral of the deceased insured person, or, where the insured person did not have a family or was not living with his family at the time of his death, to the person who actually incurs the expenditure on the funeral of the deceased insured person (to be known as 5[funeral expenses]):
Provided that the amount of such payment shall not exceed 6[such amount as may be prescribed by the Central Government] and the claim for such payment shall be made within three months of the death of the insured person or within such extended period as the Corporation or any officer or authority authorised by it in this behalf may allow.]
(2) The Corporation may, at the request of the appropriate Government, and subject to such conditions as may be laid down in the regulations, extend the medical benefits to the family of an insured person.
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1. Subs. by Act 44 of 1966, sec. 18, for “or, as the case may be, their dependants” (w.e.f. 28-1-1968).
2. Ins. by Act 44 of 1966, sec. 18 (w.e.f. 28-1-1968).
3. Subs. by Act 44 of 1966, sec. 18, for original clause (b) (w.e.f. 28-1-1968).
4. The word “and” omitted by Act 44 of 1966, sec. 18 (w.e.f. 28-1-1968).
5. Subs. by Act 29 of 1989, sec. 17, for “funeral benefit” (w.e.f. 20-10-1989).
6. Subs. by Act 29 of 1989, sec. 17, for “one hundred rupees” (w.e.f. 1-2-1991).
Section 47. When person eligible for sickness benefit.
[Rep. by the Employee’s State Insurance [Amendment] Act, 1989 (29 of 1989), sec. 18 (1-2-1991)].
Section 48. When person deemed available for employment.
[Rep. by the Employees’ State Insurance (Amendment) Act, 1966 (44 of 1966), sec. 20 (28-1-1968).]
Section 49. Sickness benefit.
1[49. Sickness benefit.—The qualification of a person to claim sickness benefit, the conditions subject to which such benefit may be given, the rates and period thereof shall be such as may be prescribed by the Central Government.
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1. Subs. by Act 29 of 1989, sec. 19, for section 49 (w.e.f. 1-2-1991).
Section 50. Maternity benefit.
1[50. Maternity benefit.—The qualification of an insured woman to claim maternity benefit, the conditions subject to which such benefit may be given, the rates and period thereof shall be such as may be prescribed by the Central Government.
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1. Subs. by Act 29 of 1989, sec. 19, for section 50 (w.e.f. 1-2-1991).
Section 51. Disablement benefit.
1[51. Disablement benefit.—Subject to the provisions of this Act 2[***],—
(a) a person who sustains temporary disablement for not less than three days (excluding the day of accident) shall be entitled to periodical payment 3[at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government];
(b) a person who sustains permanent disablement, whether total or partial, shall be entitled to periodical payment 3[at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government]:
4[***]]
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1. Subs. by Act 44 of 1966, sec. 23, for the original section 51 (w.e.f. 28-1-1968).
2. The words “and the regulations, if any” omitted by Act 29 of 1989, sec. 20 (w.e.f. 1-2-1991).
3. Subs. by Act 29 of 1989, sec. 20, for “for the period of such disablement in accordance with the provisions of the First Schedule” (w.e.f. -2-1991).
4. Proviso omitted by Act 29 of 1991, sec. 20 (w.e.f. 1-2-1991).
Section 51A. Presumption as to accident arising in course of employment.
1[51A. Presumption as to accident arising in course of employment.—For the purposes of this Act, an accident arising in the course of an insured person’s employment shall be presumed, in the absence of evidence to the contrary, also to have arisen out of that employment.
S
Accident arisen out of employment is to be presumed and no other evidence is required; Harjinder Kaur v. Employees’ State Insurance Corporation, (1987) 55 FLR 772 (P&H).
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1. Subs. by Act 44 of 1966, sec. 23, for the original section 51 (w.e.f. 28-1-1968).
Section 51B. Accidents happening while acting in breach of regulations, etc.
1[51B. Accidents happening while acting in breach of regulations, etc.An accident shall be deemed to arise out of and in the course of an insured person’s employment notwithstanding that he is at the time of the accident acting in contravention of the provisions of any law applicable to him, or of any orders given by or on behalf of his employer or that he is acting without instructions from his employer, if –
(a) the accident would have been deemed so to have arisen had the act not been done in contravention as aforesaid or on without instructions from his employer, as the case may be; and
(b) the act is done for the purpose of and in connection with the employer’s trade or business.
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1. Subs. by Act 44 of 1966, sec. 23, for the original section 51 (w.e.f. 28-1-1968).
Section 51C. Accidents happening while traveling in employer’s transport.
1[51C. Accidents happening while travelling in employer’s transport.—(1) An accident happening while an insured person is, with the express or implied permission of his employer, traveling as a passenger by any vehicle to or from his place of work shall, notwithstanding that he is under no obligation to his employer to travel by that vehicle, be deemed to arise out of and in the course of his employment, if –
(a) the accident would have been deemed so to have arisen had he been under such obligation; and
(b) at the time of the accident, the vehicle –
(i) is being operated by or on behalf of his employer or some other person by whom it is provided in pursuance of arrangements made with his employer, and
(ii) is not being operated in the ordinary course of public transport service.
(2) In this section “vehicle” includes a vessel and an aircraft.
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1. Subs. by Act 44 of 1966, sec. 23, for the original section 51 (w.e.f. 28-1-1968).
Section 51D. Accidents happening while meeting emergency.
1[51D. Accidents happening while meeting emergency.—An accident happening to an insured person in or about any premises at which he is for the time being employed for the purpose of his employer’s trade or business shall be deemed to arise out of and in the course of his employment, if it happens while he is taking steps, on an actual or supposed emergency at those premises, to rescue, succor or protect persons who are, or are thought to be or possibly to be, injured or imperiled, or to avert or minimize serious damage to property.
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1. Subs. by Act 44 of 1966, sec. 23, for the original section 51 (w.e.f. 28-1-1968).
Section 52. Dependant’s benefits.
1[52. Dependant’s benefit.—(1) If an insured person dies as a result of an employment injury sustained as an employee under this Act (whether or not he was in receipt of any periodical payment for temporary disablement in respect of the injury) dependant’s benefit shall be payable 2[at such rates and for such period and subject to such conditions as may be prescribed by the Central Government] to his dependants specified in 3[sub-clause (i), sub-clause (ia) and] sub-clause (ii) of clause (6A) of section 2.
(2) In case the insured person dies without leaving behind him the dependants as aforesaid, the dependants’ benefit shall be paid to the other dependants of the deceased at such rates and for such period and subject to such conditions as may be prescribed by the Central Government.
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1. Subs. by Act 44 of 1966, sec. 24, for the original section 52 (w.e.f. 28-1-1968).
2. Subs. by Act 29 of 1989, sec. 21, for “in accordance with the provisions of the First Schedule” (w.e.f. 1-2-1991).
3. Subs. by Act 29 of 1989, sec. 21, for “sub-clause (i) and” (w.e.f. 1-2-1991).
Section 52A. Occupational disease.
1[52A. Occupational disease.—(1) If an employee employed in any employment specified in Part A of the Third Schedule contracts any disease specified therein as an occupational disease peculiar to that employment, or if an employee employed in the employment specified in Part B of that Schedule for a continuous period of not less than six months contracts any disease specified therein as an occupational disease peculiar to that employment or if an employee employed in any employment specified in Part C of that Schedule for such continuous period as the Corporation may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall, unless the contrary is proved, be deemed to be an “employment injury” arising out of and in the course of employment.
(2) (i) Where the Central Government or a State Government, as the case may be, adds any description of employment to the employments specified in Schedule III to the Workmen’s Compensation Act, 1923 (8 of 1923), by virtue of the powers vested in it under sub-section (3) of section 3 of the said Act, the said description of employment and the occupational diseases specified under that sub-section as peculiar to that description of employment shall be deemed to form part of the Third Schedule.
(ii) Without prejudice to the provisions of clause (i), the Corporation after giving, by notification in the Official Gazette, not less than three months’ notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in the Third Schedule and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively and thereupon the provisions of this Act shall apply, as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.
(3) Save as provided by sub-sections (1) and (2), no benefit shall be payable to an employee in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.
(4) The provisions of section 51A shall not apply to the cases to which this section applies.
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1. Subs. by Act 44 of 1966, sec. 24, for the original section 52 (w.e.f. 28-1-1968).
Section 53. Bar against receiving or recovery of compensation or damages under any other law.
1[53. Bar against receiving or recovery of compensation or damages under any other law.An insured person or his dependants shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen’s Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act.
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1. Subs. by Act 44 of 1966, sec. 25, for the original section 53 (w.e.f. 28-1-1968).
Section 54. Determination of question of disablement.
1DETERMINATION OF QUESTION OF DISABLEMENT. Any question – (a) whether the relevant accident has resulted in permanent disablement; or
(b) whether the extent of loss of earning capacity can be assessed provisionally or finally; or
(c) whether the assessment of the proportion of the loss of earning capacity is provisional or final; or
(d) in the case of provisional assessment, as to the period for which such
assessment shall hold good, shall be determined by a medical board constituted in accordance with the provisions of the regulations and any such question shall hereafter be referred to as the “disablement question”
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1. Subs. by Act 44 of 1966, sec. 26, for the original section 54 (w.e.f. 28-1-1968).
Section 54A. References to medical boards and appeals to medical appeal tribunals and employees’ insurance courts.
1[54A. References to medical boards and appeals to medical appeal tribunals and Employees’ Insurance Courts.
(1) The case of any insured person for permanent disablement benefit shall be referred by the corporation to a medical board for determination of the disablement question and if, on that or any subsequent reference, the extent of loss of earning capacity of the insured person is provisionally assessed, it shall again be so referred to the medical board not later than the end of the period taken into account by the provisional assessment.
(2) If the insured person or the Corporation is not satisfied with the decision of the medical board, the insured person or the Corporation may appeal in the prescribed manner and within the prescribed time to – (i) the medical appeal tribunal constituted in accordance with the provisions of the regulations with a further right of appeal in the prescribed manner and within the prescribed time to the Employees’ Insurance Court, or
(ii) the Employees’ Insurance Court directly :
2Provided that no appeal by an insured person shall lie under this sub-section if such person has applied for commutation of disablement benefit on the basis of the decision of the medical board and received the commuted value of such benefit :
Provided further that no appeal by the Corporation shall lie under this sub-section if the Corporation paid the commuted value of the disablement benefit on the basis of the decision of the medical board.
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1. Subs. by Act 44 of 1966, sec. 26, for the original section 54 (w.e.f. 28-1-1968).
2. Ins. by Act 29 of 1989, sec. 22 (w.e.f. 20-10-1989).
Section 55. Review of decisions by medical board or medical appeal tribunal.
1[55. Review of decisions by medical board or medical appeal tribunal.—(1) Any decision under this Act of a medical board or a medical appeal tribunal may be reviewed at any time by the medical board or the medical appeal tribunal, as the case may be, if it is satisfied by fresh evidence that the decision was given in consequence of the non-disclosure or misrepresentation by the employee or any other person of a material fact (whether the non-disclosure or misrepresentation was or was not fraudulent).
(2) Any assessment of the extent of the disablement resulting from the relevant employment injury may also be reviewed by a medical board, if it is satisfied that since the making of the assessment there has been a sub-spatial and unforeseen aggravation of the results of the relevant injury :
Provided that an assessment shall not be reviewed under this sub-section unless the medical board is of opinion that having regard to the period taken into account by the assessment and the probable duration of the aggravation aforesaid, substantial injustice will be done by not reviewing it.
(3) Except with the leave of a medical appeal tribunal, an assessment shall not be reviewed under sub-section (2) on any application made less than five years, or in the case of a provisional assessment, six months, from the date thereof and on such a review the period to be taken into account by any revised assessment shall not include any period before the date of the application.
(4) Subject to the foregoing provisions of this section, a medical board may deal with a case of review in any manner in which it could deal with it on an original reference to it, and in particular may make a provisional assessment notwithstanding that the assessment under review was final; and the provisions of section 54A shall apply to an application for review under this section and to a decision of a medical board in connection with such application as they apply to a case for disablement benefit under that section and to a decision of the medical board in connection with such case.
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1. Subs. by Act 44 of 1966, sec. 27, for the original section 55 (w.e.f. 28-1-1968).
Section 55A. Review of dependants’ benefit.
1[55A. Review of dependants’ benefit.—(1) Any decision awarding dependants’ benefit under this Act may be reviewed at any time by the Corporation if it is satisfied by fresh evidence that the decision was given in consequence of non-disclosure or misrepresentation by the claimant or any other person of a material fact (whether the non-disclosure, or misrepresentation was or was not fraudulent) or that the decision is no longer in accordance with this Act due to any birth or death or due to the marriage, re-marriage or cesser of infirmity of, or attainment of the age of eighteen years by, a claimant.
(2) Subject to the provisions of this Act, the Corporation may, on such review as aforesaid, direct that the dependent’s benefit be continued, increased, reduced or discontinued.
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1. Subs. by Act 44 of 1966, sec. 27, for the original section 55 (w.e.f. 28-1-1968).
Section 56. Medical benefit.
(1) An insured person or (where such medical benefit is extended to his family) a member of his family whose condition requires medical treatment and attendance shall be entitled to receive medical benefit.
(2) Such medical benefit may be given either in the form of out patient treatment and attendance in a hospital or dispensary, clinic or other institution or by visits to the home of the insured person or treatment as inpatient in a hospital or other institution.
(3) A person shall be entitled to medical benefit during any 1[period] for which contributions are payable in respect of him or in which he is qualified to claim sickness benefit or maternity benefit 2[or is in receipt of such disablement benefit as does not disentitle him to medical benefit under the regulations]:
Provided that a person in respect of whom contribution ceases to be payable under this Act may be allowed medical benefit for such period and of such nature as may be provided under the regulations :
3Provided further that an insured person who ceases to be in insurable employment on account of permanent disablement shall continue, subject to payment of contribution and such other conditions as may be prescribed by the Central Government, to receive medical benefit till the date on which he would have vacated the employment on attaining the age of superannuating had he not sustained such permanent disablement :
Provided also that an insured person, who has attained the age of super-annotation, and his spouse shall be eligible to receive medical benefit subject to payment of contribution and such other conditions as may be prescribed by the Central Government.
Explanation : In this section, “superannuating”, in relation to an insured person, means the attainment by that person of such age as is fixed in the contract or conditions of service as the age on the attainment of which he shall vacate the insurable employment or the age of sixty years where no such age is fixed and the person is no more in the insurable employment.
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1. Subs. by Act 45 of 1984, sec. 8, for “week” (w.e.f. 27-1-1985).
2. Subs. by Act 53 of 1951, sec. 17, for “or, as provided under the regulations, is in receipt of disablement benefit” (w.e.f. 6-10-1951).
3. Ins. by Act 29 of 1989, sec. 23 (w.e.f. 1-2-1991).
Section 57. Scale of medical benefit.
(1) An insured person and (where such medical benefit is extended to his family) his family shall be entitled to receive medical benefit only of such kind and on such scale as may be provided by the State Government or by the Corporation, and an insured person or, where such medical benefit is extended to his family, his family shall not have a right to claim any medical treatment except such as is provided by the dispensary, hospital, clinic or other institution to which he or his family is allotted, or as may be provided by the regulations.
(2) Nothing in this Act shall entitle an insured person and (where such medical benefit is extended to his family) his family to claim reimbursement from the Corporation of any expenses incurred in respect of any medical treatment, except as may be provided by the regulations.
Section 58. Provision of medical treatment by state government.
(1) The State Government shall provide for insured persons and (where such benefit is extended to their families) their families in the State reasonable medical, surgical and obstetric treatment :
Provided that the State Government may, with the approval of the Corporation, arrange for medical treatment at clinics of medical practitioners on such scale and subject to such terms and conditions as may be agreed upon.
(2) Where the incidence of sickness benefit payment to insured persons in any State is found to exceed the all-India average, the amount of such excess shall be shared between the Corporation and the (Substituted for “Provincial” and “Province” by the A. O. 1950) State Government in such proportion as may be fixed by agreement between them :
Provided that the Corporation may in any case waive the recovery of the whole or any part of the share which is to be borne by the State Government.
(3) The corporation may enter into an agreement with a State Government in regard to the nature and scale of the medical treatment that should be
provided to insured persons and (where such medical benefit is extended to the families) their families (including provision of buildings, equipment, medicines, and staff) and for the sharing of the cost thereof and of any excess in the incidence of sickness benefit to insured persons between the Corporation and the State Government.
(4) In default of agreement between the Corporation and any State Government as aforesaid the nature and extent of the medical treatment to be provided by the State Government and the proportion in which the cost thereof and of the excess in the incidence of sickness benefit shall be shared between the Corporation and that Government, shall be determined by an arbitrator (who shall be or shall have been a Judge of the High Court of a State appointed by the Chief Justice of India (and the award of the arbitrator) shall be binding on the Corporation and the State Government.
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1. Subs. by the A.O. 1950, for “High Court of a Province”.
2. Subs. by Act 53 of 1951, sec. 18, for “for a Part A State” (w.e.f. 6-10-1951).
Section 59. Establishment and maintenance of hospitals, etc., by corporation.
(1) The Corporation may, with the approval of the State Government establish and maintain in a State such hospitals, dispensaries and other medical and surgical services as it may think fit for the benefit of insured persons and (where such medical benefit is extended to their families) their families.
(2) The Corporation may enter into agreement with any1[***] local authority, private body or individual in regard to the provision of medical treatment and attendance for insured persons and (where such medical benefit is extended to their families) their families, in any area and sharing the cost thereof.
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1. The words “Part B State”, omitted by the A.O. (No. 4) 1957 (w.e.f. 1-11-1956).
Section 59A. Provision of medical benefit by the corporation in lieu of state government.
1[59A. Provision of medical benefit by the Corporation in lieu of State Government.—(1) Notwithstanding anything contained in any other provisions of this Act, the Corporation may, in consultation with the State Government, undertake the responsibility for providing medical benefit to insured persons and where such medical benefit is extended to their families, to the families of such insured persons in the State subject to the condition that the State Government shall share the cost of such medical benefit in such proportion as may be agreed upon between the State Government and the Corporation.
(2) In the event of the Corporation exercising its power under sub-section (1), the provisions relating to medical benefit under this Act shall apply, so far as may be, as if a reference therein to the State Government were a reference to the Corporation.
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1. Ins. by Act 44 of 1966, sec. 28 (w.e.f. 17-6-1967).
Section 60. Benefit not assignable or attachable.
(1) The right to receive any payment of any benefit under this Act shall not be transferable or assignable.
(2) No cash benefit payable under this Act shall be liable to attachment or sale in execution of any decree or order of any Court.
Section 61. Bar of benefits under other enactments.
When a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment
Section 62. Persons not to commute cash benefits.
Save as may be provided in the regulations no person shall be entitled to commute for a lump sum any 1[disablement benefit] admissible under this Act.
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1. Subs. by Act 29 of 1989, sec. 24, for “periodical payment” (w.e.f. 20-10-1989).
Section 63. Persons not entitled to receive benefit in certain cases.
Save as may be provided in the regulations, no person shall be entitled to sickness benefit or disablement benefit for temporary disablement on any day on which he works or remains on leave or on a holiday in respect of which he receives wages or on any day on which he remains on strike.
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1. Subs. by Act 29 of 1989, sec. 25, for section 63 (w.e.f. 20-10-1989).
Section 64. Recipients of sickness or disablement benefit to observe conditions.
A person who is in receipt of sickness benefit or disablement benefit (other than benefit granted on permanent disablement) –
(a) shall remain under medical treatment at a dispensary, hospital, clinic or other institution provided under this act and shall carry out the instructions given by the medical officer or medical attendant in charge thereof;
(b) shall not while under treatment do anything which might retard or prejudice his chances of recovery.
(c) shall not leave the area in which medical treatment provided by this Act is being given, without the permission of the medical officer, medical attendant or such other authority as may be specified in this behalf by the regulations; and
(d) shall allow himself to be examined by any duly appointed medical officer 1[***] or other person authorised by the Corporation in this behalf.
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1. The words “or sick visitor” omitted by Act 29 of 1989, sec. 26 (w.e.f. 20-10-1989).
Section 65. Benefits not to be combined.
(1) An insured person shall not be entitled to receive for the same period –
(a) both sickness benefit and maternity benefit; or
(b) both sickness benefit and disablement benefit for temporary disablement; or
(c) both maternity benefit and disablement benefit for temporary disablement.
(2) Where a person is entitled to more than one of the benefits mentioned in sub-section (1), he shall be entitled to choose which benefit he shall receive.
Section 66. Corporation’s right to recover damages from employer in certain cases.
Rep. by the Employees’ State Insurance (Amendment) Act, 1966 (44 of 1966), sec. 29 (w.e.f. 17-6-1967)
Section 67. Corporations right to be indemnified in certain cases.
Rep. by the Employees’ State Insurance (Amendment) Act, 1966 (44 of 1966), sec. 29 (w.e.f. 17-6-1967).]
Section 68. Corporation’s rights where a principal employer fails or neglects to pay any contribution.
(1) If any principal employer fails or neglects to pay any contribution which under this Act he is liable to pay in respect of any employee and by reason thereof such person becomes disentitle to any benefit or entitled to a benefit on a lower scale, the Corporation may, on being satisfied that the contribution should have been paid by the principal employer, pay to the person the benefit at the rate to which he would have been entitled if the failure or neglect had not occurred and the Corporation shall be entitled to recover from the principal employer either –
1(i) the difference between the amount of benefit which is paid by the Corporation to the said person and the amount of the benefit which would have been payable on the basis of the contributions were in fact paid by the employer; or
(ii) twice the amount of the contribution which the employer failed or neglected to pay, whichever is greater.
(2) The amount recoverable under this section may be recovered as if it were an arrear of land-revenue 2[or under section 45C to section 45-I].
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Default is sufficient for the levy and recovery of damages; Employees’ State Insurance Corporation v.Jaipur Spinning and Weaving Mills Ltd., (1988) 56 FLR 431 (Raj).
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1. Subs. by Act 53 of 1951, sec. 19, for clause (i) (w.e.f. 6-10-1951).
2. Added by Act 29 of 1989, sec. 27 (w.e.f. 20-10-1989).
Section 69. Liability of owner or occupier of factories, etc., for excessive sickness benefit.
1) Where the Corporation considers that the incidence of sickness among insured persons is excessive by reason of –
(i) unsanitary working conditions in a factory or establishment or the neglect of the owner or occupier of the factory or establishment to observe any health regulations enjoined on him by or under any enactment, or
(ii) unsanitary conditions of any tenements or lodgings occupied by insured persons and such unsanitary conditions are attributable to the neglect of the owner of the tenements or lodgings to observe any health regulations enjoined on him by or under any enactment, the Corporation may send to the owner or occupier of the factory or establishment or to the owner of the tenements or lodgings, as the case may be, a claim for the payment of the amount of the extra expenditure incurred by the Corporation as sickness benefit; and if the claim is not settled by agreement, the Corporation may refer the matter, with a statement in support of its claim, to the appropriate Government.
(2) If the appropriate Government is of opinion that a prima facie case for inquiry is disclosed, it may appoint a competent person or persons to hold an inquiry into the matter.
(3) If upon such inquiry it is proved to the satisfaction of the person or persons holding the inquiry that the excess in incidence of sickness among the insured persons is due to the default or neglect of the owner or occupier of the factory or establishment or the owner of the tenements or lodgings, as the case may be, the said person or persons shall determine the amount of the extra expenditure incurred as sickness benefit, and the person or persons by whom the whole or any part of such amount shall be paid to the Corporation.
(4) A determination under sub-section (3) may be enforced as if it were a decree for payment of money passed in a suit by a Civil Court.
(5) For the purposes of this section “owner” of tenements or lodgings shall include any agent of the owner and any person who is entitled to collect the rent of the tenements or lodgings as a lessee of the owner.
Section 70. Repayment of benefit improperly received.
(1) Where any person has received any benefit or payment under this Act when he is not lawfully entitled thereto, he shall be liable to repay to the Corporation the value of the benefit or the amount of such payment, or in the case of his death his representative shall be liable to repay the same from the assets of the deceased, if any, in his hands.
(2) The value of any benefits received other than cash payments shall be determined by such authority as may be specified in the regulations made in this behalf and the decision of such authority shall be final.
(3) The amount recoverable under this section may be recovered as if it were an arrear of land-revenue 1or under section 45-C to section 45-I.
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1. Added by Act 29 of 1989, sec. 27 (w.e.f. 20-10-1989).
Section 71. Benefit payable up to and including day of death.
1 If a person during any period for which he is entitled to a cash benefit under this Act, the amount of such benefit up to and including the day of his death shall be paid to any person nominated by the deceased person in writing in such form as may be specified in the regulations or, if there is no such nomination, to the heir or legal representative of the deceased person.
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1. Subs. by Act 29 of 1989, sec. 28, for “Except as provided in the provision to sub-section (2) of section 50, if a person dies” (w.e.f. 1-2-1991).
Section 72. Employer not to reduce wages, etc.
No employer by reason only of his liability for any contributions payable under this act shall, directly or indirectly, reduce the wages of any employee, or except as provided by the regulations, discontinue or reduce benefits payable to him under the conditions of his service which are similar to the benefits conferred by this Act.
Section 73. Employer not to dismiss or punish employee during period of sickness, etc.
(1) No employer shall dismiss, discharge, or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit, nor shall he, except as provided under the regulations, dismiss, discharge or reduce or otherwise punish an employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is absent from work as a result of illness duly certified in accordance with the regulations to arise out of the pregnancy or confinement rendering the employee unfit for work.
(2) No notice of dismissal or discharge or reduction given to an employee during the period specified in sub-section (1) shall be valid or operative.
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(i) Section 73 is not applicable to a case where termination of services follows automatically; Moti Singh v. Factory Manager, Cimmco Ltd., (1989) 58 FLR 900 (Raj).
(ii) The employer cannot dismiss, discharge or reduce or otherwise punish the employee during the period an employee is in receipt of sickness benefits or maternity benefits; Management of Guest Keen Williams Ltd. v. Presiding Officers, 2nd Addl. Labour Court, (1992) 1 CLR 433 (Karn).
Section 74. Constitution of employees’ insurance court.
(1) The State Government shall, by notification in the Official Gazette, constitute an Employees’ Insurance Court for such local area as may be specified in the notification.
(2) The Court shall consist of such number of Judges as the State Government may think fit.
(3) Any person who is or has been a judicial officer or is a legal practitioner of five years standing shall be qualified to be a Judge of the Employees’ Insurance Court.
(4) The State Government may appoint the same Court for two or more local areas or two or more Courts for the same local area.
(5) Where more than one Court has been appointed for the same local area, the State Government may by general or special order, regulate the distribution of business between them.
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An employee insured under this Act cannot claim ‘compensation’ under the Workmen’s Compensation Act; Abad Fisheries v. Commissioner for Workmen’s Compensation, (1985) 50 FLR 512.
Section 75. Matters to be decided by employees’ insurance court.
(1) If any question or dispute arises as to – (a) whether any person is an employee within the meaning of this Act or whether he is liable to pay the employee’s contribution, or
(b) the rate of wages or average daily wages of an employee for the purposes of this Act, or
(c) the rate of contribution payable by a principal employer in respect of any employee, or
(d) the person who is or was the principal employer in respect of any employee, or
(e) the right of any person to any benefit and as to the amount and duration thereof, or
1[(ee) any direction issued by the Corporation under section 55A on a review of any payment of dependants’ benefit, or]
2[***]
(g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, 3[or any other matter required to be or which may be decided by the Employees’ Insurance Court under this Act],
such question or dispute 4[subject to the provisions of sub-section (2A)] shall be decided by the Employees’ Insurance Court in accordance with the provisions of this Act.
(2) 4[Subject to the provisions of sub-section (2A), the following claims] shall be decided by the Employees’ Insurance Court, namely:—
(a) claim for the recovery of contributions from the principal employer;
(b) claim by a principal employer to recover contributions from any immediate employer;
5[***]
(d) claim against a principal employer under section 68;
(e) claim under section 70 for the recovery of the value or amount of the benefits received by a person when he is not lawfully entitled thereto; and
(f) any claim for the recovery of any benefit admissible under this Act.
6[(2A) If in any proceedings before the Employees’ Insurance Court a disablement question arises and the decision of a medical board or a medical appeal tribunal has not been obtained on the same and the decision of such question is necessary for the determination of the claim or question before the Employees’ Insurance Court, that Court shall direct the Corporation to have the question decided by this Act and shall thereafter proceed with the determination of the claim or question before it in accordance with the decision of the medical board or the medical appeal tribunal, as the case may be, except where an appeal has been filed before the Employees’ Insurance Court under sub-section (2) of section 54A in which case the Employees’ Insurance Court may itself determine all the issues arising before it.]
7[(2B)No matter which is in dispute between a principal employer and the Corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees’ Insurance Court unless he has deposited with the Court fifty per cent of the amount due from him as claimed by the Corporation :
Provided that the Court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this sub-section.
(3) No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by a medical board, or by a medical appeal tribunal or by the Employees’ Insurance Court.
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(i) When an appropriate remedy is available for appeal under section 75 of the E.S.I. Act, the employer cannot file a writ petition; Tuticorin Thermal Power Station Industrial Cooperative Society Ltd. v. Deputy Regional Director, E.S.I. Corpn., Madurai, 2005 LLR 963.
(ii) Section 75(2A) is applicable in cases of unscheduled injuries; Employees’ State Insurance Corporation v. Hari Hazra, (1989) 58 FLR 762 (Cal).
(iii) Insurance Court is a court for all practical purposes; J.C. Patel Kamalaben v. Employees’ State Insurance Corporation, (1987) 55 FLR 337 (Bom).
(iv) Jurisdiction of civil court on a dispute as to whether this Act is applicable to a factory or not has been excluded under section 75(3); Employees’ State Insurance Corporation v. Nirmala Chemical Industries, (1994) 1 ALT 4 (DN) AP.
(v) Applying the theory of notional extension, the E.S.I.C. will be liable to pay compensation to the employee’s dependants, who died on his way to the factory; Sheela v. Employees’ State Insurance Corporation, (1990) 77 FJR 119 (P&H).
(vi) The ESI Court has power to grant an injunction or interim stay; Aggarwal Hardware Industries v. Employees’ State Insurance Corporation, 1976 Lab IC 1354.
(vii) A Civil Court cannot determine whether this Act is applicable to an establishment or not; Employees’ State Insurance Corporation v. Jalandhar Gymkhana Club, 1992 LLR 733 (P&H).
(viii) Jurisdiction of a civil court is barred/ousted; Employees’ State Insurance Corporation v. Jalandhar Gymkhana Club, 1992 LLR 733 (P&H).
(ix) The cause of action for contribution would arise only after the decision of the Insurance Court in the proceedings laid under section 75 of the Act. Therefore, in all matters arising for consideration of the Court under section 75 which relate back to the period anterior to October 20, 1989, from when on the amended Act came into force, the bar of limitation would not operate; Deputy Director, Employees’ State Insurance Corporation v. Bhuwalka Steel Industries Ltd., (2003) 2 LLJ 348 (Kar).
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1. Subs. by Act 44 of 1966, sec. 32, for clause (ee) (w.e.f. 28-1-1968).
2. Clause (f) omitted by Act 44 of 1966, sec. 32 (w.e.f. 28-1-1968).
3. Ins. by Act 44 of 1966, sec. 32 (w.e.f. 28-1-1968).
4. Subs. by Act 44 of 1966, sec. 32, for “The following claims” (w.e.f. 28-1-1968).
5. Clause (c) omitted by Act 44 of 1966, sec. 32 (w.e.f. 28-1-1968).
6. Ins. by Act 44 of 1966, sec. 32 (w.e.f. 28-1-1968).
7. Ins. by Act 29 of 1989, sec. 29 (w.e.f. 20-10-1989).
8. Subs. by Act 44 of 1966, sec. 32, for “the Employees’ Insurance Court” (w.e.f. 28-1-1968).
Section 76. Institution of proceedings, etc.
(1) Subject to the provisions of this Act and any rules made by the State Government, all proceedings before the Employees’ Insurance Court shall be instituted in the Court appointed for the local area in which the insured person was working at the time the question or dispute arose.
(2) If the Court is satisfied that any matter arising out of any proceeding pending before it can be more conveniently dealt with by any other Employees’ Insurance Court in the same State, it may, subject to any rules made by the State Government in this behalf, order such matter to be transferred to such other Court for disposal and shall forthwith transmit to such other Court the records connected with that matter.
(3) The State Government may transfer any matter pending before any Employees’ Insurance Court in the State to any such Court in another State with the consent of the State Government of that State.
(4) The Court to which any matter is transferred under sub-section (2) or sub-section (3) shall continue the proceedings as if they had been originally instituted in it.
Section 77. Commencement of proceedings.
(1) The proceedings before an Employees’ Insurance Court shall be commenced by application.
1 (1A) Every such application shall be made within a period of three years from the date on which the cause of action arose.
Explanation : For the purpose of this sub-section, –
(a) the cause of action in respect of a claim for benefit shall not be deemed to arise unless the insured person or in the case of dependants’ benefit, the dependants of the insured person claims or claim that benefit in accordance with the regulations made in that behalf within a period of twelve months after the claim became due or within such further period as the Employees’ Insurance Court may allow on grounds which appear to it to be reasonable;
2(b) the cause of action in respect of a claim by the Corporation for recovering contributions (including interest and damages) from the principal employer shall be deemed to have arisen on the date on which such claim is made by the Corporation for the first time : Provided that no claim shall be made by the Corporation after five years of the period to which the claim relates;
(c) the cause of action in respect of a claim by the principal employer for recovering contributions from an immediate employer shall not be deemed to arise till the date by which the evidence of contributions having been paid s due to be received by the Corporation under the regulation.
(2) Every such application shall be in such form and shall contain such particulars and shall be accompanied by such fee, if any, as may be prescribed by rules made by the State Government in consultation with the Corporation.
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(i) For disablement benefit, ESIC should be approached first; Radhey Shyam v. Employees’ State Insurance Corporation, (1989) 58 FLR 133 (MP).
(ii) An insured employee cannot claim “disablement benefit” from the Employees’ Insurance Court without first approaching the E.S.I.C.; Radhey Shyam v. Employees’ State Insurance Corporation, (1989) 58 FLR 133 (MP).
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1. Ins. by Act 44 of 1966, sec. 33 (w.e.f. 28-1-1968).
2. Subs. by Act 29 of 1989, sec. 30, for clause (b) (w.e.f. 20-10-1989).
Section 78. Powers of employees’ insurance court.
(1) The Employees’ Insurance Court shall have all the powers of a Civil Court for the purposes of summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, administering oath and recording evidence and such Court shall be deemed to be a Civil Court within the meaning of 11[section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)].
(2) The Employees’ Insurance Court shall follow such procedure as may be prescribed by rules made by the State Government.
(3) All costs incidental to any proceeding before an Employees’ Insurance Court shall, subject to such rules as may be made in this behalf by the (Substituted for “Provincial” by the A. O. 1950) [State] Government, be in the discretion of the Court.
(4) An order of the Employees’ Insurance Court shall be enforceable as if it were a decree passed in a suit by a Civil Court.
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Only some of the powers of the Civil Court have been conferred on the ESI Court;Arul Theatre v. Regional Director, Employees’ State Insurance Corporation (1987) 55 FLR 3 (Bom).
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1. Subs. by Act 45 of 1984, sec. 9, for “section 195 Chapter XXXV of the Code of Criminal Procedure, 1898” (w.e.f.27-1-1985).
Section 79. Appearance by legal practitioners, etc.
Any application, appearance or act required to be made or done by any person to or before an Employees’ Insurance Court (other than appearance of a person required for the purpose of his examination as a witness) may be made or done by a legal practitioner or by an officer of a registered trade union authorised in writing by such person or with the permission of the Court, by any other person so authorised.
Section 80. Benefit not admissible unless claimed in time.
[Rep. by the Employees’ State Insurance (Amendment) Act, 1966 (44 of 1966), sec. 34 (w.e.f. 28-1-1968).]
Section 81. Reference to high court.
An Employees’ Insurance Court may submit any question of law for the decision of the High Court arid if it does so, shall decide the question pending before it in accordance with such decision.
Section 82. Appeal.
(1) Save as expressly provided in this section, no appeal shall lie from an order of an Employees’ Insurance Court.
(2) An appeal shall lie to the High Court from an order of an Employees’ Insurance Court if it involves a substantial question of law.
(3) The period of limitation for an appeal under this section shall be sixty days.
(4) The provisions of sections 5 and 12 of the 1limitation Act, 1963 (36 of 1963) shall apply to appeals under this section.
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(i) Different units of appellant constitute single unit for the purpose of application of the Act; Srinidhi Silks and Textiles, Shimoga v. Regional Director, E.S.I. Corporation, Bangalore, 2006 LLR 76.
(ii) Recommendations of Medical Board are not binding on the E.S.I. Court; Chhotelal v. Regional Director of Employees’ State Insurance Corporation, (1989) 58 FLR 158 (MP).
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1. Subs. by Act 29 of 1989, sec. 31, for “Indian Limitation Act, 1908 (9 of 1908) (w.e.f. 20-10-1989).
Section 83. Stay of payment pending appeal.
Where the Corporation has presented an appeal against an order of the Employees’ Court, that Court may, and if so directed by the High Court, shall, pending the decision on the appeal, withhold the payment of any sum directed to be paid by the order appealed against.
Section 84. Punishment for false statement.
Whoever, for the purpose of causing any increase in payment or benefit under this Act, or for the purpose of causing any payment or benefit to be made where no payment or benefit is authorised by or under this Act, or for the purpose of avoiding any payment to be made by himself under this Act or enabling any other person to avoid any such payment, knowingly makes or causes to be made any false statement or false representation, shall be punishable with imprisonment for a term which may extend to 1six months or with fine not exceeding 2two thousand rupees or with both :
3Provided that where an insured person is convicted under this section, he shall not be entitled for any cash benefit under this Act for such period as may be prescribed by the Central Government.
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1. Subs. by Act 29 of 1989, sec. 32(i), for “three months” (w.e.f. 20-10-1989).
2. Subs. by Act 29 of 1989, sec. 32, for “five hundred” (w.e.f. 20-10-1989).
3. Ins. by Act 29 of 1989, sec. 32(iii) (w.e.f. 1-2-1991).
Section 85. Punishment for failure to pay contributions, etc.
If any person – (a) fails to pay any contribution which under this Act he is liable to pay, or
(b) deducts or attempts to deduct from the wages of an employee the whole or any part of the employer’s contribution, or
(c) in contravention of section 72 reduces the wages or any privileges or benefits admissible to an employee, or
(d) in contravention of section 73 or any regulation dismisses, discharges, reduces or otherwise punishes an employee, or
(e) fails or refuses to submit any return required by the regulations or makes a false return, or
(f) obstructs any Inspector or other official of the Corporation in the discharge of his duties, or
(g) is guilty of any contravention of or non-compliance with any of the requirements of this Act or the rules or the regulations in respect of which no special penalty is provided,
1[he shall be punishable—
2[(i) where he commits an offence under clause (a), with imprisonment for a term which may extend to three years but—
(a) which shall not be less than one year, in case of failure to pay the employee’s contribution which has been deducted by him from the employee’s wages and shall also be liable to fine of ten thousand rupees;
(b) which shall not be less than six months, in any other case and shall also be liable to fine of five thousand rupees :
Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence or imprisonment for a lesser term; (ii) where he commits an offence under any of the clauses (b) to (g) (both inclusive), with imprisonment for a term which may extend to one year or with fine which may extend to four thousand rupees, or with both.
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(i) Offences on the part of the employer for non-compliance of the provisions of the Act does not get wiped off with the belated payment; Sub-Regional Office, E.S.I. Corporation v. Krishchand Shetty, 2005 LLR 853.
(ii) As a partner of the firm owning the factory, he is liable to be prosecuted for non-distribution of the identity/contribution cards; Shankar Bhattacharjee v. Bholanath Ghosh, (1987) 1 CLR 413 (Cal).
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1. Subs. by Act 38 of 1975, sec. 4, for certain words (w.e.f. 1-9-1975).
2. Subs. by Act 29 of 1989, sec. 33, for clauses (i) and (ii) (w.e.f. 20-10-1989).
Section 85A. Enhanced punishment in certain cases after previous conviction.
1 ENHANCED PUNISHMENT IN CERTAIN CASES AFTER PREVIOUS CONVICTION. –
Whoever, having been convicted by a court of an offence punishable under this Act, commits the same offence shall, for every such subsequent offence, be punishable with imprisonment for a term which may extend to 2two years and with fine of five thousand rupees :
Provided that where such subsequent offence is for failure by the employer to pay any contribution which under this Act he is liable to pay, he shall, for every such subsequent offence, be punishable with imprisonment for a term which may extend to 3five years but which shall not be less than two years and shall also be liable to fine of twenty-five thousand rupees.
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1. Ins. by Act 38 of 1975, sec. 5 (w.e.f. 1-9-1975).
2. Subs. by Act 29 of 1989, sec. 34, for “one year or with fine which may extend to two thousand rupees, or both” (w.e.f. 20-10-1989).
3. Subs. by Act 29 of 1989, sec. 34, for certain words (w.e.f. 20-10-1989).
Section 85B. Power to recover damages.
1[85B. Power to recover damages.—(1) Where an employer fails to pay the amount due in respect of any contribution or any other amount payable under this Act, the Corporation may recover 2[from the employer by way of penalty such damages not exceeding the amount of arrears as may be specified in the regulations]:
Provided that before recovering such damages, the employer shall be given a reasonable opportunity of being heard:
3[Provided further that the Corporation may reduce or waive the damages recoverable under this section in relation to an establishment which is a sick industrial company in respect of which a scheme for rehabilitation has been sanctioned by the Board for Industrial and Financial Reconstruction established under section 4 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986), subject to such terms and conditions as may be specified in regulations.]
(2) Any damages recoverable under sub-section (1) may be recovered as an arrear of land revenue 4[or under section 45C to section 45-I].]
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(i) Damages may be levied for delay in payment of contributions; Employees’ State Insurance Corporation v. Indoflex Pvt. Ltd., (1988) 56 FLR 109 (Raj).
(ii) Section 68 has no bearing on section 85B; Hind Art Press v. Employees’ State Insurance Corporation, (1989) 59 FLR 778 (Karn).
(iii) Levy of damages is penal in nature. Damages cannot, therefore, be levied in a cursory manner; Beama Mfg. (P.A.) Ltd. v. Regional Director, Employees’ State Insurance Corporation, (1990) 2 LLN 24 (Mad).
(iv) In recovering the damages as envisaged in section 85B, if at a given point of time it is found that the extent of damages claimed would exceed the ceiling of 100 per cent, such damages would get frozen and can not be recovered to the extent to which the ceiling prescribed by section 85B got exceeded; Employees’ State Insurance Corporation v. Nasniat Pharmaceuticals Chemicals Pvt. Ltd., (1998) 1 SCC 185.
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1. Ins. by Act 38 of 1975, sec. 5 (w.e.f. 1-9-1975).
2. Subs. by Act 29 of 1989, sec. 35, for certain words (w.e.f. 1-1-1992)
.3. Ins. by Act 29 of 1989, sec. 35 (w.e.f. 1-1-1992).
4. Added by Act 29 of 1989, sec. 35 (w.e.f. 1-1-1992).
Section 85C. Power of court to make orders.
1[85C. Power of Court to make orders.—(1) Where an employer is convicted of an offence for failure to pay any contribution payable under this Act, the court may, in addition to awarding any punishment, by order, in writing, require him within a period specified in the order (which the court may if it thinks fit and on application in that behalf, from time to time, extend), to pay the amount of contribution in respect of which the offence was committed 2and to furnish the return relating to such contributions.
(2) Where an order is made under sub-section (1), the employer shall not be liable under this Act in respect of the continuation of the offence during the period or extended period, if any, allowed by the court, but if, on the expiry of such period or extended period, as the case may be, the order of the court has not been fully complied with, the employer shall be deemed to have committed a further offence and shall be punishable with imprisonment in respect thereof under section 85 and shall also be liable to pay fine which may extend to 3one thousand rupees for every day after such expiry on which the order has not been complied with.
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1. Ins. by Act 38 of 1975, sec. 5 (w.e.f. 1-9-1975).
2. Added by Act 29 of 1989, sec. 36 (w.e.f. 20-10-1989)
3. Subs. by Act 29 of 1989, sec. 36, for “one hundred” (w.e.f. 20-10-1989).
Section 86. Prosecutions.
(1) No prosecution under this Act shall be instituted except by or with the previous sanction of the Insurance Commissioner 1or of such other officer of the corporation as may be authorised in this behalf by the 2Director General of the Corporation.
3(2) No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the First Class shall try any offence under this Act.
(3) No Court shall take cognizance of any offence under this Act except on a complaint made in writing in respect thereof 4[***]
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1. Added by Act 53 of 1951, sec. 22 (w.e.f. 6-10-1951).
2. Subs. by Act 44 of 1966, sec. 35, for “Central Government” (w.e.f. 17-6-1967).
3. Subs. by Act 29 of 1989, sec. 37, for sub-section (2) (w.e.f. 20-10-1989).
4. Certain words omitted by Act 29 of 1989, sec. 37 (w.e.f. 20-10-1989).
Section 86A. Offences by companies.
1 (1) If the person committing an 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 person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation : For the purposes of this section, – (i) “company” means any body corporate and includes a firm and other associations of individuals; and (ii) “director” in relation to –
(a) a company, other than a firm, means the managing director or a whole-time director;
(b) a firm means a partner in the firm.
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When an offence has been committed by a company and to make a director liable, the averments in the complaint or the documents produced along with the complaint must prima facie indicate that such director was in charge of and responsible for the conduct of the business of the company; Siddharth Kejriwal v. Employees’ State Insurance Corporation, (1998) 92 FJR 89 (Karn).
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1. Ins. by Act 29 of 1989, sec. 38 (w.e.f. 20-10-1989).
Section 87. Exemption of a factory or establishment or class of factories, or establishments.
The appropriate Government, may, by notification in the Official Gazette and subject to such conditions as may be specified in the notification, exempt any factory or establishment or class of factories or establishments in any specified area from the operation of this Act for a period not exceeding one year and may from time to time by like notification renew any such exemption for periods not exceeding one year at a time.
Section 88. Exemption of persons or class of persons.
The appropriate Government may, by notification in the Official Gazette and subject to such conditions as it may deem fit to impose, exempt any persons or class of persons employed in any factory or establishment or class of factories or establishments to which this Act applies from the operation of the Act.
S
Exempting persons or class of persons from coverage under ESI Act should not be in a mechanical manner hence an employer, seeking exemption under ESI Act, has to prove that medical facilities and other benefits as extended to employees are better than those under the ESI Act; Lark Laboratories (India) Ltd. v. Government of NCT of Delhi, 2006 LLR 1093: 2007 (1) LLJ 72 (Del HC).
Section 89. Corporation to make representation.
No exemption shall be granted or renewed under section 87 or section 88, unless a reasonable opportunity has been given to the Corporation to make any representation it may wish to make in regard to the proposal and such representation has been considered by the appropriate Government.
Section 90. Exemption of factories or establishments belonging to government or any local authority.
The appropriate Government may, 1after consultation with the Corporation, by notification in the Official Gazette and subject to such conditions as may be specified in the notifications, exempt any factory or establishment belonging to 2[***] any local authority from the operation of this Act, if the employees in any such factory or establishment are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act.
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1. Ins. by Act 44 of 1966, sec. 36 (w.e.f. 17-6-1967).
2. The words “The Government or” omitted by Act 29 of 1989, sec. 39 (w.e.f. 20-10-1989).
Section 91. Exemption from one or more provisions of the act.
The appropriate Government may, with the consent of the Corporation, by notification in the Official Gazette, exempt any employees or class of employees in any factory or establishment or class of factories or establishments from one or more of the provisions relating to the benefits provided under this Act.
Section 91A. Exemptions to be either prospective or retrospective.
1[91A. Exemptions to be either prospective or retrospective.
Any notification granting exemption under section 87, section 88, section 90 or section 91 may be issued so as to take effect either prospectively or retrospectively on such date as may be specified therein.
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1. Ins. by Act 44 of 1966, sec. 37 (w.e.f. 17-6-1967).
Section 91B. Misuse of benefits.
1[91B. Misuse of benefits.—If the Central Government is satisfied that the benefits under this Act are being misused by insured persons in a factory or establishment, that Government may, by order, published in the Official Gazette, disentitle such persons from such of the benefits as it thinks fit :
Provided that no such order shall be passed unless a reasonable opportunity of being heard is given to the concerned factory or establishment, insured persons and the trade unions registered under the Trade Unions Act, 1926 (16 of 1926), having members in the factory or establishment.
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1. Ins. by Act 29 of 1989, sec. 40 (w.e.f. 20-10-1989).
Section 91C. Writing off of losses.
1 WRITING OFF OF LOSSES. -Subject to the conditions as may be prescribed by the Central Government, where the Corporation is of opinion that the amount of contribution, interest and damages due to the Corporation is irrecoverable, the Corporation may sanction the writing off finally of the said amount.
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1. Ins. by Act 29 of 1989, sec. 40 (w.e.f. 20-10-1989).
Section 92. Power of central government to give directions.
1(1) The Central Government may give directions to a State Government as to the carrying into execution of this Act in the State.
2(2) The Central Government may, from time to time, give such directions to the Corporation as it may think fit for the efficient administration of the Act, and if any such direction is given, the Corporation shall comply with such direction.
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1. Section 92 renumbered as sub-section (1) thereof by Act 29 of 1989, sec. 41 (w.e.f. 20-10-1989).
2. Ins. by Act 29 of 1989, sec. 41 (w.e.f. 20-10-1989).93. CORPORATION OFFICERS AND SERVANTS TO BE PUBLIC SERVANTS. –
All officers and servants of the Corporation shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).
Section 93A. Liability in case of transfer of establishment.
1[93A. Liability in case of transfer of establishment.—Where an employer, in relation to a factory or establishment, transfers that factory or establishment in whole or in part, by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the factory or establishment is so transferred shall jointly and severally be liable to pay the amount due in respect of any contribution or any other amount payable under this Act in respect of the periods up to the date of such transfer :
Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer.
S
A plain reading of section 93A of the ESI Act, makes it clear that the word ‘transfer’ in section 93A has a different connection than ‘transfer’ under the Transfer of Property Act, hence the purchaser of property cannot be held liable to pay ESI contributions of an establishment; ANK Seals, Nagpur v. Employees’ State Insurance Corporation, Nagpur, 2006 LLR (SN) 1277: 2007 (1) LLJ 310 (Bom HC).
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1. Ins. by Act 38 of 1975, sec. 6 (w.e.f. 1-9-1975).
Section 94. Contributions, etc., due to corporation to have priority over other debts.
There shall be deemed to be included among the debts which, under section 49 of the Presidency-towns Insolvency Act, 1909 (3 of 1909),or under section 61 of the Provincial Insolvency Act, 1920 (5 of 1920), 1or under any law relating to insolvency in force 2in the territories which, immediately before the 1st November, 1956, were comprised in a Part B State, 3or under section 530 of the Companies Act, 1956 (1 of 1956), are in the distribution of the property of the insolvent or in the distribution of the assets of a company being wound up, to be paid in priority to all other debts, the amount due in respect of any contribution or any other amount payable under this Act the liability wherefore accrued before the date of the order of adjudication of the insolvent or the date of the winding up, as the case may be.
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1. Ins. by Act 53 of 1951, sec. 23 (w.e.f. 6-10-1951).
2. Subs. by A.O. (No. 3) 1956, for “in a Part B State”.
3. Subs. by Act 29 of 1989, sec. 42, for “or under section 230 of the Indian Companies Act, 1913 (7 of 1913)” (w.e.f. 20-10-1989).
Section 94A. Delegation of powers.
1[94A. Delegation of powers.—The Corporation, and, subject to any regulations made by the Corporation in this behalf, the Standing Committee may direct that all or any of the powers and functions which may be exercised or performed by the Corporation or the Standing Committee, as the case may be, may, in relation to such matters and subject to such conditions, if any, as may be specified, be also exercisable by any officer or authority subordinate to the Corporation.
S
Delegation of power in matter of levy may be made in favour of all officers; Regional Director, Employees’ State Insurance Corporation v. P.B. Bhaskaran, (1988) 56 FLR 9 (Summary) Ker.
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1. Ins. by Act 53 of 1951, sec. 24 (w.e.f. 6-10-1951).
Section 95. Power of central government to make rules.
(1) The Central Government may, 1after consultation with the Corporation and subject to the condition of previous publication, make rules not inconsistent with this Act for the purpose of giving effect to the provisions thereof.
(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:
2(a) the limit of wages beyond which a person shall not be deemed to be an employee;
(ab) the limit of maximum monthly salary for the purpose of sub-section (1) of section 17;
3(ac) the manner in which 4appointments and elections of members of the Corporation, the Standing Committee and the Medical Benefit Council shall be made;
(b) the quorum at meetings of the Corporation, the Standing Committee and the Medical Benefit Council and the minimum number of meetings of those bodies to be held in a year;
(c) the records to be kept of the transaction of business by the Corporation, the Standing Committee and the Medical Benefit Council;
(d) the powers and duties of the 5Director General and the Financial Commissioner and the conditions of their service;
(e) the powers and duties of the Medical Benefit Council;
6(ea) the types of expenses which may be termed as administrative expenses, the percentage of income of the corporation which may be spent for such expenses;
(eb) the rates of contributions and limits of wages below which employees are not liable to pay contribution;
(ec) the manner of calculation of the average daily wage;
(ed) the manner of certifying the certificate to recover amount by the Recovery Officer;
(ee) the amount of funeral expenses;
(ef) the qualifications, conditions, rates and period of sickness benefit, maternity benefit, disablement benefit and dependents benefit;
(eg) the conditions for grant of medical benefits for insured persons who cease to be in insurable employment on account of permanent disablement;
(eh) the conditions for grant of medical benefits for persons who have attained the age of superannuation;
07(ei) the manner in which and the time within which appeals may be filed to medical appeal tribunals or Employees’ Insurance Courts;
(f) the procedure to be adopted in the execution of contracts;
(g) the acquisition, holding and disposal of property by the Corporation;
(h) the raising and repayment of loans;
(i) the investment of the funds of the Corporation and of any provident or other benefit fund and their transfer or realisation;
(j) the basis on which the periodical valuation of the assets and liabilities of the Corporation shall be made;
(k) the bank or banks in which the funds of the Corporation may be deposited, the procedure to be followed in regard to the crediting of money accruing or payable to the Corporation and the manner in which any sums may be paid out of the Corporation funds and the officers by whom such payment may be authorised;
(l) the accounts to be maintained by the Corporation and the forms in which such accounts shall be kept and the times at which such accounts shall be audited;
(m) the publication of the accounts of the Corporation and the report of auditors, the action to be taken on the audit report, the powers of auditors to disallow and surcharge items of expenditure and the recovery of sums so disallowed or surcharged;
(n) the preparation of budget estimates and of supplementary estimates and the manner in which such estimates shall be sanctioned and published;
(o) the establishment and maintenance of provident or other benefit fund for officers and servants of the Corporation; 8
9(oa) the period of non-entitlement for cash benefit in case of conviction of an insured person;
(p) any matter which is required or allowed by this Act to be prescribed by the Central Government.
10(2A) The power to make rules conferred by this section shall include the power to give retrospective effect, from a date not earlier than the date of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interest of any person other than the Corporation to whom such rule may be applicable.
(3) Rules made under this sections shall be published in the Official Gazette and thereupon shall have effect as if enacted in this Act.
11(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 has 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 44 of 1966, sec. 38 (w.e.f. 28-1-1968).
2. Ins. by Act 29 of 1989, sec. 43 (w.e.f. 20-10-1989).
3. Clause (a) re-lettered as clause (ac) by Act 29 of 1989, sec. 43 (w.e.f. 20-10-1989).
4. Subs. by Act 29 of 1989, sec. 43, for “nominations” (w.e.f. 20-10-1989).
5. Subs. by Act 29 of 1989, sec. 43, for “Principal Officers” (w.e.f. 20-10-1989).
6. Ins. by Act 29 of 1989, sec. 43 (w.e.f. 20-10-1989).
7. Clause (ee) re-lettered as clause (ei) by Act 29 of 1989, sec. 43 (w.e.f. 20-10-1989).
8. The word “and” omitted by Act 29 of 1989, sec. 43(v) (w.e.f. 20-10-1989).
9. Ins. by Act 29 of 1989, sec. 43 (w.e.f. 20-10-1989).
10. Ins. by Act 45 of 1984, sec. 10 (w.e.f. 27-1-1985).
11. Ins. by Act 44 of 1966, sec. 38 (w.e.f. 28-1-1968).
12. Subs. by Act 38 of 1975, sec. 7, for certain words (w.e.f. 1-9-1975).
Section 96. Power of state governments to make rules.
(1) The State Government may, 1after consultation with the Corporation and, subject to the condition of previous publication, make rules not inconsistent with this Act in regard to all or any of the following matters, namely :
(a) the constitution of Employees’ Insurance Courts, the qualifications of persons who may be appointed Judges thereof, and the conditions of service of such Judges;
(b) the procedure to be followed in proceedings before such Courts and the execution of orders made by such Courts;
(c) the fee payable in respect of applications made to the Employees’ Insurance Court, the costs incidental to the proceedings in such court, the form in which applications should be made to it and the particulars to be specified in such applications;
(d) the establishment of hospitals, dispensaries and other institutions, the allotment of insured persons or their families to any such hospital, dispensary or other institution;
(e) the scale of medical benefit which shall be provided at any hospital, clinic, dispensary or institution, the keeping of medical records and the furnishing of statistical returns;
(f) the nature and extent of the staff, equipment and medicines that shall be provided at such hospitals, dispensaries and institutions;
(g) the conditions of service of the staff employed at such hospitals, dispensaries and institutions; and
(h) any other matter which is required or allowed by this Act to be prescribed by the State Government.
(2) Rules made under this section shall be published in the Official Gazette and thereupon shall have effect as if enacted in this Act.
(3) Every rule made under this section shall be laid as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or, where such Legislature consists of one House, before that House.
2[(3) Every rule made under this section shall be laid as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or, where such Legislature consists of one House, before that House.]
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1. Ins. by Act 44 of 1966, sec. 39 (w.e.f. 28-1-1968).
2. Ins. by Act 45 of 1984, sec. 11 (w.e.f. 27-1-1985).
Section 97. Power of corporation to make regulations.
(1) The Corporation may, 1[***] subject to the condition of previous publication, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation and for carrying into effect the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:—
(i) the time and place of meetings of the Corporation, the Standing Committee and the Medical Benefit Council and the procedure to be followed at such meetings;
2[(ia) the time within which and the manner in which a factory or establishment shall be registered;]
(ii) the matters which shall be referred by the Standing Committee to the Corporation for decision;
(iii) the manner in which any contribution payable under this Act shall be assessed and collected;
3[(iiia) the rate of interest higher than twelve per cent. on delayed payment of contributions;]
(iv) reckoning of wages for the purpose of fixing the contribution payable under this Act;
4[(iva) the register of employees to be maintained by the immediate employer;
(ivb) the entitlement of sickness benefit or disablement benefit for temporary disablement on any day on which person works or remains on leave or on holiday and in respect of which he receives wages or for any day on which he remains on strike;]
(v) the certification of sickness and eligibility for any cash benefit;
5[(vi) the method of determining whether an insured person is suffering from one or more of the diseases specified in the Third Schedule;]
(vii) the assessing of the money value of any benefit which is not a cash benefit;
(viii) the time within which 6[and the form and manner in which] any claim for a benefit may be made and the particulars to be specified in such claim;
(ix) the circumstances in which an employee in receipt of disablement benefit may be dismissed, discharged, reduced or otherwise punished;
(x) the manner in which and the place and time at which any benefit shall be paid;
(xi) the method of calculating the amount of cash benefit payable and the circumstances in which and the extent to which commutation of disablement and dependant’s benefits, may be allowed and the method of calculating the commutation value;
(xii) the notice of pregnancy or of confinement and notice and proof of sickness;
7[(xiia) specifying the authority competent to give certificate of eligibility for maternity benefit;
(xiib) the manner of nomination by an insured woman for payment of maternity benefit in case of her or her child’s death;
(xiic) the production of proof in support of claim for maternity benefit or additional maternity benefit;]
(xiii) the conditions under which any benefit may be suspended;
(xiv) the conditions to be observed by a person when in receipt of any benefit and the periodical medical examination of such persons;
8[***]
(xvi) the appointment of medical practitioners for the purposes of this Act, the duties of such practitioners and the form of medical certificates;
7[(xvia) the qualifications and experience which a person should possess for giving certificate of sickness;
(xvib) the constitution of medical boards and medical appeal tribunals;]
(xvii) the penalties for breach of regulations by fine (not exceeding two days’ wages for a first breach and not exceeding three days’ wages for any subsequent breach) which may be imposed on employees;
9[(xviia) the amount of damages to be recovered as penalty;
(xviib) the terms and conditions for reduction or waiver of damages in relation to a sick industrial company;]
(xviii) the circumstances in which and the conditions subject to which any regulation may be relaxed, the extent of such relaxation, and the authority by whom such relaxation may be granted;
10[(xix) the returns to be submitted and the registers or records to be maintained by the principal and immediate employers, the forms of such returns, registers or records, and the times at which such returns should be submitted and the particulars which such returns, registers and records should contain;]
(xx) the duties and powers of Inspectors and other officers and servants of the Corporation;
11[(xxi) the method of recruitment, pay and allowances, discipline, superannuation benefits and other conditions of service of the officers and servants of the Corporation other than the 12[Director General and Financial Commissioner];]
(xxii) the procedure to be followed in remitting contributions to the Corporation; and
(xxiii) any matter in respect of which regulations are required or permitted to be made by this Act.
13[(2A) The condition of previous publication shall not apply to any regulations of the nature specified in clause (xxi) of sub-section (2).]
(3) Regulations made by the Corporation shall be published in the Gazette of India and thereupon shall have effect as if enacted in this Act.
14[(4) Every regulation shall, as soon as may be, after it is made by the Corporation, be forwarded to the Central Government and that Government shall cause a copy of the same to be laid 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.]
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1. The words “with the prior approval of the Central Government” omitted by Act 29 of 1989, sec. 44 (w.e.f. 20-10-1989).
2. Ins. by Act 44 of 1966, sec. 40 (w.e.f. 28-1-1968).
3. Subs. by Act 29 of 1989, sec. 44, for clause (iiia) (w.e.f. 20-10-1989).
4. Ins. by Act 29 of 1989, sec. 44 (w.e.f. 20-10-1989).
5. Subs. by Act 44 of 1966, sec. 40, for clause (vi) (w.e.f. 28-1-1968).
6. Subs. by Act 44 of 1966, sec. 40, for “and the form in which” (w.e.f. 28-1-1968).
7. Ins. by Act 44 of 1966, sec. 40 (w.e.f. 28-1-1968).
8. Clause (xv) omitted by Act 29 of 1989, sec. 44 (w.e.f. 20-10-1989).
9. Ins. by Act 29 of 1989, sec. 44 (w.e.f. 20-10-1989).
10. Subs. by Act 53 of 1951, sec. 25, for clause (xix) (w.e.f. 6-10-1951).
11. Subs. by Act 53 of 1951, sec. 25, for clause (xxi) (w.e.f. 6-10-1951).
12. Subs. by Act 29 of 1989, sec. 44, for “Principal Officers” (w.e.f. 20-10-1989).
13. Ins. by Act 53 of 1951, sec. 25 (w.e.f. 6-10-1951).
14. Ins. by Act 45 of 1984, sec. 12 (w.e.f. 27-1-1985).
Section 98. Corporation may undertake duties in the indian states.
[Rep. by the Employees’ State Insurance (Amendment) Act, 1951 (53 of 1951), sec. 26.]
Section 99. Medical care for the families of insured persons.
1[99. Medical care for the families of insured persons.—At any time when its funds so permit, the Corporation may provide or contribute towards the cost of medical care for the families of insured persons.
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1. Subs. by Act 29 of 1989, sec. 45, for section 99 (w.e.f. 20-10-1989).
Section 99A. Power to remove difficulties.
1[99A. 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 or give such directions, not inconsistent with the provisions of this Act, as appears to it to be necessary or expedient for removing the difficulty.
(2) Any order made under this section shall have effect notwithstanding anything inconsistent therewith in any rules or regulations made under this Act.
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1. Ins. by Act 44 of 1966, sec. 41 (w.e.f. 17-6-1967).
Section 100. Repeals and savings.
1[100. Repeals and savings.—If, immediately before the day on which this Act comes into force 2[in any part of the territories which, immediately before the 1st November, 1956, were comprised in a Part B State], there is in force in 3[that part] any law corresponding to this Act, that law shall, on such day, stand repealed:
Provided that the repeal shall not affect – (a) the previous operations of any such law; or
(b) any penalty, forfeiture or punishment incurred in respect of any offence committed against any such law, or
(c) any investigation or remedy in respect of any such penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy, may be instituted continued or enforced and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed :
Provided further that subject to the preceding proviso anything done or any action taken under any such law shall be deemed to have been done or taken under the corresponding provision of this Act and shall continue in force accordingly unless and until superseded by anything done or any action taken under this Act
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1. Ins. by Act 53 of 1951, sec. 27 (w.e.f. 6-10-1951).
2. Subs. by the A.O. (No. 3) 1956, for “in a Part B State”.
3. Subs. by the A.O. (No. 3) 1956, for “that State”.
The first schedule.
OMITTED BY THE EMPLOYEES’ STATE INSURANCE (AMENDMENT) ACT, 1989, W.E.F. 1-2-1991.
The Second Schedule.
| Serial No. | Description of injury | Percentage of loss of earning capacity |
| PART I LIST OF INJURIES DEEMED TO RESULT IN PERMANENT TOTAL DISABLEMENT |
||
| 1 | Loss of both hands or amputation at higher sites | 100 |
| 2 | Loss of a hand and a foot | 100 |
| 3 | Double amputation through leg or thigh, or amputation through leg or thigh on one side and loss of other foot. | 100 |
| 4 | Loss of sight to such an extent as to render the claimant unable to perform any work for which eye sight is essential | 100 |
| 5 | Very severe facial disfigurement | 100 |
| 6 | Absolute deafness | 100 |
| PART II LIST OF INJURIES DEEMED TO RESULT IN PERMANENT PARTIAL DISABLEMENT Amputation – upper limbs (either arm) |
||
| 7 | Amputation through shoulder joint | 90 |
| 8 | Amputation below shoulder with stump less than 20.32 c.m. from tip of acrimony | 80 |
| 9 | Amputation from 20.32 c.m. from tip of acrimony to less than 11.43 c.m. below tip of olecranon | 70 |
| 10 | Loss of a hand or of the thumb and four fingers of one hand or amputation from 11.43 c.m. below tip of olecranon | 60 |
| 11 | Loss of thumb | 30 |
| 12 | Loss of thumb and its metacarpal bone | 40 |
| 13 | Loss of four fingers of one hand | 50 |
| 14 | Loss of three fingers of one hand | 30 |
| 15 | Loss of two fingers of one hand | 20 |
| 16 | Loss of terminal phalanx of thumb | 20 |
| 16A | Guillotine amputation of the tip of the thumb without loss of bone Amputation-lower limbs | 10 |
| Amputation-lower limbs | ||
| 17 | Amputation of both feet resulting in end-bearing stumps | 90 |
| 18 | Amputation through both feet proximal to the metatarso-phalangeal joint | 80 |
| 19 | Loss of all toes of both feet through the metatarso-phalangeal joint | 40 |
| 20 | Loss of all toes of both feet proximal to the proximal inter-phalangeal joint | 30 |
| 21 | Loss of all toes of both feet distal to the proximal inter-phalangeal joint | 20 |
| 22 | Amputation at hip | 90 |
| 23 | Amputation below hip with stump not exceeding 12.70 c.m. in length measured from tip of great trenchanter | 80 |
| 24 | Amputation below hip with stump exceeding 12.70 c.m. in length measured from tip of great trenchanter but not beyond middle thigh | 70 |
| 25 | Amputation below middle thigh to 8.89 c.m. below knee | 60 |
| 26 | Amputation below knee with stump exceeding 8.89 c.m. but not exceeding 12.70 c.m. | 50 |
| 27 | Amputation below knee with stump exceeding 12.70 c.m. | 50 |
| 28 | Amputation of one foot resulting in end-bearing | 50 |
| 29 | Amputation through one foot proximal to the metatarso-phalangeal joint | 50 |
| 30 | Loss of all toes of one foot through the metatarso-phalangeal joint Other injuries | 20 |
| 31 | Loss of one eye, without complications, the other being normal | 40 |
| 32 | Loss of vision of one eye without complications or disfigurement of eye-ball, the other being normal | 30 |
| 32A | Partial loss of vision of one eye Loss of – A – Fingers of right or left hand index finger | 10 |
| 33 | Whole | 14 |
| 34 | Two phalanges | 11 |
| 35 | One phalanx | 9 |
| 36 | Guillotine amputation of tip without loss of bone Middle finger | 5 |
| 37 | Whole | 12 |
| 38 | Two phalanges | 9 |
| 39 | One phalanx | 7 |
| 40 | Guillotine amputation of tip without loss of bone Ring or little finger | 4 |
| 41 | Whole | 7 |
| 42 | Two phalanges | 6 |
| 43 | One phalanx | 5 |
| 44 | Guillotine amputation of tip without loss of bone B. – Toes of right or left foot Great toe |
2 |
| 45 | Through metatarso-phalangeal joint | 14 |
| 46 | Part, with some loss of bone Any other toe | 3 |
| 47 | Through metatarso-phalangeal joint | 3 |
| 48 | Part, with some loss of bone Two toes of one foot, excluding great toe | 1 |
| 49 | Through metatarso-phalangeal joint | 5 |
| 50 | Part, with some loss of bone Three toes of one foot, excluding great toe | 2 |
| 51 | Through metatarso-phalangeal joint | 6 |
| 52 | Part, with some loss of bone Four toes of one foot, excluding great toe | 3 |
| 53 | Through metatarso-phalangeal joint | 9 |
| 54 | Part, with some loss of bone | 3 |
NOTE. – Complete and permanent loss of the use of any limb or member referred to in this Schedule shall be deemed to be the equivalent of the loss of that limb or member.
The Third Schedule.
1[THE THIRD SCHEDULE
(See section 52A)
LIST OF OCCUPATIONAL DISEASES
| No.1 | Occupational disease | Employment |
| PART A | ||
| 1 | Infectious and parasitic diseases contracted in an occupation where there is a particular risk of contamination | (a) All work involving exposure to health or laboratory work;(b) All work involving exposure to veterinary work; (c) Work relating to handling animals, animal carcasses, part of such carcasses, or merchandise which may have been contaminated by animals or animal carcasses; (d) Other work carrying a particular risk of contamination. |
| Diseases caused by work in compressed air | All work involving exposure to the risk concerned. | |
| Diseases caused by lead or its toxic compounds | All work involving exposure to the risk concerned. | |
| Poisoning by nitrous fumes | All work involving exposure to the risk concerned. | |
| Poisoning by organphosphorus compounds. | All work involving exposure to the risk concerned. | |
PART B
| Diseases caused by phosphorus or its toxic | All work involving exposure to the compounds concerned. | |
| Diseases caused by mercury or its toxic compounds | All work involving exposure to the risk concerned. | |
| Diseases caused by benzene or its toxic homologues | All work involving exposure to the risk concerned. | |
| Diseases caused by nitro and amido toxic derivatives of benzene or its homologues. | All work involving exposure to the risk concerned. | |
| Diseases caused by chromium or its toxic compounds | All work involving exposure to the risk concerned. | |
| Diseases caused by arsenic or its toxic compounds | All work involving exposure to the risk concerned. | |
| Diseases caused by radioactive substances and ionising radiations | All work involving exposure to the action of radioactive substances or ionising radiations. |
|
| Primary epithelomatous cancer of the skin caused by tar, pitch, bitumen, mineral oil, anthracene, or the compounds, products of residues of these substances | All work involving exposure to the risk concerned. | |
| Diseases caused by the toxic halogen derivatives of hydrocarbons (of the aliphatic and aromatic series) | All work involving exposure to the risk concerned. | |
| Diseases caused by carbon disulphide | All work involving exposure to the risk concerned. | |
| Occupational cataract due to infra-red radiations | All work involving exposure to the risk concerned. | |
| Diseases caused by manganese or its toxic compounds | All work involving exposure to the risk concerned. | |
| Skin diseases caused by physical, chemical or biological agents not included in other items | All work involving exposure to the risk concerned. | |
| Hearing impairment caused by noise | All work involving exposure to the risk concerned. | |
| Poisoning by dinitrophenol or a homologue or by substituted dinitrophenol or by the salts of such substances | All work involving exposure to the action of radioactive substances or ionising radiations. |
|
| Diseases caused by beryllium or its toxic compounds | All work involving exposure to the risk concerned. | |
| Diseases caused bycadmium or its toxic compounds | All work involving exposure to the risk concerned. | |
| Occupational asthama caused by recognised sensitising agents inherent to the work process | All work involving exposure to the risk concerned. | |
| Diseases caused by flourine or its toxic compounds | All work involving exposure to the risk concerned. | |
| Diseases caused by nitro-glycerine or other nitroacid esters | All work involving exposure to the risk concerned. | |
| Diseases caused by alcohols and ketones. | All work involving exposure to the risk concerned. | |
| Diseases caused by asphyxiants: carbon monoxide, and its toxic derivatives,hydrogen sulfide | All work involving exposure to the action of radioactive substances or ionising radiations. | |
| Lung cancer and mesotheliomas caused by asbestos. | All work involving exposure to the risk concerned. | |
| Primary neoplasm of the epithelial lining of the the urinary bladder or the kidney or the ureter | All work involving exposure to the risk concerned. |
PART C
| Pneumoconioses caused by sclerogenic mineral dust (silicosis, anthraoosilicosis asbestosis) and silico-tuberculosis provided that silicosis is an essential factor in causing the resultant incapacity or death | All work involving exposure to the risk concerned. | |
| Bagassosis | All work involving exposure to the risk concerned. | |
| Bronchopulmonary diseases caused by cotton, flax hemp and sisal dust (Byssinosis) | All work involving exposure to the risk concerned. | |
| Extrinsic allergic alveelitis caused by the inhalation of organic dusts | All work involving exposure to the risk concerned. | |
| Bronchopulmonary diseases caused by hard metals | All work involving exposure to the risk concerned. |
(1) This Act may be called the Motor Vehicles Act, 1988.
(2) It extends to the whole of India.
(3) It shall come into force on such date1 as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different States and any reference in this Act to the commencement of this Act shall, in relation to a State, be construed as a reference to the coming into force of this Act in that State.
1. Came into force on 1-7-1989. Vide S.O. 368 (E), dated 22nd May, 1989, published in the Gazette of India, Extra., Pt. II, Sec. 3 (ii), dated 22nd May, 1989.
In this Act, unless the context otherwise requires,-
(1) “area”, in relation to any provision of this Act, means such area as the State Government may, having regard to the requirements of that provision, specify by notification in the Official Gazette;
(2) “articulated vehicle” means a motor vehicle to which a semi-trailer is attached;
(3) “axle weight” means in relation to an axle of a vehicle the total weight transmitted by the several wheels attached to that axle to the surface on which the vehicle rests;
(4) “certificate of registration” means the certificate issued by a competent authority to the effect that a motor vehicle has been duly registered in accordance with the provisions of Chapter IV;
(5) “conductor” in relation to a stage carriage, means a person engaged in collecting fares from passengers, regulating their entrance into, or exit from, the stage carriage and performing such other functions as may be prescribed;
(6) “conductor’s licence” means the licence issued by a competent authority under Chapter III authorising the person specified therein to act as a conductor;
(7) “contract carriage” means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum-
(a) on a time basis, whether or not with reference to any route or distance; or
(b) from one point to another,and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes-
(i) a maxicab; and
(ii) a motorcar notwithstanding the separate fares are charged for its passengers;
(8) “dealer” includes a person who is engaged-
1[***]
(b) in building bodies for attachment to chassis; or
(c) in the repair of motor vehicles; or
(d) in the business of hypothecation, leasing or hire-purchase of motor vehicle;
(9) “driver” includes, in relation to a motor vehicle which is drawn by another motor vehicle, the person who acts as a steersman of the drawn vehicle;
(10) “driving licence” means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description;
(11) “educational institution bus” means an omnibus, which is owned by a college, school or other educational institution and used solely for the purpose of transporting students or staff of the educational institution in connection with any of its activities;
(12) “fares” includes sums payable for a season ticket or in respect of the hire of a contract carriage;
(13) “goods” includes livestock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle;
(14) “goods carriage” means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;
(15) “gross vehicle weight” means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle;
(16) “heavy goods vehicle” means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;
(17) “heavy passenger motor vehicle” means any public service vehicle or private service vehicle or educational institution bus or omnibus the gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12,000 kilograms;
(18) “invalid carriage” means a motor vehicle specially designed and constructed, and not merely adapted, for the use of a person suffering from some physical defect or disability, and used solely by or for such a person;
(19) “learner’s licence” means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive as a learner, a motor vehicle or a motor vehicle of any specified class or description;
(20) “licensing authority” means an authority empowered to issue licences under Chapter II or, as the case may be, Chapter III;
(21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 2[7500] kilograms;
3[(21A) “manufacturer” means a person who is engaged in the manufacture of motor vehicles;]
(22) “maxicab” means any motor vehicle constructed or adapted to carry more than six passengers, but not more than twelve passengers, excluding the driver, for hire or reward;
(23) “medium goods vehicle” means any goods carriage other than a light motor vehicle or a heavy goods vehicle;
(24) “medium passenger motor vehicle” means any public service vehicle or private service vehicle, or educational institution bus other than a motor cycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle;
(25) “motorcab” means any motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward;
(26) “motor car” means any motor vehicle other than a transport vehicle, omnibus, road-roller, tractor, motor cycle or invalid carriage;
(27) “motor cycle” means a two-wheeled motor vehicle, inclusive of any detachable side-car having an extra wheel, attached to the motor vehicle;
(28) “motor vehicle” or “vehicle” means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding 4[twenty-five cubic centimetres];
(29) “omnibus” means any motor vehicle constructed or adapted to carry more than six persons excluding the driver;
(30) “owner” means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;
(31) “permit” means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle;
(32) “prescribed” means prescribed by rules made under this Act;
(33) “private service vehicle” means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes;
(34) “public place” means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage;
(35) “public service vehicle” means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage;
(36) “registered axle weight” means in respect of the axle of any vehicle, the axle weight certified and registered by the registering authority as permissible for that axle;
(37) “registering authority” means an authority empowered to register motor vehicles under Chapter IV;
(38) “route” means a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another;
5[(39) “semi-trailer” means a vehicle not mechanically propelled (other than a trailer), which is intended to be connected to a motor vehicle and which is so constructed that a portion of it is super-imposed on, ; and a part of whose weight is borne by, that motor vehicle;] ;
(40) “stage carriage” means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or j reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey;
(41) “State Government” in relation to a Union territory means the Administrator thereof appointed under article 239 of the Constitution;
(42) “State transport undertaking” means any undertaking providing road transport service, where such undertaking is carried on by,-
(i) the Central Government or a State Government;
(ii) any Road Transport Corporation established under section 3 of the Road Transport Corporations Act, 1950 (64 of 1950);
(iii) any municipality or any corporation or company owned or controlled by the Central Government or one or more State Governments, or by the Central Government and one or more State Governments.
6[(iv) Zila Parishad or any other similar local authority.]
Explanation.-For the purposes of this clause, “road transport service” means a service of motor vehicles carrying passengers or goods or both by road for hire or reward;
(43) “tourist vehicle” means a contract carriage, constructed or adapted and equipped and maintained in accordance with such specifications as may be prescribed in this behalf;
(44) “tractor” means a motor vehicle which is not itself constructed to ; carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller;
(45) “traffic signs” includes all signals, warning sign posts, direction posts, markings on the road or other devices for the information, guidance or direction of drivers of motor vehicles;
(46) “trailer” means any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle;
(47) “transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;
(48) “unladen weight” means the weight of a vehicle or trailer including all equipment ordinarily used with the vehicle or trailer when working, but excluding the weight of a driver or attendant; and where alternative parts or bodies are used the unladen weight of the vehicle means the weight of the vehicle with the heaviest such alternative part or body;
(49) “weight” means the total weight transmitted for the time being by the wheels of a vehicle to the surface on which the vehicle rests. ;
1. Sub-clause (a) omitted by Act 54 of 1994, sec. 2 (w.e.f. 14-11-1994).
2. Subs, by Act 54 of 1994, sec. 2, for “6000” (w.e.f. 14-11-1994).
3. Ins. by Act 54 of 1994, sec. 2 (w.e.f. 14-11-1994).
4. Subs, by Act 54 of 1994, sec. 2, for “thirty-five cubic centimetres” (w.e.f. 14-11-1994).
5. Subs, by Act 54 of 1994, sec. 2, for clause (39) (w.e.f. 14-11-1994).
6. Ins. by Act 54 of 1994, sec. 2 (w.e.f. 14-11-1994).
Comment / Related Citation:
Constitution of India, Article 142 – Motor Vehicles Act, 1988, Sections 2(14) and 2(47) – MACT – Liability of insurer – Driving licence – Invalid driving license – Goods vehicle – Licence having been granted for a period of 20 years – Presumption arises that it was meant for the purpose of vehicle other than transport vehicle – Vehicle in question was goods vehicle – Insurer held not liable – In exercise of jurisdiction under Article 142 court directed insurer to deposit amount and recover from owner and driver.
ORIENTAL INSURANCE CO. LTD. v/s ANGAD KOL & ORS. [(2009) 2 SCR 695 = JT 2009 (2) SC 587 = 2009 AIR(SCW) 2747 = 2009(3) SCALE 749 = AIR 2009 SC 2151 = (2009) 11 SCC 356 = (2009) 3 SCC(Cri) 1371]
&
Motor Vehicles Act , 1988, Sections 2(14), (47), 66 – Karnataka Motor Vehicles Taxation Act, 1957, Section 3 and 16 – Tax exemption – Goods carriage – Tractor trailer – Transport vehicle – Whether the taxation authority under the Karnataka Motor Vehicles Taxation Act, 1957 was right in taxing the “tractor-trailer” as a separate and distinct vehicle, different from a tractor and denying exemption sought by the appellant under section 16 of the said 1957 Act on the ground that the tractor-trailer was a distinct category of “goods carriage” requiring permit under section 66 of the Motor Vehicles Act, 1988? – Held yes – When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods – Tractor-trailer falls under section 2(14) as a “goods carriage” and consequently, it falls under the definition of “transport vehicle” under section 2(47) of the M.V. Act, 1988. (Para, 24)
M/S. NATWAR PARIKH AND CO. LTD. v/s STATE OF KARNATAKA AND OTHERS [AIR 2005 SC 3428 = (2005) 7 SCC 364 = JT 2005 (8) SC 39 = 2005 (Supp2) SCR 1100 = (2005) 7 Scale 91]
(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than 1[a motor cab or motor cycle] hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving licence specifically entitles him so to do.
(2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.
1. Subs. by Act 54 of 1994, sec. 3, for “a motor cab” (w.e.f. 14-11-1994).
(1) No person under the age of eighteen years shall drive a motor vehicle in any public place:
Provided that 1[a motor cycle with engine capacity not exceeding 50cc] may be driven in a public place by a person after attaining the age of sixteen years.
(2) Subject to the provisions of section 18, no person under the age of twenty years shall drive a transport vehicle in any public place.
(3) No learner’s licence or driving licence shall be issued to any person to drive a vehicle of the class to which he has made an application unless he is eligible to drive that class of vehicle under this section.
1. Subs. by Act 54 of 1994, sec. 4, for “a motor cycle without gear” (w.e.f. 14-11-1994).
1. Subs. by Act 54 of 1994, sec. 4, for “a motor cycle without gear” (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988 Section. 4(5) – Accident – Bus ran over appellant’s legs – Amputation of right leg – Claim for compensation of rs.4,00,000 – Rejected by tribunal by holding that accident occurred due to negligence of appellant – H.c. granted compensation of rs.1,00,000 – Appeal in supreme court – Held, appellant aged 62 years suffered permanent disability – End of justice would be done if award enhanced to rs.2,00,000.
ZUMAR LAL v/s NAND KISHORE [(2001) ACJ 2007]
No owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle.
Comment / Related Citation:
Motor Vehicles Act, 1988, Sections 4 and 5 – MACT – Liability of insurer – Driver of vehicle at the time of accident was 15 years old – Not holding a valid and effective driving license – Owner of vehicle liable to make payment compensation and not the insurer.
UNITED INDIA INSURANCE CO.LTD v/s RAKESH KUMAR ARORA & ORS [AIR 2009 SC 24 = (2008) 13 SCC 298 = JT 2008 (11) SC 23 = 2008 AIR (SCW) 6872 = (2009) 3 SCC(Cri) 601]
(1) No person shall come while he holds any driving licence for the time being in force, hold any other driving licence except a learner’s licence or a driving licence issued in accccordance with the provisions of section 18 or a document authorising, in accccordance with the rules made under section 139, the person specified therein to drive a motor vehicle.
(2) No holder of a driving licence or a learner’s licence shall permit it to the used by any other person.
(3) Nothing in this section shall prevent a licensing authority having the jurisdiction referred to in sub-section (1) of section 9 from adding to the classes of vehicles which the driving licence authorises the holder to drive.
1 [(1) No person shall be granted a learner’s licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year.]
(2) No person under the age of eighteen years shall be granted a learner’s licence to drive a motor cycle without gear except with the consent in writing of the person having the care of the person desiring the learner’s licence.
1. Subs. by Act 54 of 1994, sec. 5, for sub-section (1) (w.e.f. 14-11-1994).
(1) Any person who is not disqualified under section 4 for driving a motor vehicle and who is not for the time being disqualified for holding or obtaining a driving licence may, subject to the provisions of section 7, apply to the licensing authority having jurisdiction in the area-
(i) in which he ordinarily resides or carries on business, or
(ii) in which the school or establishment referred to in section 12 from where he intends to receive instruction in driving a motor vehicle is situate, for the issue to him of a learner’s licence.
(2) Every application under sub-section (1) shall be in such form and shall be accompanied by such documents and with such fee as may be prescribed by the Central Government.
(3) Every application under sub-section (1) shall be accompanied by a medical certificate in such form as may be prescribed by the Central Government and signed by such registered medical practitioner, as the State Government or any person authorised in this behalf by the State Government may, by notification in the Official Gazette, appoint for this purpose:
1[Provided that no such medical certificate is required for licence to drive a vehicle other than a transport vehicle.]
(4) If, from the application or from the medical certificate referred to in subsection (3), it appears that the applicant is suffering from any disease or disability which is likely to cause the driving by him of a motor vehicle of the class which he would be authorised by the learner’s licence applied for to drive to be a source of danger to the public or to the passengers, the licensing authority shall refuse to issue the learner’s licence:
Provided that a learner’s licence limited to driving an invalid carriage may be issued to the applicant, if the licensing authority is satisfied that he is fit to drive such a carriage.
(5) No learner’s licence shall be issued to any applicant unless he passes to the satisfaction of the licensing authority such test as may be prescribed by the Central Government.
(6) When an application has been duly made to the appropriate licensing authority and the applicant has satisfied such authority of his physical fitness under sub-section (3) and has passed to the satisfaction of the licensing authority the test referred to in sub-section (5), the licensing authority shall, subject to the provisions of section 7, issue the applicant a learner’s licence unless the applicant is disqualified under section 4 for driving a motor vehicle or is for the time being disqualified for holding or obtaining a licence to drive a motor vehicle:
Provided that a licensing authority may issue a learner’s licence to drive a motor cycle or a light motor vehicle notwithstanding that it is not the appropriate licensing authority, if such authority is satisfied that there is good reason for the applicant’s inability to apply to the appropriate licensing authority.
(7) Where the Central Government is satisfied that it is necessary or expedient so to do, it may, by rules made in this behalf, exempt generally, either absolutely or subject to such conditions as may be specified in the rules, any class of persons from the provisions of sub-section (3), or sub-section (5), or both.
(8) Any learner’s licence for driving a motor cycle in force immediately before the commencement of this Act shall, after siTch commencement, be deemed to be effective for driving a motor cycle with or without gear.
1. Added by Act 54 of 1994, sec. 6 (w.e.f. 14-11-1994).
(1) Any person who is not for the time being disqualified for holding or obtaining a driving licence may apply to the licensing authority having jurisdiction in the area-
(i) in which he ordinarily resides or carries on business, or
(ii) in which the school or establishment referred to in section 12 from where he is receiving or has received instruction in driving a motor vehicle is situated.
for the issue to him of a driving licence.
(2) Every application under sub-section (1) shall be in such form and shall be accompanied by such fee and such documents as may be prescribed by the Central Government.
1[(3) If the applicant passes such test as may be prescribed by the Central Government, he shall be issued the driving licence:
Provided that no such test shall be necessary where the applicant produces proof to show that-
(a) (i) the applicant has previously held a driving licence to drive such class of vehicle and that the period between the date of expiry of that licence and the date of the application does not exceed five years, or
(ii) the applicant holds or has previously held a driving licence to drive such class of vehicle issued under section 18, or
(iii) the applicant holds a driving licence to drive such class of vehicle issued by a competent authority of any country outside India, subject to the condition that the applicant complies with the provisions of sub-section (3) of section 8,
(b) the applicant is not suffering from any disability which is likely to cause the driving by him to be a source of danger to the public; and the licensing authority may, for that purpose, require the applicant to produce a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8:
Provided further that where the application is for a driving licence to drive a motor vehicle (not being a transport vehicle), the licensing authority may exempt the applicant from the test of competence to drive a vehicle prescribed under this sub-section, if the applicant possesses a driving certificate issued by any institution recognised in this behalf by the State Government.]
(4) Where the application is for a licence to drive a transport vehicle, no such authorisation shall be granted to any applicant unless he possesses such minimum educational qualification as may be prescribed by the Central Government and a driving certificate issued by a school or establishment referred to in section 12.
2[(5) Where the applicant does not pass the test, he may be permitted to reappear for the test after a period of seven days:
Provided that where the applicant does not pass the test even after three appearances, he shall not be qualified to re-appear for such test before the expiry of a period of sixty days from the date of last such test.]
(6) The test of competence to drive shall be carried out in a vehicle of the type to which the application refers:
Provided that a person who passed a test in driving a motor cycle with gear shall be deemed also to have passed a test in driving a motor cycle without gear.
(7) When any application has been duly made to the appropriate licensing authority and the applicant has satisfied such authority of his competence to drive, the licensing authority shall issue the applicant a driving licence unless the applicant is for the time being disqualified for holding or obtaining a driving licence:
Provided that a licensing authority may issue a driving licence to drive a motor cycle or a light motor vehicle notwithstanding that it is not the appropriate licensing authority, if the licensing authority is satisfied that there is good and sufficient reason for the applicant’s inability to apply to the appropriate licensing authority:
Provided further that the licensing authority shall not issue a new driving licence to the applicant, if he had previously held a driving licence, unless it is satisfied that there is good and sufficient reason for his inability to obtain a duplicate copy of his former licence.
(8) If the licensing authority is satisfied, after giving the applicant an opportunity of being heard, that he-
(a) is a habitual criminal or a habitual drunkard; or
(b) is a habitual addict to any narcotic drug or psychotropic substance within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(c) is a person whose licence to drive any motor vehicle has, at any time earlier, been revoked,
it may, for reasons to be recorded in writing, make an order refusing to issue a driving licence to such person and any person aggrieved by an order made by a licensing authority under this sub-section may, within thirty days of the receipt of the order, appeal to the prescribed authority.
(9) Any driving licence for driving a motor cycle in force immediately before the commencement of this Act shall, after such commencement, be deemed to be effective for driving a motor cycle with or without gear.
1. Subs. by Act 54 of 1994, sec. 7, for sub-section (3) (w.e.f. 14-11-1994).
2. Subs by Act 54 of 1994, sec. 7, for sub-section (5) (w.e.f. 14-11-1994).
(1) Every learner’s licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) A learner’s licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:-
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
1[(e) transport vehicle;]
(i) road-roller;
(j) motor vehicle of a specified description.
1. Subs. by Act 54 of 1994, sec. 8, for clauses (e) to (h) (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988, Sections 3, 10 and 149 – Central Motor Vehicles Rules, 1989, Rule 51 – MACT – Liability of insurer – Driving license – Transport vehicle – Autorikshaw/delivery van – For transport vehicle driving license is effective for a period of three years – Fact that license was granted for a period of 20 years, clearly shows that driver of vehicle, was not granted a valid driving license for driving a transport vehicle – Insurer cannot be held liable.
NEW INDIAN ASSURANCE CO. LTD. v/s ROSHANBEN RAHEMANSHA FAKIR & ANR [AIR 2008 SC 2266 = (2008) 8 SCC 253 = 2008 AIR(SCW) 4048 = (2008) 3 SCC(Cri) 476]
&
Motor Vehicles Act, 1988, Sections 10(2) and 149 – MACT – Liability of insurer – Scooterist who was not holding license for driving two wheeler and holding HMV license – Insurer could not be held liable to pay the amount of compensation – Considering the nature of case insurer shall satisfy the award and can recover the same from owner of vehicle with interest.
ORIENTAL INSURANCE CO. LTD. v/s ZAHARULNISHA & ORS. [AIR 2008 SC 2218 = (2008) 12 SCC 385 = 2008 AIR(SCW) 3251 = (2009) 1 SCC(Cri) 431]
(1) Any person holding a driving licence to drive any class or description of motor vehicles, who is not for the time being disqualified for holding or obtaining a driving licence to drive any other class or description of motor vehicles, may apply to the licensing authority having jurisdiction in the area in which he resides or carries on his business in such form and accompanied by such, documents and with such fees as may be prescribed by the Central Government for the addition of such other class or description of motor vehicles to the licence.
(2) Subject to such rules as may be prescribed by the Central Government, the provisions of section 9 shall apply to an application under this section as if the said application was for the grant of a licence under that section to drive the class or description of motor vehicles which the applicant desires to be added to his licence.
(1) The Central Government may make rules for the purpose of licensing and regulating, by the State Governments, schools or establishments (by whatever name called) for imparting instruction in driving of motor vehicles and matters connected therewith.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a) licensing of such schools or establishments including grant, renewal and revocation of such licences;
(b) supervision of such schools or establishments;
(c) the form of application and the form of licence and the particulars to be contained therein;
(d) fee to be paid with the application for such licences;
(e) conditions subject to which such licences may be granted;
(f) appeals against the orders of refusal to grant or renew such licences and appeals against the orders revoking such licences;
(g) conditions subject to which a person may establish and maintain any such school or establishment for imparting instruction in driving of motor vehicles;
(h) nature, syllabus and duration of course or courses for efficient instruction in driving any motor vehicle;
(i) apparatus and equipments (including motor vehicles fitted with dual control) required for the purpose of imparting such instruction;
(j) suitability of the premises at which such schools or establishments may be established or maintained and facilities to be provided therein;
(k) qualifications, both educational and professional (including experience), which a person imparting instruction in driving a motor vehicle shall possess;
(l) inspection of such schools and establishments (including the services rendered by them and the apparatus, equipments and motor vehicles maintained by them for imparting such instruction);
(m) maintenance of records by such schools or establishments;
(n) financial stability of such schools or establishments;
(o) the driving certificates, if any, to be issued by such schools or establishments and the form in which such driving certificates shall be issued and the requirements to be complied with for the purposes of issuing such certificates;
(p) such other matters as may be necessary to carry out the purposes of this section.
(3) Where the Central Government is satisfied that it is necessary or expedient so to do, it may, by rules made in this behalf, exempt generally, either absolutely or subject to such conditions as may be specified in the rules, any class of schools or establishments imparting instruction in driving of motor vehicles or matters connected therewith from the provisions of this section.
(4) A school or establishment imparting instruction in driving of motor vehicles or matters connected therewith immediately before the commencement of this Act, whether under a licence or not, may continue to impart such instruction without a licence issued under this Act for a period of one month from such commencement, and if it has made an application for such licence under this Act within the said period of one month and such application is in the prescribed form, contains the prescribed particulars and is accompanied by the prescribed fee, till the disposal of such application by the licensing authority.
A learner’s licence or a driving licence issued under this Act shall be effective throughout India.
(1) A learner’s licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the licence.
(2) A driving licence issued or renewed under this Act shall,-
(a) in the case of a licence to drive a transport vehicle, be effective for a period of three years: 1[***]
2[Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and]
(b) in the case of any other licence,-
(i) if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of 3[fifty years] on the date of issue or, as the case may be, renewal thereof,-
(A) be effective for a period of twenty years from the date of such issue or renewal; or
(B) until the date on which such person attains the age of 3[fifty years], whichever is earlier;
4[(ii) if the person referred to in sub-clause (i), has attained the age of fifty years on the date of issue or as the case may be, renewal thereof, be effective, on payment of such fee as may be prescribed, for a period of five years from the date of such issue or renewal:]
Provided that every driving licence shall, notwithstanding its expiry under this sub-section continue to be effective for a period of thirty days from such expiry.
1. The word “and” omitted by Act 54 of 1994, sec. 9 (w.e.f. 14-11-1994).
2. Ins. by Act 54 of 1994, sec. 9 (w.e.f. 14-11-1994).
3. Subs. by Act 54 of 1994. sec. 9, for “forty years” (w.e.f. 14-11-1994).
4. Subs. by Act 54 of 1994. sec. 9, (w.e.f 14-11-1994).
(1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry:
Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal:
Provided further that where the application is for the renewal of a licence to drive a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8, and the provisions of sub-section (4) of section 8 shall, so far as may be, apply in relation to every such case as they apply in relation to a learner’s licence.
(2) An application for the renewal of a driving licence shall be made in such form and accompanied by such documents as may be prescribed by the Central Government.
(3) Where an application for the renewal of a driving licence is made previous to, or not more than thirty days after the date of its expiry, the fee payable for such renewal shall be such as may be prescribed by the Central Government in this behalf.
(4) Where an application for the renewal of a driving licence is made more than thirty days after the date of its expiry the fee payable for such renewal shall be such amount as may be prescribed by the Central Government:
Provided that the fee referred to in sub-section (3) may be accepted by the licensing authority in respect of an application for the renewal of a driving licence made under this sub-section if it is satisfied that the applicant was prevented by good and sufficient cause from applying within the time specified in such-section (3):
Provided further that if the application is made more than five years after the driving licence has ceased to be effective the licensing authority may refuse to renew the driving licence unless the applicant, undergoes and passes to its satisfaction the test of competence to drive referred to in sub-section (3) of section 9.
(5) Where the application for renewal has been rejected, the fee paid shall be I refunded to such extent and in such manner as may be prescribed by the Central Government.
(6) Where the authority renewing the driving licence is not the authority which issued the driving licence it shall intimate the fact of renewal to the authority which issued the driving licence.
Comment / Related Citation:
Motor Vehicles Act, 1988 – Section 15(1) – MACT – Driving License – Expired at time of accident – Invalid license – Policy condition violated – Driver driven vehicle got involved in accident had a driving license expired before date of accident – Renewed after more two years of accident taken place – Held that High Court has approached the contention in a very unsatisfactory manner, holding that once license has been renewed, Insurance Company liable to pay compensation – Under provision a driving license can be renewed from date of its expiry if an application is made to it for that purpose – But application for renewal of a licence made more than thirty days after date of its expiry, driving licence shall be renewed with effect from date of its renewal – Thus, vehicle driven without a valid driving licence and policy condition had been violated – Appellant Insurance Company already deposited amount covered by award to be disbursed to claimants – By permitting appellant to realize said amount from Respondent 3/ insured allowed appeal.
NATIONAL INSURANCE COMPANY LIMITED v/s JARNAIL SINGH AND OTHERS [(2007) 15 SCC 28]
&
Motor Vehicles Act, 1988, Sections 3, 15(1) and 149(2) – Central Motor Vehicles Rules, 1989, Rule 4 – Evidence Act, 1872, Sections 58 and 106 – MACT – Driving licence – Learner’s licence – As on the date of accident on 5.1.2001 the appellant-owner driver of vehicle was not duly licensed as his learner’s licence expired on 22.12.2000 – He file an application for grant of licence much later – Insurance company was not bound to reimburse him in terms of Contract of Insurance.
BHUWAN SINGH v/s M/S ORIENTAL INSURANCE COMPANY LTD. & ANR. [(2009) 5 SCC 136 = JT 2009 (3) SC 333 = 2009 AIR(SCW) 2865 = (2009) 4 SCR 195 = 2009(3) SCALE 798 = AIR 2009 SC 2177 = (2009) 2
Notwithstanding anything contained in the foregoing sections, any licensing authority may at any time revoke a driving licence or may require, as a condition of continuing to hold such driving licence, the holder thereof to produce a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8, if the licensing authority has reasonable grounds to believe that the holder of the driving licence is, by virtue of any disease of disability, unfit to drive a motor vehicle and where the authority revoking a driving licence is not the authority which issued the same, it shall intimate the fact of revocation to the authority which issued that licence.
(1) Where a licensing authority refuses to issue any learner’s licence or to issue or renew, or revokes any driving licence, or refuses to add a class or description of motor vehicle to any driving licence, it shall do so by an order communicated to the applicant or the holder, as the case may be, giving the reasons in writing for such refusal or revocation.
(2) Any person aggrieved by an order made under sub-section (1) may within thirty days of the service on him of the order, appeal to the prescribed authority which shall decide the appeal after giving such person and the authority which made the order an opportunity of being heard and the decision of the appellate authority shall be binding on the authority which made the order.
(1) Such authority as may be prescribed by the Central Government may issue driving licence valid throughout India to persons who have completed their eighteenth year to drive motor vehicles which are the property or for the time being under the exclusive control of the Central Government and are used for Government purposes relating to the defence of the country and unconnected with any commercial enterprise.
(2) A driving licence issued under this section shall specify the class or description of vehicle which the holder is entitled to drive and the period for which he is so entitled.
(3) A driving licence issued under this section shall not entitle the holder to drive any motor vehicle except a motor vehicle referred to in sub-section (1).
(1) If a licensing authority is satisfied, after giving the holder of a driving licence an opportunity of being heard, that he-
(a) is a habitual criminal or habitual drunkard; or
(b) is a habitual addict to any narcotic drug or psychotropic substance within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(c) is using or has used a motor vehicle in the commission of a cognizable offence; or
(d) has by his previous conduct as driver of a motor vehicle shown that his driving is likely to be attended with danger to the public; or
(e) has obtained any driving licence or a licence to drive a particular class or description of motor vehicle by fraud or misrepresentation; or
(f) has committed any such act which is likely to cause nuisance or danger to the public, as may be prescribed by the Central Government, having regard to the objects of this Act; or
(g) has failed to submit to, or has not passed, the tests referred to in the proviso to sub-section (3) of section 22; or
(h) being a person under the age of eighteen years who has been granted a learner’s licence or a driving licence with the consent in writing of the person having the care of the holder of the licence and has ceased to be in such care,
it may, for reasons to be recorded in writing, make an order-
(i) disqualifying that person for a specified period for holding 0n obtaining any driving licence to drive all or any classes on descriptions of vehicles specified in the licence; or
(ii) revoke any such licence.
(2) Where an order under sub-section (1) is made, the holder of a driving licence shall forthwith surrender his driving licence to the licensing authority making the order, if the driving licence has not already been surrendered, and the licensing authority shall,-
(a) if the driving licence is a driving licence issued under this Act, keep it until the disqualification has expired or has been removed; or
(b) if it is not a driving licence issued under this Act, endorse the disqualification upon it and send it to the licensing authority by which it was issued; or
(c) in the case of revocation of any licence, endorse the revocation upon it and if it is not the authority which issued the same, intimate the fact of revocation to the authority which issued that licence:
Provided that where the driving licence of a person authorises him to drive more than one class or description of motor vehicles and the order, made under sub-section (1), disqualifies him from driving any specified class or description or motor vehicles, the licensing authority shall endorse the disqualification upon the driving licence and return the same to the holder.
(3) Any person aggrieved by an order made by a licensing authority under sub-section (1) may, within thirty days of the receipt of the order, appeal to the prescribed authority, and such appellate authority shall give notice to the licensing authority and hear either party if so required by that party and may pass such order as it thinks fit and an order passed by any such appellate authority shall be final.
(1) Where a person is convicted of an offence under this Act or of an offence in the commission of which a motor vehicle was used, the court by which such person is convicted may, subject to the provisions of this Act, in addition to imposing any other punishment authorised by law, declare the person so convicted to be disqualified, for such period as the Court may specify, from holding any driving licence to drive all classes to description of vehicles, or any particular class or description of such vehicles, as are specified in such licence:
Provided that in respect of an offence punishable under section 183 no such order shall be made for the first or second offence.
(2) Where a person is convicted of an offence under clause (c) of sub-section (1) of section 132, section 134 or section 185, the Court convicting any person of any such offence shall order the disqualification under sub-section (1), and if the offence is relatable to clause (c) of sub-section (1) of section 132 or section 134, such disqualification shall be for a period of not less than one month, and if the offence is relatable to section 185, such disqualification shall be for a period of not less than six months.
(3) A Court shall, unless for special reasons to be recorded in writing it thinks fit to order otherwise, order the disqualification of a person-
(a) who having been convicted of an offence punishable under section 184 is again convicted of an offence punishable under that section,
(b) who is convicted of an offence punishable under section 189, or
(c) who is convicted of an offence punishable under section 192:
Provided that the period of disqualification shall not exceed, in the case referred to in clause (a), five years, or in the case referred to in clause (b), two years or, in the case referred to in clause (c), one year.
(4) A Court ordering the disqualification of a person convicted of an offence punishable under section 184 may direct that such person shall, whether he has previously passed the test of competence to drive as referred to in sub-section (3) of section 9 or not, remain disqualified until he has subsequent to the making of the order of disqualification passed that test to the satisfaction of the licensing authority.
(5) The court to which an appeal would ordinarily lie from any conviction of an offence of the nature specified in sub-section (1) may set aside or vary any order of disqualification made under that sub-section notwithstanding that no appeal would lie against the conviction as a result of which such order of disqualification was made.
(1) Where, in relation to a person who had been previously convicted of an offence punishable under section 184, a case is registered by a police officer on the allegation that such person has, by such dangerous driving as is referred to in the said section 184, of any class or description of motor vehicle caused the death of, or grievous hurt to, one or more persons, the driving licence held by such person shall in relation to such class or description of motor vehicle become suspended-
(a) for a period of six months from the date on which the case is registered, or
(b) if such person is discharged or acquitted before the expiry of the period aforesaid, until such discharge or acquittal, as the case may be.
(2) Where by virtue of the provisions of sub-section (1), the driving licence held by a person becomes suspended, the police officer, by whom the case referred to in sub-section (1) is registered, shall bring such suspension to the notice of the Court competent to take cognizance of such offence, and thereupon, such Court shall take possession of the driving licence, endorse the suspension thereon and intimate the fact of such endorsement to the licensing authority by which the licence was granted or last renewed.
(3) Where the person referred to in sub-section (1) is acquitted or discharged, the Court shall cancel the endorsement on such driving licence with regard to the suspension thereof.
(4) If a driving licence in relation to a particular class or description of motor vehicles is suspended under sub-section (1), the person holding such licence shall be debarred from holding or obtaining any licence to drive such particular class or description of motor vehicles so long as the suspension of the driving licence remains in force.
(1) Without prejudice to the provisions of sub-section (3) of section 20 where a person, referred to in sub-section (1) of section 21, is convicted of an offence of causing, by such dangerous driving as is referred to in section 184 of any class or description of motor vehicle the death of, or grievous hurt to, one or more persons, the Court by which such person is convicted may cancel, or suspend for such period as it may think fit, the driving licence held by such person in so far as it relates to that class or description of motor vehicle.
(2) Without prejudice to the provisions of sub-section (2) of section 20, if a person, having been previously convicted of an offence punishable under section 185 is again convicted of an offence punishable under that section, the Court, making such subsequent conviction, shall, by order, cancel the driving licence held by such person.
(3) If a driving licence is cancelled or suspended under this section, the court shall take the driving licence in its custody, endorse the cancellation or, as the case may be, suspension, thereon and send the driving licence so endorsed to the authority by which the licence was issued or last renewed and such authority shall, on receipt of the licence, keep the licence in its safe custody, and in the case of a suspended licence, return the licence to the holder thereof after the expiry of the period of suspension on an application made by him for such return:
Provided that no such licence shall be returned unless the holder thereof has, after the expiry of the period of suspension, undergone and passed, to the satisfaction of the licensing authority by which the licence was issued or last renewed, a fresh test of competence to drive referred to in sub-section (3) of section 9 and produced a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8.
(4) If a licence to drive a particular class or description of motor vehicles is cancelled or suspended under this section, the person holding such a licence shall be debarred from holding, or obtaining, any licence to drive such particular class or description of motor vehicles so long as the cancellation or suspension of the driving licence remains in force.
(1) A person in respect of whom any disqualification order is made under section 19 or section 20 shall be debarred to the extent and for the period specified in such order from holding or obtaining a driving licence and the driving licence, if any, held by such person at the date of the order shall cease to be effective to such extent and during such period.
(2) The operation of a disqualification order mad under section 20 shall not be suspended or postponed while an appeal is pending against such order or against the conviction as a result of which such order is made, unless the appellate Court so directs.
(3) Any person in respect of whom any disqualification order has been made may at any time after the expiry of six months from the date of the order apply to the Court or other authority by which the order was made, to remove the disqualification; and the Court or authority, as the case may be, may, having regard to all the circumstances, either cancel or vary the disqualification order:
Provided that where the Court or other authority refuses to cancel or vary any disqualification order under this section, a second application thereunder shall not be entertained before the expiry of a period of three months from the date of such refusal.
(1) The Court or authority making an order of disqualification shall endorse or cause to be endorsed upon the driving licence if any, held by the person disqualified, particulars of the order of disqualification and of any conviction of an offence in respect of which an order of disqualification is made; and particulars of any cancellation or variation of an order of disqualification made under sub-section (3) of section 23 shall be similarly so endorsed.
(2) A Court by which any person is convicted of an offence under this Act as may be prescribed by the Central Government, having regard to the objects of this Act, shall whether or not a disqualification order is made in respect of such conviction, endorse or cause to be endorsed particulars at such conviction on any driving licence held by the person convicted.
(3) Any person accused of an offence prescribed under sub-section (2) shall when attending the Court bring with him his driving licence if it is in his possession.
(4) Where any person is convicted of any offence under this Act and sentenced to imprisonment for a period exceeding three months, the Court awarding the sentence shall endorse the fact of such sentence upon the driving licence of the person concerned and the prosecuting authority shall intimate the fact of such endorsement to the authority by which the driving licence was granted or last renewed.
(5) When the driving licence is endorsed or caused to be endorsed by any Court, such Court shall send the particulars of the endorsement to the licensing authority by which the driving licence was granted or last renewed.
(6) Where on an appeal against any conviction or order of a Court, which has been endorsed on a driving licence, the appellate court varies or sets aside the conviction or order, the appellate court shall inform the licensing authority by which the driving licence was granted or last renewed and such authority shall amend or cause to be amended the endorsement.
(1) An endorsement on any driving licence shall be transferred to any new or duplicate driving licence obtained by the holder thereof until the holder becomes entitled under the provisions of this section to have a driving licence issued to him free from endorsement.
(2) Where a driving licence is required to be endorsed and the driving licence is not in the possession of the Court or authority by which the endorsement is to be made, then-
(a) if the person in respect of whom the endorsement is to be made is at the time the holder of a driving licence, he shall produce the driving licence to the Court or authority within five days, or such longer time as the court or authority may fix; or
(b) if, not being then the holder of a driving licence, he subsequently obtains a driving licence, he shall within five days after obtaining the driving licence produce it to the Court or authority,
and if the driving licence is not produced within the time specified, it shall, on the expiration of such time, be of no effect until it is produced for the purpose ; of endorsement.
(3) A person whose driving licence has been endorsed shall, if during a continuous period of three years after such endorsement no further endorsement has been made against him, be entitled on surrendering his driving licence and on payment of a fee of five rupees, to receive a new driving licence free from all endorsements:
Provided that if the endorsement is only in respect of an offence contravening the speed limits referred to in section 112, such person shall be entitled to receive a new driving licence free from such endorsements on the expiration of one year of the date of the endorsement:
Provided further that in reckoning the said period of three years and one year, respectively, and period during which the said person was disqualified for holding or obtaining a driving licence shall be excluded.
(1) Each State Government shall maintain, in such form as may be prescribed by the Central Government, a register to be known as the State Register of Driving Licences, in respect of driving licences issued and renewed by the licensing authorities of the State Government, containing the following particulars, namely:-
(a) names and addresses of holders of driving licences;
(b) licence numbers;
(c) dates of issue or renewal of licences;
(d) dates of expiry of licences;
(e) classes and types of vehicles authorised to be driven; and
(f) such other particulars as the Central Government may prescribe.
(2) Each State Government shall supply to the Central Government a 1[printed copy or copy in such other form as the Central Government may require], of the State Register of Driving Licences and shall inform the Central Government without delay of all additions to and other amendments in such register made from time to time.
(3) The State Register of Driving Licences shall be maintained in such manner as may be prescribed by the State Government.
1. Subs, by Act 54 of 1994, sec. 10, for “printed copy” (w.e.f. 14-11-1994).
The Central Government may make rules-
(a) regarding conditions referred to in such-section (2) of section 3;
(b) providing for the form in which the application for learner’s licence may be made, the information it shall contain and the documents to be submitted with the application referred to in sub-section (2) of section 8;
(c) providing for the form of medical certificate referred to in subsection (3) of section 8;
(d) providing for the particulars for the test referred to in sub-section (5) of section 8;
(e) providing for the form in which the application for driving licence may be made, the information it shall contain and the documents to be submitted with the application referred to in sub-section (2) of section 9;
(f) providing for the particulars regarding test of competence to drive, referred to in sub-section (3) of section 9;
(g) specifying the minimum educational qualifications of persons to whom licences to drive transport vehicles may be issued under this Act and the time within which such qualifications are to be acquired by such persons;
(h) providing for the form and contents of the licences referred to in subsection (1) of section 10;
(i) providing for the form and contents of the application referred to in sub-section (1) of section 11 and documents to be submitted with the application and the fee to be charged;
(j) providing for the conditions subject to which section 9 shall apply to an application made under section 11;
(k) providing for the form and contents of the application referred to in sub-section (1) of section 15 and the documents to accompany such application under sub-section (2) of section 15;
(l) providing for the authority to grant licences under sub-section (I) o section 18;
(m) specifying the fees payable under sub-section (2) of section 8, sub section (2) of section 9 and sub-sections (3) and (4) of section 15 for the grant of learner’s licences, and for the grant and renewal c driving licences and licences for the purpose of regulating the schools or establishments for imparting instructions in driving mote vehicles;
(n) specifying the acts for the purposes of clause (f) of sub-section (1) of section 19;
(o) specifying the offences under this Act for the purposes of sub-section (2) of section 24;
(p) to provide for all or any of the matters referred to in sub-section (1) of section 26;
(q) any other matter which is, or has to be, prescribed by the Central Government.
(1) A State Government may make rules for the purpose of carrying into effect the provisions of this Chapter other than the matters specified in section 27.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for-
(a) the appointment, jurisdiction, control and functions of licensing authorities and other prescribed authorities;
(b) the conduct and hearing of appeals that may be preferred under the Chapter, the fees to be paid in respect of such appeals and the refund of such fees:
Provided that no fee so fixed shall exceed twenty-five rupees;
(c) the issue of duplicate licences to replace licences lost, destroyed or I mutilated, the replacement of photographs which has become ‘ obsolete and the fees to be charged therefor;
(d) the badges and uniform to be worn by drivers of transport vehicles and the fees to be paid in respect of badges; ;
(e) the fee payable for the issue of a medical certificate under sub-section (3) of section 8;
(f) the exemption of prescribed persons, or prescribed classes of : persons, from payment of all or any portion of the fees payable I under this Chapter;
(g) the communication of particulars of licences granted by one licensing authority to other licensing authorities;
(h) the duties, functions and conduct of such persons to whom licences to drive transport vehicles are issued;
(i) the exemption of drivers of road-rollers from all or any of the provisions of this Chapter or of the rules made thereunder;
(j) the manner in which the State Register of Driving Licences shall be maintained under section 26;
(k) any other matter which is to be, or may be, prescribed.
(1) No person shall act as a I conductor of a stage carriage unless he holds an effective conductor’s licence issued to him authorising him to act as such conductor; and no person shall employ or permit any person who is not so licensed to act as a conductor of a stage carriage.
(2) A State Government may prescribe the conditions subject to which subsection (1) shall not apply to a driver of a stage carriage performing the functions of a conductor or to a person employed to act as a conductor for a period not exceeding one month.
(1) Any person who possesses such minimum educational qualification as may be prescribed by the State Government and is not disqualified under sub-section (1) of section 31 and who is not for the time being disqualified for holding or obtaining a conductor’s licence may apply to the licensing authority having jurisdiction in the area in which he ordinarily resides or carries on business for the issue to him of a conductor’s licence.
(2) Every application under sub-section (1) shall be in such form and shall contain such information as may be prescribed.
(3) Every application for a conductor’s licence shall be accompanied by a medical certificate in such form as may be prescribed, signed by a registered medical practitioner and shall also be accompanied by two clear copies of a recent photograph of the applicant.
(4) A conductor’s licence issued under this Chapter shall be in such form and contain such particulars as may be prescribed and shall be effective throughout the State in which it is issued.
(5) The fee for a conductor’s licence and for each renewal thereof shall be one-half of that for a driving licence.
(1) No person under the age of eighteen years shall hold, or be granted, a conductor’s licence.
(2) The licensing authority may refuse to issue a conductor’s licence-
(a) if the applicant does not possess the minimum educational qualification;
(b) if the medical certificate produced by the applicant discloses that he is physically unfit to act as a conductor; and
(c) if any previous conductor’s licence held by the applicant was revoked.
A conductor’s licence may at any time be revoked by any licensing authority if that authority has reasonable grounds to believe that the holder of the licence is suffering from any disease or disability which is likely to render him permanently unfit to hold such a licence and where the authority revoking a conductor’s licence is not the authority which issued the same, it shall intimate the fact of such revocation to the authority which issued that licence:
Provided that before revoking any licence, the licensing authority shall give the person holding such licence a reasonable opportunity of being heard.
(1) Where a licensing authority refuses to issue or renew, or revokes any conductor’s licence, it shall do so by an order communicated to the applicant or the holder, as the case may be, giving the reasons in writing for such refusal or revocation.
(2) Any person aggrieved by an order made under sub-section (1) may, within thirty days of the service on him of the order, appeal to the prescribed authority which shall decide the appeal after giving such person and the authority which made the order an opportunity of being heard and the decision of the appellate authority shall be binding on the authority which made the order.
(1) If any licensing authority is of opinion that it is necessary to disqualify the holder of a conductor’s licence for holding or obtaining such a licence on account of his previous conduct as a conductor, it may, for reasons to be recorded, make an order disqualifying that person for a specified period, not exceeding one year, for holding or obtaining a conductor’s licence:
Provided that before disqualifying the holder of a licence, the licensing authority shall give the person holding such licence a reasonable opportunity of being heard.
(2) Upon the issue of any such order, the holder of the conductor’s licence shall forthwith surrender the licence to the authority making the order, if the licence has not already been surrendered, and the authority shall keep the licence until the disqualification has expired or has been removed.
(3) Where the authority disqualifying the holder of a conductor’s licence under this section is not the authority which issued the licence, it shall intimate the fact of such disqualification to the authority which issued the same.
(4) Any person aggrieved by an order made under sub-section (1) may, within thirty days of the service on him of the order, appeal to the prescribed authority which shall decide the appeal after giving such person and the authority which made the order an opportunity of being heard and the decision of the appellate authority shall be binding on the authority which made the order.
(1) Where any person holding a conductor’s licence is convicted of an offence under this Act, the court by which such person is convicted may, in addition to imposing any other punishment authorised by law, declare the person so convicted to be disqualified for such period as the Court may specify for holding a conductor’s licence.
(2) The Court to which an appeal lies from any conviction of an offence under this Act may set aside or vary any order of disqualification made by the court below, and the court to which appeals ordinarily lie from such Court, may set aside or vary any order of disqualification made by that Court, notwithstanding that no appeal lies against the conviction in connection with which such order was made.
The provisions of sub-section (2) of section 6, sections 14, 15 and 23, sub-section (1) of section 24 and section 25 shall, so far as may be, apply in relation to a conductor’s licence, as they apply in relation to a driving licence.
If any licence to act as a conductor of a stage carriage (by whatever name called) has been issued in any State and is effective immediately before the commencement of this Act, it shall continue to be effective, notwithstanding such commencement, for the period for which it would have been effective, if this Act had not been passed, and every such licence shall be deemed to be a licence issued under this Chapter as if this Chapter has been in force on the date on which that licence was granted.
(1) A State Government may make rules for the purpose of carrying into effect the provisions of this Chapter.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for-
(a) the appointment, jurisdiction, control and functions of licensing authorities and other prescribed authorities under this Chapter;
(b) the conditions subject to which drivers of stage carriages performing the functions of a conductor and persons temporarily employed to act as conductors may be exempted from the provisions of subsection (1) of section 29;
(c) the minimum educational qualifications of conductors; their duties and functions and the conduct of persons to whom conductor’s licences are issued;
(d) the form of application for conductor’s licences or for renewal of such licences and the particulars it may contain;
(e) the form in which conductor’s licences may be issued or renewed and the particulars it may contain;
(f) the issue of duplicate licences to replace licences lost, destroyed or mutilated, the replacement of photographs which have become obsolete and the fees to be charged therefor;
(g) the conduct and hearing of appeals that may be preferred under this Chapter, the fees to be paid in respect of such appeals and the refund of such fees:
Provided that no fee so fixed shall exceed twenty-five rupees;
(h) the badges and uniform to be worn by conductors of stage carriages and the fees to be paid in respect of such badges;
(i) the grant of the certificates referred to in sub-section (3) of section 30 by registered medical practitioners and the form of such certificates;
(j) the conditions subject to which, and the extent to which, a conductor’s licence issued in another State shall be effective in the State;
(k) the communication of particulars of conductor’s licences horn one authority to other authorities; and
(l) any other matter which is to be, or may be, prescribed.
No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner:
Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government.
Subject to the provisions of section 42, section 43 and section 60, every owner of a motor vehicle shall cause the vehicle to be registered by a registering authority in whose jurisdiction he has the residence or place of business where the vehicle is normally kept.
(1) An application by or on behalf of the owner of a motor vehicle for registration shall be in such form and shall be accompanied by such documents, particulars and information and shall be made within such period as may be prescribed by the Central Government:
Provided that where a motor vehicle is jointly owned by more persons than one, the application shall be made by one of them on behalf of all the owners and such applicant shall be deemed to be the owner of the motor vehicle for the purposes of this Act.
(2) An application referred to in sub-section (1) shall be accompanied by such fee as may be prescribed by the Central Government.
(3) The registering authority shall issue to the owner of a motor vehicle registered by it a certificate of registration in such form and containing such particulars and information and in such manner as may be prescribed by the Central Government.
(4) In addition to the other particulars required to be included in the certificate of registration, it shall also specify the type of the motor vehicle, being a type as the Central Government may, having regard to the design construction and use of the motor vehicle, by notification in the Official Gazette, specify.
(5) The registering authority shall enter the particulars of the certificate referred to in sub-section (3) in a register to be maintained in such form and manner as may be prescribed by the Central Government.
(6) The registering authority shall assign to the vehicle, for display thereon, a distinguishing mark (in this Act referred to as the registration mark) consisting of one of the groups of such of those letters and followed by such letters and figures as are allotted to the State by the Central Government from time to time by notification in the Official Gazette, and displayed and shown on the motor vehicle in such form and in such manner as may be prescribed by the Central Government.
(7) A certificate of registration issued under sub-section (3), whether before or after the commencement of this Act, in respect of a motor vehicle, other than a transport vehicle, shall, subject to the provisions contained in this Act, be valid only for a period of fifteen years from the date of issue of such certificate and shall be renewable.
(8) An application by or on behalf of the owner of a motor vehicle, other than a transport vehicle, for the renewal of a certificate of registration shall be made within such period and in such form, containing such particulars and information as may be prescribed by the Central Government.
(9) An application referred to in sub-section (8) shall be accompanied by such fee as may be prescribed by the Central Government.
(10) Subject to the provisions of section 56, the registering authority may, on receipt of an application under sub-section (8), renew the certificate of registration for a period of five years and intimate the fact to the original registering authority, if it is not the original registering authority.
(11) If the owner fails to make an application under sub-section (1), or, as the case may be, under sub-section (8) within the period prescribed, the registering authority may, having regard to the circumstances of the case, require the owner to pay, in lieu of any action that may be taken against him under section 177, such amount not exceeding one hundred rupees as may be prescribed under subsection (13):
Provided that action under section 177 shall be taken against the owner where the owner fails to pay the said amount.
(12) Where the owner has paid the amount under sub-section (11), no action shall be taken against him under section 177.
(13) For the purposes of sub-section (11), the State Government may prescribe different amounts having regard to the period of delay on the part of the owner in making an application under sub-section (1) or sub-section (8).
(14) An application for the issue of a duplicate certificate of registration shall be made to the 1[last registering authority] in such form, containing such particulars and information along with such fee as may be prescribed by the Central Government.
1. Subs. by Act 54 of 1994, sec. 11, for “original registering authority” (w.e.f. 14-11-1994).
STATE AMENDMENT
Rajasthan:
In its application to the State of Rajasthan, in section 41,-
(a) in sub-sections (7) and (8), the expression, “other than a transport vehicle,” shall be omitted;
(b) after sub-section (7) so amended, insert the following proviso, namely:-
“Provided that in the case of transport vehicles, State Government may require the transport vehicles to be re-registered in the manner prescribed, subject to the age limit, if any, prescribed under section 59 of the Act.”; and
(c) in sub-section (10), after the words “for a period of five years” and before the words “and intimate”, the expression “on payment of all taxes, penalties and interest, if any, levied by the State Government” shall be inserted.
[Rajasthan Act 1 of 2002, sec. 2 (w.e.f. 13-3-2002).]
Comment / Related Citation:
Constitution of India, Article 226 – Motor Vehicles Act, 1988, Section 2(28),41(6) – High Security Registration Plates – Notice inviting tenders – Policy decision – First NIT issued in the month of July, 2003 fixing 6.8.2003 as the last date for submission of tender process – The finalization of tender process could not take place because of interim order passed by the Apex Court – Cases decided on 30.11.2004 – In interregnum considerable number of indigenous manufactured obtained the requisite TAC from the approved institutions as per the provisions of the 1988 Act and thereby acquired capacity and ability to manufacturer HSRP – Held that once a particular matter relating to condition in NIT has been finally decided by the High Court, the State Government, which was party to the litigation, ought to have proceeded accordingly – In a case such as the present one, where the circumstances changed in some material respects, departure from the earlier policy cannot be held to be legally flawed, particularly when there is no challenge to the changed police reflected in second NIT on the ground of Wednesbury reasonableness or principle of legitimate expectation or arbitrariness or irrationality.
SHIMNIT UTSCH INDIA PVT. LTD. & ANR. v/s WEST BENGAL TRANSPORT INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. & ORS. [(2010) 6 SCC 303 = 2010 AIR(SCW) 3974 = 2010(5) SCALE 617 = (2010) 6 SCR 1110 = JT 2010 (5) SC 237]
&
Motor Vehicles Act, 1988, Section 41(6) – Motor Vehicles Rules, 1989, Rule 50 – High Security Registration Plates Order 2001 -Motor Vehicles – High Security Registration Plates – State and Union Territories directed to take definite decision within a period of six months as to whether there is need for giving effect to the amended Rule 50 and the Scheme of High Security Registration Plates Order and the modalities to followed.
MANINDERJIT SINGH BITTA v/s UNION OF INDIA & ORS. [(2008) 7 SCC 328]
(1) Where an application for registration of a motor vehicle is made under sub-section (1) of section 41 by or on behalf of any diplomatic officer or consular officer, then, notwithstanding anything contained in sub-section (3) or sub-section (6) of that section, the registering authority shall register the vehicle in such manner and in accordance with such procedure as may be provided by rules made in this behalf by the Central Government under sub- -section (3) and shall assign to the vehicle for display thereon a special registration mark in accordance with the provisions contained in those rules and shall issue a certificate (hereafter in this section referred to as the certificate of registration) that the vehicle has been registered under this section; and any vehicle so registered shall not, so long as it remains the property of any diplomatic officer or consular officer, require to be registered otherwise under this Act.
(2) If any vehicle registered under this section ceases to be the property of any diplomatic officer or consular officer, the certificate of registration issued under this section shall also cease to be effective, and the provisions of sections 39 and 40 shall thereupon apply.
(3) The Central Government may make rules for the registration of motor vehicles belonging to diplomatic officers and consular officers regarding the procedure to be followed by the registering authority for registering such vehicles, the form in which the certificates of registration of such vehicles are to be issued, the manner in which such certificates of registration are to be sent to the owners of the vehicles and the special registration marks to be assigned to such vehicles.
(4) For the purposes of this section, “diplomatic officer” or “consular officer” means any person who is recognised as such by the Central Government and if any question arises as to whether a person is or is not such an officer, the decision of the Central Government thereon shall be final.
(1) Notwithstanding anything contained in section 40 the owner of a motor vehicle may apply to any registering authority or other prescribed authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark.
(2) A registration made under this section shall be valid only for a period not exceeding one month, and shall not be renewable:
Provided that where a motor vehicle so registered is a chassis to which a body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted 1[with a body or any unforeseen circumstances beyond the control of the owner], the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods as the registering authority or other prescribed authority, as the case may be, may allow.
2[(3) In a case where the motor vehicle is held under hire-purchase agreement, lease or hypothecation, the registering authority or other prescribed authority shall issue a temporary certificate of registration of such vehicle, which shall incorporate legibly and prominently the full name and address of the person with whom such agreement has been entered into by the owner.]
1. Subs. by Act 54 of 1994, sec. 12, for “with a body” (w.e.f. 14-11-1994).
2. Ins. by Act 54 of 1994, sec. 12 (w.e.f. 14-11-1994).
The registering authority shall before proceeding to register a motor vehicle or renew the certificate of registration in respect of a motor vehicle, other than a transport vehicle, require the person applying for registration of the vehicle or, as the case may be, for renewing the certificate of registration to produce the vehicle either before itself or such authority as the State Government may by order appoint in order that the registering authority may satisfy itself that the particulars contained in the application are true and that the vehicle complies with the requirements of this Act and of the rules made thereunder.
The registering authority may, by order, refuse to register any motor vehicle, or renew the certificate of registration in respect of a motor vehicle (other than a transport vehicle), if in either case, the registering authority has reason to believe I that it is a stolen motor vehicle or the vehicle is mechanically defective or fails to comply with the requirements of this Act or of the rules made thereunder, or if the applicant fails to furnish particulars of any previous registration of the vehicle or furnishes inaccurate particulars in the application for registration of the vehicle or, as the case may be, for renewal of the certificate or registration thereof and the registering authority shall furnish the applicant whose vehicle is refused registration, or whose application for renewal of the certificate of registration is refused, a copy of such order, together with the reasons for such refusal.
Subject to the provisions of section 47, a motor vehicle registered in accordance with this Chapter in any State shall not require to be registered elsewhere in India and a certificate of registration issued or in force under this Act in respect of such vehicle shall be effective throughout India.
(1) When a motor vehicle registered in one State has been kept in another State, for a period exceeding twelve months, the owner of the vehicle shall, within such period and in such form containing such particulars as may be prescribed by the Central Government, apply to the registering authority, within whose jurisdiction the vehicle then is, for the assignment of a new registration mark and shall present the certificate of registration to that registering authority:
Provided that an application under this sub-section shall be accompanied-
(i) by the no objection certificate obtained under section 48, or
(ii) in a case where no such certificate has been obtained, by-
(a) the receipt obtained under sub-section (2) of section 48; or
(b) the postal acknowledgment received by the owner of the vehicle if he has sent an application in this behalf by registered post acknowledgment due to the registering authority referred to in section 48,
together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted:
Provided further that, in a case where a motor vehicle is held under a hire-purchase, lease or hypothecation agreement, an application under this subsection shall be accompanied by a no objection certificate from the person with whom such agreement has been entered into, and the provisions of section 51, so far as may be, regarding obtaining of such certificate from the person with whom such agreement has been entered into, shall apply.
(2) The registering authority, to which application is made under sub-section (1), shall after making such verification, as it thinks fit, of the returns, if any, received under section 62, assign the vehicle a registration mark as specified in sub-section (6) of section 41 to be displayed and shown thereafter on the vehicle and shall enter the mark upon the certificate of registration before returning it to the applicant and shall, in communication with the registering authority by whom the vehicle was previously registered, arrange for the transfer of the registration of the vehicle from the records of that registering authority to its own records.
(3) Where a motor vehicle is held under a hire-purchase or lease or hypothecation agreement, the registering authority shall, after assigning the vehicle a registration mark under sub-section (2), inform the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into the hire-purchase or lease or hypothecation agreement (by sending to such person a notice by registered post acknowledgment due at the address of such person entered in the certificate of registration the fact of assignment of the said registration mark).
(4) A State Government may make rules under section 65 requiring the owner of a motor vehicle not registered within the State, which is brought into or is for the time being in the State, to furnish to the prescribed authority in the State such information with respect to the motor vehicle and its registration as may be prescribed.
(5) If the owner fails to make an application under sub-section (1) within the period prescribed, the registering authority may, having regard to the circumstances of the case, require the owner to pay, in lieu of any action that may be taken against him under section 177, such amount not exceeding one hundred rupees as may be prescribed under sub-section (7):
Provided that action under section 177 shall be taken against the owner where the owner fails to pay the said amount.
(6) Where the owner has paid the amount under sub-section (5), no action shall be taken against him under section 177.
(7) For the purposes of sub-section (5), the State Government may prescribe different amounts having regard to the period of delay on the part of the owner in making an application under sub-section (1).
(1) The owner of a motor vehicle when applying for the assignment of a new registration mark under sub-section (1) of section 47, or where the transfer of a motor vehicle is to be effected in a State other than the State of its registration, the transferor of such vehicle where reporting the transfer under sub-section (1) of section 50, shall make an application in such form and in such manner as may be prescribed by the Centra Government to the registering authority by which the vehicle was registered for the issue of a certificate (hereafter in this section referred to as the no objection certificate), to the effect that the registering authority has no objection for assigning a new registration mark to the vehicle or, as the case may be, for entering the particulars of the transfer of ownership in the certificate o registration.
(2) The registering authority shall, on receipt of an application under sub-section (1), issue a receipt in such form as may be prescribed by the Centra Government.
(3) On receipt of an application under sub-section (1), the registering authority may, after making such inquiry and requiring the applicant to comply with such directions as it deems fit and within thirty days of the receipt thereof by order in writing, communicate to the applicant that it has granted or refused to grant the no objection certificate:
Provided that a registering authority shall not refuse to grant the no objection certificate unless it has recorded in writing the reasons for doing so and a copy of the same has been communicated to the applicant.
(4) Where within a period of thirty days referred to in sub-section (3), the registering authority does not refuse to grant the no objection certificate or does not communicate the refusal to the applicant, the registering authority shall be deemed to have granted the no objection certificate.
(5) Before granting of refusing to grant the no objection certificate, the registering authority shall obtain a report in writing from the police that no case relating to the theft of the motor vehicle concerned has been reported or is pending, verify whether all the amounts due to Government including road tax in respect of that motor vehicle have been paid and take into account such other factors as may be prescribed by the Central Government.
1[(6) The owner of the vehicle shall also inform at the earliest, in writing, the registering authority about the theft of his vehicle together with the name of the police station where the theft report was lodged, and the registering authority shall take into account such report while disposing of any application for no objection certification, registration, transfer of ownership or issue of duplicate registration certificate].
1. Ins. by Act 54 of 1994, sec. 13 (w.e.f. 14-11-1994).
(1) If the owner of a motor vehicle ceases to reside or have his place of business at the address recorded in the certificate of registration of the vehicle, he shall, within thirty days of any such change of address, intimate in such form accompanied by such documents as may be prescribed by the Central Government, his new address, to the registering authority by which the certificate of registration was issued, or, if the new address is within the jurisdiction of another registering authority, to that other registering authority, and shall at the same time forward the certificate of registration to the registering authority or, as the case may be, to the other registering authority in order that the new address may be entered therein.
(2) If the owner of a motor vehicle fails to intimate his new address to the concerned registering authority within the period specified in sub-section (1), the registering authority may, having regard to the circumstances of the case, require the owner to pay, in lieu of any action that may be taken against him under section 177, such amount not exceeding one hundred rupees as may be prescribed under sub-section (4):
Provided that action under section 177 shall be taken against the owner where he fails to pay the said amount.
(3) Where a person has paid the amount under sub-section (2), no action shall be taken against him under section 177.
(4) For the purposes of sub-section (2), a State Government may prescribe different amounts having regard to the period of delay in intimating his new address.
(5) On receipt of intimation under sub-section (1), the registering authority may, after making such verification as it may think fit, cause the new address to be entered in the certificate of registration.
(6) A registering authority other than the original registering authority making any such entry shall communicate the altered address to the original registering authority.
(7) Nothing in sub-section (1) shall apply where the change of the address recorded in the certificate of registration is due to a temporary absence not intended to exceed six months in duration or where the motor vehicle is neither used nor removed from the address recorded in the certificate of registration.
(1) Where the ownership of any motor vehicle registered under this Chapter is transferred,
(a) the transferor shall,-
(i) in the case of a vehicle registered within the same State, within fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may be prescribed by the Central Government to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee; and
(ii) in the case of a vehicle registered outside the State, within forty-five days of the transfer, forward to the registering authority referred to in sub-clause (i)-
(A) the no objection certificate obtained under section 48; or
(B) in a case where no such certificate has been obtained,-
(I) the receipt obtained under sub-section (2) of section 48; or
(II) the postal acknowledgment received by the transferee if he has sent an application in this behalf by registered post acknowledgment due to the registering authority referred to in section 48,
together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted;
(b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration.
(2) Where-
(a) the person in whose name a motor vehicle stands registered dies, or
(b) a motor vehicle has been purchased or acquired at a public auction conducted by, or on behalf of, Government,
the person succeeding to the possession of the vehicle or, as the case may be, who has purchased or acquired the motor vehicle, shall make an application for the purpose of transferring the ownership of the vehicle in his name, to the registering authority in whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, in such manner, accompanied with such fee, and within such period as may be prescribed by the Central Government.
(3) If the transferor or the transferee fails to report to the registering authority the fact of transfer within the period specified in clause (a) or clause (b) of subsection (1), as the case may be, or if the person who is required to make an application under sub-section (2) (hereafter in this section referred to as the other person) fails to make such application within the period prescribed, the registering authority may, having regard to the circumstances of the case, require the transferor or the transferee, or the other person, as the case may be, to pay, in lieu of any action that may be taken against him under section 177 such amount not exceeding one hundred rupees as may be prescribed under subsection (5):
Provided that action under section 177 shall be taken against the transferor or the transferee or the other person, as the case may be, where he fails to pay the said amount.
(4) Where a person has paid the amount under sub-section (3), no action shall be taken against him under section 177.
(5) For the purposes of sub-section (3), a State Government may prescribe different amounts having regard to the period of delay on the part of the transferor or the transferee in reporting the fact of transfer of ownership of the motor vehicle or of the other person in making the application under sub-section (2).
(6) On receipt of a report under sub-section (1), or an application under subsection (2), the registering authority may cause the transfer of ownership to be entered in the certificate of registration.
(7) A registering authority making any such entry shall communicate the transfer of ownership to the transferor and to the original registering authority, if it is not the original registering authority.
Comment / Related Citation:
Motor Vehicles Act, 1988 – Section 168 and 50 – MACT – Transfer of vehicle – Liability – High Court held that the appellant alone was liable to pay the compensation because the name of the appellant continued in the records of RTO. Held: Where ownership of the vehicle stood transferred, person in actual possession of the vehicle as well as the person in whose name the vehicle stood in RTO records would be liable to the third party who was injured in the accident. However, the person in actual possession would also be liable.
P.P. MOHAMMED v/s K. RAJAPPAN AND OTHERS [(2008) 17 SCC 624]
(1) Where an application for registration of a motor vehicle which is held under a hire-purchase, lease or hypothecation agreement (hereafter in this section referred to as the said agreement) is made, the registering authority shall make an entry in the certificate of registration regarding the existence of the said agreement.
(2) Where the ownership of any motor vehicle registered under this Chapter is transferred and the transferee enters into the said agreement with any person, the 1[last registering authority] shall, on receipt of an application in such form as the Central Government may prescribe from the parties to the said agreement, make an entry as to the existence of the said agreement in the certificate of registration 2fand an intimation in this regard shall be sent to the original registering authority if the last registering authority is not the original registering authority].
(3) Any entry made under sub-section (1) or sub-section (2), may be cancelled by the 1[last registering authority] on proof of the termination of the said agreement by the parties concerned on an application being made in such form as the Central Government may prescribe 2[and an intimation in this behalf shall be sent to the original registering authority if the last registering authority is not the original registering authority].
(4) No entry regarding the transfer of ownership of any motor vehicle which is held under the said agreement shall be made in the certificate of registration except with the written consent of the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into the said agreement.
(5) Where the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into the said agreement, satisfies the registering authority that he has taken possession of the vehicle 3[from the registered owner] owing to the default of the registered owner under the provisions of the said agreement and that the registered owner refuses to deliver the certificate of registration or has absconded, such authority may, after giving the registered owner an opportunity to make such representation as he may wish to make (by sending to him a notice by registered post acknowledgment due at his address entered in the certificate of registration) and notwithstanding that the certificate of registration is not produced before it, cancel the certificate and issue a fresh certificate of registration in the name of the person with whom the registered owner has entered into the said agreement:
Provided that a fresh certificate of registration shall not be issued in respect of a motor vehicle, unless such person pays the prescribed fee:
Provided further that a fresh certificate of registration issued in respect of a motor vehicle, other than a transport vehicle, shall be valid only for the remaining period for which the certificate cancelled under this sub-section would have been in force.
(6) The registered owner shall, before applying to the appropriate authority, for the renewal of a permit under section 81 or for the issue of duplicate certificate of registration under sub-section (14) of section 41, or for the assignment of a new registration mark 4[under section 47, or removal of the vehicle to another State, or at the time of conversion of the vehicle from one class to another, or for issue of no objection certificate under section 48, or for change of residence or place of business under section 49, or for the alteration of the vehicle under section 52, make an application] to the person with whom the registered owner has entered into the said agreement, (such person being hereafter in this section referred to as the financier) for the issue of a no objection certificate (hereafter in this section referred to as the certificate).
Explanation.-For the purposes of this sub-section and sub-sections (8) and (9), “appropriate authority” in relation to any permit, means the authority which is authorised by this Act to renew such permit and, in relation to registration means the authority which is authorised by this Act to issue duplicate certificate of registration or to assign a new registration mark.
(7) Within seven days of the receipt of an application under sub-section (6) the financier may issue, or refuse, for reasons which shall be recorded in writing communicate to the applicant, to issue, the certificate applied for, and where the financier fails to issue the certificate and also fails to communicate the reasons for refusal to issue the certificate to the applicant within the said period of seven days, the certificate applied for shall be deemed to have been issued by the financier.
(8) The registered owner shall, while applying to the appropriate authority for the renewal of any permit under section 81, or for the issue of a duplicate certificate of registration under sub-section (14) of section 41, or while applying for assignment of a new registration mark under section 47, submit with such application the certificate, if any, obtained under sub-section (7) or, where no such certificate has been obtained, the communication received from the financier under that sub-section, or, as the case may be, a declaration that he has not received any communication from the financier within the period of seven days specified in that sub-section.
(9) On receipt of an application for the renewal of any permit or for the issue of duplicate certificate of registration or for assignment of a new registration mark in respect of a vehicle which is held under the said agreement, the appropriate authority may, subject to the other provisions of this Act,-
(a) in a case where the financier has refused to issue the certificate applied for, after giving the applicant an opportunity of being heard, either-
(i) renew or refuse to renew the permit, or
(ii) issue or refuse to issue the duplicate certificate of registration, or
(iii) assign or refuse to assign a new registration mark;
(b) in any other case,-
(i) renew the permit, or
(ii) issue duplicate certificate of registration, or
(iii) assign a new registration mark.
(10) A registering authority making an entry in the certificate of registration regarding-
(a) hire-purchase, lease or hypothecation agreement of a motor vehicle, or
(b) the cancellation under sub-section (3) of an entry, or
(c) recording transfer of ownership of motor vehicle, or
(d) any alteration in a motor vehicle, or
(e) suspension or cancellation of registration of a motor vehicle, or
(f) change of address,
shall communicate 5[by registered post acknowledgment due] to the financier that such entry has been made.
6[(11) A registering authority registering the new vehicle, or issuing the duplicate certificate of registration or a no objection certificate or a temporary certificate of registration, or issuing or renewing, a fitness certificate or substituting entries relating to another motor vehicle in the permit, shall intimate the financier of such transaction.
(12) The registering authority where it is not the original registering authority, when making entry under sub-section (1) or sub-section (2), or cancelling the said entry under sub-section (3) or issuing the fresh certificate of registration under sub-section (5) shall communicate the same to the original registering authority.]
1. Subs. by Act 54 of 1994, sec. 14, for “original registering authority” (w.e.f. 14-11-1994).
2. Added by Act 54 of 1994. sec. 14 (w.e.f. 14-11-1994).
3. Ins. by Act 54 of 1994, sec. 14 (w.e.f. 14-11-1994).
4. Subs. by Act 54 of 1994, sec. 14, for “under section 47, make an application” (w.e.f. 14-11-1994).
5. Ins. by Act 54 of 1994, sec. 14 (w.e.f. 14-11-1994).
6. Sub., by Act 54 of 1994, sec 14, for sub-section (11) (w.e.f. 14-11-1994).
(1) No owner of a motor vehicle shall so alter the vehicle that the particulars contained in the certificate of registration are at variance with those originally specified by the manufacturer:
Provided that where the owner of a motor vehicle makes modification of the engine, or any part thereof, of a vehicle for facilitating its operation by different type of fuel or source of energy including battery, compressed natural gas, solar power, liquid petroleum gas or any other fuel or source of energy, by fitment of a conversion kit, such modification shall be carried out subject to such conditions as may be prescribed:
Provided further that the Central Government may prescribe specifications, conditions for approval, retrofitment and other related matters for such conversion kits:
Provided also that the Central Government may grant exemption for alteration of vehicles in a manner other than specified above, for any specific purpose.
(2) Notwithstanding anything contained in sub-section (1), a State Government may, by notification in the Official Gazette, authorise, subject to such conditions as may be specified in the notification, and permit any person owning not less than ten transport vehicles to alter any vehicle owned by him so as to replace the engine thereof with engine of the same make and type, without the approval of registering authority.
(3) Where any alteration has been made in motor vehicle without the approval of registering authority or by reason of replacement of its engine without such approval under sub-section (2), the owner of the vehicle shall,, within fourteen days of the making of the alteration, report the alteration to the registering authority within whose jurisdiction he resides and shall forward the certificate of registration to that authority together with the prescribed fee in order that particulars of registration may be entered therein.
(4) A registering authority other than the original registering authority making any such entry shall communicate the details of the entry to the original registering authority.
(5) Subject to the provisions made under sub-sections (1), (2), (3) and (4), no person holding a vehicle under a hire-purchase agreement shall make any alteration to the vehicle except with the written consent of the registered owner.
Explanation.-For the purposes of this section, “alteration” means a change in the structure of a vehicle which results in a change in its basic feature.].
1. Subs. by Act 27 of 2000, sec. 2, for section 52 (w.e.f. 11-8-2000).
Comment / Related Citation:
Constitution of India, Article 226 – Motor Vehicles Act, 1988, Sections 39 and 52 – Mobile hoarding vans – Registered as Goods carrying vehicle, or display vehicles – After their modification and transformation necessitates grant of fresh certificates of Registration – Authorities under Motor Vehicles Act to decide such issue and not the Court.
SUPRI ADVERTISING & ENTERTAINMENT PVT. LTD. v/s DR. ANAHITA PANDOLE & ORS. [(2008) 10 SCC 246 = JT 2008 (10) SC 655 = 2008 AIR(SCW) 6168]
(1) If any registering authority or other prescribed authority has reason to believe that any motor vehicle within its jurisdiction-
(a) is in such a condition that its use in a public place would constitute a danger to the public, or that it fails to comply with the requirements of this Act or of the rules made thereunder, or
(b) has been, or is being, used for hire or reward without a valid permit for being used as such,
the authority may, after giving the owner an opportunity of making any representation he may wish to make (by sending to the owner a notice by registered post acknowledgment due at his address entered in the certificate of registration), for reasons to be recorded in writing, suspend the certificate of registration of the vehicle-
(i) in any case falling under clause (a), until the defects are rectified to its satisfaction; and
(ii) in any case falling under clause (b), for a period not exceeding four months.
(2) An authority other than a registering authority shall when making a suspension order under sub-section (1), intimate in writing the fact of such suspension and the reasons therefor to the registering authority within whose jurisdiction the vehicle is at the time of the suspension.
(3) Where the registration of a motor vehicle has been suspended under subsection (1) for a continuous period of not less than one month, the registering authority, within whose jurisdiction the vehicle was when the registration was suspended, shall, if it is not the original registering authority, inform that authority of the suspension.
(4) The owner of a motor vehicle shall, on the demand of a registering authority or other prescribed authority which has suspended the certificate of registration of the vehicle under this section, surrender the certificate of registration.
(5) A certificate of registration surrendered under sub-section (4) shall be returned to the owner when the order suspending registration has been rescinded and not before.
When the suspension of registration of a vehicle under section 53 has continued without interruption for a period of not less than six months, the registering authority within whose jurisdiction the vehicle was when the registration was suspended, may, if it is the original registering authority, cancel the registration, and if it is not the original registering authority, shall forward the certificate of registration to that authority which may cancel the registration.
(1) If a motor vehicle has been destroyed or has been rendered permanently incapable of use, the owner shall, within fourteen days or as soon as may be, report the fact to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward to the authority the certificate of registration of the vehicle.
(2) The registering authority shall, if it is the original registering authority, cancel the registration and the certificate of registration, or, if it is not, shall forward the report and the certificate of registration to the original registering authority and that authority shall cancel the registration.
(3) Any registering authority may order the examination of a motor vehicle within its jurisdiction by such authority as the State Government may by order appoint and, if upon such examination and after giving the owner an opportunity to make any representation he may wish to make (by sending to the owner a notice by registered post acknowledgment due at his address entered in the certificate of registration), it is satisfied that the vehicle is in such a condition that it is incapable of being used or its use in a public place would constitute a danger to the public and that it is beyond reasonable repair, may cancel the registration.
(4) If a registering authority is satisfied that a motor vehicle has been permanently removed out of India, the registering authority shall cancel the registration.
(5) If a registering authority is satisfied that the registration of a motor vehicle has been obtained on the basis of documents which were, or by representation of facts which was, false in any material particular, or the engine number or the chassis number embossed thereon are different from such number entered in the certificate of registration, the registering authority shall after giving the owner an opportunity to make such representation as he may wish to make (by sending to the owner a notice by registered post acknowledgment due at his address entered in the certificate of registration), and for reasons to be recorded in writing, cancel the registration.
(6) A registering authority cancelling the registration of a motor vehicle under section 54 or under this section shall communicate such fact in writing to the owner of the vehicle, and the owner of the vehicle shall forthwith surrender to that authority the certificate of registration of the vehicle.
(7) A registering authority making an order of cancellation under section 54 or under this section shall, if it is the original registering authority, cancel the certificate of registration and the entry relating to the vehicle in its records, and, if it is not the original registering authority, forward the certificate of registration to that authority, and that authority shall cancel the certificate of registration and the entry relating to the motor vehicle in its records.
(8) The expression “original registering authority” in this section and in sections 41, 49, 50, 52, 53 and 54 means the registering authority in whose records the registration of the vehicle is recorded.
(9) In this section “certificate of registration” includes a certificate of registration renewed under the provisions of this Act.
(1) Subject to the provisions of sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorized testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made thereunder:
Provided that where the prescribed authority or the “authorized testing station” refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal.
(2) The “authorized testing station” referred to in sub-section (1) means a vehicle service station or public or private garage which the State Government, having regard to the experience, training and ability of the operator of such station or garage and the testing equipment and the testing personnel therein, may specify in accordance with the rules made by the Central Government for regulation and control of such stations or garages.
(3) Subject to the provisions of sub-section (4), certificate of fitness shall remain effective for such period as may be prescribed by the Central Government having regard to the objects of this Act.
(4) The prescribed authority may for reasons to be recorded in writing cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of this Act and the rules made thereunder; and on such cancellation the certificate of registration of the vehicle and any permit granted in respect of the vehicle under Chapter V shall be deemed to be suspended until a new certificate of fitness has been obtained:
1[Provided that no such cancellation shall be made by the prescribed authority unless such prescribed authority holds such technical qualification as may be prescribed or where the prescribed authority does not hold such technical qualification on the basis of the report of an officer having such qualifications.]
(5) A certificate of fitness issued under this Act shall, while it remains effective be valid throughout India.
1. Ins. by Act 54 of 1994, sec. 16 (w.e.f. 14-11-1994).
1[(1) Any person aggrieved by an order of the registering I authority under section 41, 42, 43, 45, 47, 48, 49, 50, 52, 53, 55 or 56 may, within thirty days of the date on which he has received notice of such order, appeal against the order to the prescribed authority.]
(2) The appellate authority shall give notice of the appeal to the original authority and after giving an opportunity to the original authority and the appellant to be heard in the appeal pass such order as it thinks fit.
1. Subs, by Act 54 of 1994, sec. 17, for sub-section (1) (w.e.f. 14-11-1994).
(1) The Central Government may, having regard to the number, nature and size of the tyres attached to the wheels of a transport vehicle (other than a motor cab), and its make and model and other relevant considerations, by notification in the Official Gazette, specify, in relation to each make and model of a transport vehicle, the 1[maximum gross vehicle weight] of such vehicle and the maximum safe. axle weight of each axle of such vehicle.
(2) A registering authority, when registering a transport vehicle, other than a motor cab, shall enter in the record of registration and shall also enter in the certificate of registration of the vehicle the following particulars, namely:-
(a) the unladen weight of the vehicle;
(b) the number, nature and size of the tyres attached to each wheel;
(c) the gross vehicle weight of the vehicle and the registered axle weights pertaining to the several axles thereof; and
(d) if the vehicle is used or adapted to be used for the carriage of passengers solely or in addition to goods, the number of passengers for whom accommodation is provided,
and the owner of the vehicle shall have the same particulars exhibited in the prescribed manner on the vehicle.
(3) There shall not be entered in the certificate of registration of any such vehicle any gross vehicle weight or a registered axle weight of any of the axles different from that specified in the notification under sub-section (1) in relation to the make and model of such vehicle and to the number, nature and size of the tyres attached to its wheels:
Provided that where it appears to the Central Government that heavier weights than those specified in the notification under sub-section (1) may be permitted in a particular locality for vehicles of a particular type, the Central Government may, by order in the Official Gazette direct that the provisions of this sub-section shall apply with such modifications as may be specified in the order.
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(5) In order that the gross vehicle weight entered in the certificate of registration of a vehicle may be revised in accordance with the provisions of subsection (3), the registering authority may require the owner of transport vehicle in accordance with such procedure as may be prescribed to produce the certificate of registration within such time as may be specified by the registering authority.
1. Subs. by act 54 of 1994, sec. 18. for “maximum safe laden weight” (w.e.f. 14-11-1994).
2. Sub-section (4) omitted by Act 27 of 2000, sec. 3 (w.e.f. 11-8-2000).
(1) The Central Government may, having regard to the public safety, convenience and objects of this Act, by notification in the Official Gazette, specify the life of a motor vehicle reckoned from the date of its manufacture, after the expiry of which the motor vehicle shall not be deemed to comply with the requirements of this Act and the rules made thereunder:
Provided that the Central Government may specify different ages for different classes or different types of motor vehicles.
(2) Notwithstanding anything contained in sub-section (1), the Central Government may, having regard to the purpose of a motor vehicle, such as, display or use for the purposes of a demonstration in any exhibition, use for the purposes of technical research or taking part in a vintage car rally, by notification in the Official Gazette, exempt, by a general or special order, subject to such conditions as may be specified in such notification, any class or type of motor vehicle from the operation of sub-section (1) for the purpose to be stated in the notification.
(3) Notwithstanding anything contained in section 56, no prescribed authority or authorized testing station shall grant a certificate of fitness to a motor vehicle in contravention of the provisions of any notification issued under sub-section (1).
(1) Such authority as the Central Government may, by notification in the Official Gazette, specify, may register any motor vehicle which is the property or for the time being under the exclusive control of the Central Government and is used for Government purposes relating to the defence of the country and unconnected with any commercial enterprise and any vehicle so registered shall not, so long as it remains the property or under the exclusive control of the Central Government, require to be registered otherwise under this Act.
(2) The authority registering a vehicle under sub-section (1) shall assign a registration mark in accordance with the provisions contained in the rules made in this behalf by the Central Government and shall issue a certificate in respect of that vehicle to the effect that such vehicle complies for the time being with all the requirements of this Act and the rules made thereunder and that the vehicle has been registered under this section.
(3) A vehicle registered under this section shall carry the certificate issued under sub-section (2).
(4) If a vehicle registered under this section ceases to be the property or under the exclusive control of the Central Government, the provisions of sections 39 and 40 shall thereupon apply.
(5) The authority registering a vehicle under sub-section (1) shall furnish to any State Government all such information regarding the general nature, overall dimensions and axle weights of the vehicle as the State Government may at any time require.
(1) The provisions of this Chapter shall apply to the registration of trailers as they apply to the registration of any other motor vehicle.
(2) The registration mark assigned to a trailer shall be displayed in such manner on the side of the drawing vehicle as may be prescribed by the Central Government.
(3) No person shall drive a motor vehicle to which a trailer is or trailers are attached unless the registration mark of the motor vehicle so driven is displayed on the trailer or on the last trailer in the train, as the case may be, in such manner as may be prescribed by the Central Government.
The State Government may, if it thinks necessary or expedient so to do in the public interest, direct the submission by the Inspector General of Police (by whatever designation called) and such other police officers as the State Government may specify in this behalf, of such returns containing the information regarding vehicles which have been stolen and stolen vehicles which have been recovered of which the police are aware, to the State Transport Authority, and may prescribe the form in which and the period within which such returns shall be made.
(1) Each State Government shall maintain in such form as may be prescribed by the Central Government a register to be known as the State Register of Motor Vehicles, in respect of the motor vehicles in that State, containing the following particulars, namely:-
(a) registration numbers;
(b) years of manufacture;
(c) classes and types;
(d) names and addresses of registered owners; and
(e) such other particulars as may be prescribed by the Central Government.
(2) Each State Government shall supply to the Central Government 1[if so desired by it] a printed copy of the State Register of Motor Vehicles and shall also inform the Central Government without delay of all additions to and other amendments in such register made from time to time.
(3) The State Register of Motor Vehicles shall be maintained in such manner as may be prescribed by the State Government.
1. Ins. by Act 54 of 1994, sec. 19 (w.e.f. 14-11-1994).
The Central Government may make rules to provide for all or any of the following matters, namely:-
(a) the period within which and the form in which an application shall be made and the documents, particulars and information it shall accompany under sub-section (1) of section 41;
(b) the form in which the certificate of registration shall be made and the particulars and information it shall contain and the manner in which it shall be issued under sub-section (3) of section 41;
(c) the form and manner in which the particulars of the certificate of registration shall be entered in the records of the registering authority under sub-section (5) of section 41;
(d) the manner in which and the form in which the registration mark, the letters and figures and other particulars referred to in sub-section (6) of section 41 shall be displayed and shown;
(e) the period within which and the form in which the application shall be made and the particulars and information it shall contain under sub-section (8) of section 41;
(f) the form in which the application referred to in sub-section (14) of section 41 shall be made, the particulars and information it shall contain and the fee to be charged;
(g) the form in which and the period within which the application referred to in sub-section (1) of section 47 shall be made and the particulars it shall contain;
(h) the form in which and the manner in which the application for “No Objection Certificate” shall be made under sub-section (1) of section 48 and the form of receipt to be issued under sub-section (2) of section 48;
(i) the matters that are to be complied with by an applicant before no objection certificate may be issued under section 48;
(j) the form in which the intimation of change of address shall be made under sub-section (1) of section 49 and the documents to be submitted along with the application;
(k) the form in which and the manner in which the intimation of transfer of ownership shall be made under sub-section (1) of section 50 or under sub-section (2) of section 50 and the document to be submitted along with the application;
(l) the form in which the application under sub-section (2) or subsection (3) of section 51 shall be made;
(m) the form in which the certificate of fitness shall be issued under subsection (1) of section 56 and the particulars and information it shall contain;
(n) the period for which the certificate of fitness granted or renewed under section 56 shall be effective;
(o) the fees to be charged for the issue or renewal or alteration of certificates of registration, for making an entry regarding transfer of ownership on a certificate of registration, for making or cancelling an endorsement in respect of agreement of hire-purchase or lease or hypothecation on a certificate of registration, for certificates of fitness for registration marks, and for the examination or inspection of motor vehicles, and the refund of such fees,
(p) any other matter which is to be, or may be, prescribed by the Central Government.
(1) A State Government may make rules for the purpose of carrying into effect the provisions of this Chapter other than the matters specified in section 64.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for-
(a) the conduct and hearing of appeals that may be preferred under this Chapter (the fees to be paid in respect of such appeals and the refund of such fees);
(b) the appointment, functions and jurisdiction of registering and other prescribed authorities;
(c) the exemption of road-rollers, graders and other vehicles designed and used solely for the construction, repair and cleaning of roads from all or any of the provisions of this Chapter and the rules made thereunder and the conditions governing such exemption;
(d) the issue or renewal of certificates of registration and fitness and duplicates of such certificates to replace the certificates lost, destroyed or mutilated;
(e) the production of certificates of registration before the registering authority for the revision of entries therein of particulars relating the gross vehicle weight;
(f) the temporary registration of motor vehicles and the issue temporary certificate of registration and marks;
(g) the manner in which the particulars referred to in sub-section (2) section 58 and other prescribed particulars shall be exhibited;
(h) the exemption of prescribed persons or prescribed classes of persons from payment of all or any portion of the fees payable under this Chapter;
(i) the forms, other than those prescribed by the Central Government, to be used for the purpose of this Chapter;
(j) the communication between registering authorities of particulars of certificates of registration and by owners of vehicles registered outside the State of particulars of such vehicles and of their registration;
(k) the amount or amounts under sub-section (13) of section 41 or sub-section (7) of section 47 or sub-section (4) of section 49 or sub-section (5) of section 50;
(l) the extension of the validity of certificates of fitness pending consideration of applications for their renewal;
(m) the exemption from the provisions of this Chapter and the conditions and fees for exemption, of motor vehicles in the possession of dealers;
(n) the form in which and the period within which the return under section 62 shall be sent;
(o) the manner in which the State Register of Motor Vehicles shall be maintained under section 63;
(p) any other matter which is to be or may be prescribed.
(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used:
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contact carriage:
Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not:
Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.
(2) The holder of a goods carriage permit may use the vehicle, for the drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed:
1[Provided that the holder of a permit of any articulated vehicle may use the prime-mover of that articulated vehicle for any other semi-trailor.]
(3) The provisions of sub-section (1) shall not apply-
(a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise;
(b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleaning, road watering or conservancy purposes;
(c) to any transport vehicle used solely for police, fire brigade or ambulance purposes;
(d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses;
(e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety;
(f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf;
(g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf;
2[***]
(i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms;
(j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods;
(k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle;
3[***]
(m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances, is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination;
(n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify;
(o) to any transport vehicle which is subject to a hire-purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or
(p) to any transport vehicle while proceeding empty to any place for purpose of repair.
(4) Subject to the provisions of sub-section (3), sub-section (1) shall, if the State Government by rule made under section 96 so prescribes, apply to any motor vehicle adapted to carry more than nine persons excluding the driver.
1. Added by Act 54 of 1994, sec. 20 (w.e.f. 14-11-1994).
2. Clause (h) omitted by Act 27 of 2000, sec. 4 (w.e.f. 11-8-2000).
3. Clause (l) subs, by Act 54 of 1994, sec. 20 (w.e.f. 14-11-1994) and omitted by Act 39 of 2001, sec. 2 (w.e.f. 27-9-2001).
Comment / Related Citation:
Motor Vehicles Act, 1988, Section 66(3) – MACT – Compensation – Owner-cum-driver remained ex parte – Once it was established that the vehicle was comprehensively insured with the insurer to cover the passenger risk, the burden to prove that it was not liable in spite of such a policy, shifted to the insurer – The claimants are neither expected to prove that the vehicle had a valid permit, nor prove that the owner of the vehicle did not commit breach of any of the terms of the policy – It was for the insurer who denies its liability under the policy, to establish that in spite of the comprehensive insurance policy issued by it, it is not liable on account of the requirement of the policy not being fulfilled – The High Court committed an error in expecting the claimants to prove that the vehicle possessed a valid permit – There was no justification for the High Court to interfere with the judgment and awards of the Tribunal in the absence of relevant evidence – Impugned order of the High Court set aside and judgment and awards of the Tribunal restored.
KAMALA MANGALAL VAYANI & ORS. v/s M/S UNITED INDIA INSURANCE CO. LTD. & ORS. [2010(3) SCALE 99 = 2010 AIR(SCW) 6604 = (2010) 12 SCC 488]
(1) A State Government, having regard to-
(a) the advantages offered to the public, trade and industry by the development of motor transport,
(b) the desirability of co-ordinating road and rail transport,
(c) the desirability of preventing the deterioration of the road system and
(d) the desirability of preventing uneconomic competition among holders of permits.
may, from time to time, by notification in the Official Gazette, issue directions both to the State Transport Authority and Regional Transport Authority-
(i) regarding the fixing of fares and freights (including the maximum and minimum in respect thereof) for stage carriages, contract carriages and goods carriages:
1[***]
(ii) regarding the prohibition or restriction, subject to such conditions as may be specified in the directions, of the conveying of long distance goods traffic generally, or of specified classes of goods by goods carriages;
(iii) regarding any other matter which may appear to the State Government necessary or expedient for giving effect to any agreement entered into with the Central Government or any other State Government or the Government of any other country relating to the regulation of motor transport generally, and in particular to its coordination with other means of transport and the conveying of long distance goods traffic:
Provided that no such notification in respect of the matter: referred to in clause (ii) or clause (iii) shall be issued unless a draft of the proposed directions is published in the Official Gazette specifying therein a date being not less than one month after such publication, on or after which the draft will be taken into consideration and any objection or suggestion which may be received has, in consultation with the State Transport Authority, been considered after giving the representatives of the interests affected an opportunity of being heard.
(2) Any direction under sub-section (1) regarding the fixing of fares and freights for stage carriages, contract carriages and goods carriages may provide that such fares or freights shall be inclusive of the tax payable by the passengers or the consignors of the goods, as the case may be, to the operators of the stage carriages, contract carriages or goods carriages under any law for the time being in force relating to tax on passengers and goods.
1. Proviso ins. by Act 54 of 1994, sec. 21 (w.e.f. 14-11-1994) and omitted by Act 39 of 2001 sec. 3 (w.e.f. 27-9-2001).
Comment / Related Citation:
Motor Vehicles Act, 1988 – Section. 67(1) & (2) – Circular issued under Section. 67(1) besides fixing rates of fares of stage carriages and contract carriages, prohibiting recovery of tax from passengers – Validity – Held, valid by virtue of S. 67(2) – Non-mention of S. 67(2) in the circular, held, inconsequential – Statute Law – Statutory Power – Exercise of, without reference to the correct source thereof – Validity – Administrative Law – Ultra vires – Defences to the plea of ultra vires -
JAI PRAKASH AND OTHERS v/s STATE OF U.P. AND OTHERS [(2004) 13 SCC 390]
(1) The State Government shall by notification in the Official Gazette, constitute for the State a State Transport Authority to exercise and discharge the powers and functions specified in sub-section (3), and shall in like manner constitute Regional Transport Authorities to exercise and discharge throughout such areas (in this Chapter referred to as regions) as may be specified in the notification in respect of each Regional Transport Authority; the powers and functions conferred by or under this Chapter on such Authorities:
Provided that in the Union Territories, the Administrator may abstain from constituting any Regional Transport Authority.
(2) A State Transport Authority or a Regional Transport Authority shall consist of a Chairman who has had judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law and in the case of a State Transport Authority, such other persons (whether officials or not), not being more than four and, in the case of a Regional Transport Authority, such other persons (whether officials or not), not being more than two, as the State Government may think fit to appoint; but no person who has any financial interest whether as proprietor, employee or otherwise in any transport undertaking shall be appointed, or continue to be, a member of a State or Regional Transport Authority, and, if any person being a member of a any such Authority acquires a financial interest in any transport undertaking, he shall within four weeks of so doing, give notice in writing to the State Government of the acquisition of such interest and shall vacate office:
Provided that nothing in this sub-section shall prevent any of the members of the State Transport Authority or a Regional Transport Authority, as the case may be, to preside over a meeting of such Authority during the absence of the Chairman, notwithstanding that such member does not possess judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law:
Provided further that the State Government may,-
(i) where it considers necessary or expedient so to do, constitute the State Transport Authority or a Regional Transport Authority for any region so as to consist of only one member who shall be an official with judicial experience or experience as an appellate or a revisional authority or as an adjudicating authority competent to pass any order or take any decision under any law;
(ii) by rules made in this behalf, provide for the transaction of business of such authorities in the absence of the Chairman of any other member and specify the circumstances under which, and the manner in which, such business could be so transacted:
Provided also that nothing in this sub-section shall be construed as debarring an official (other than an official connected directly with the management or operation of a transport undertaking) from being appointed or continuing as a member of any such authority merely by reason of the fact that the Government employing the official has, or acquires, any financial interest in a transport undertaking.
(3) The State Transport Authority and every Regional Transport Authority shall give effect to any directions issued under section 67 and the State Transport Authority shall, subject to such directions and save as otherwise provided by or under this Act, exercise and discharge throughout the State the following power and functions, namely:-
(a) to coordinate and regulate the activities and policies of the Regional Transport Authorities, if any, of the State;
(b) to perform the duties of a Regional Transport Authority where there is no such Authority and, if it thinks fit or if so required by a Regional Transport Authority, to perform those duties in respect of any route common to two or more regions;
(c) to settle all disputes and decide all matters on which differences of
opinion arise between Regional Transport Authorities; and
1[(ca) Government to formulate routes for plying stage carriages; and]
(d) to discharge such other functions as may be prescribed.
(4) For the purpose of exercising and discharging the powers and functions specified in sub-section (3), a State Transport Authority may, subject to such conditions as may be prescribed, issue directions to any Regional Transport Authority, and the Regional Transport Authority shall, in the discharge of its functions under this Act, give effect to and be guided by such directions.
(5) The State Transport Authority and any Regional Transport Authority, if authorised in this behalf by rules made under section 96, may delegate such of its powers and functions to such authority or person subject to such restrictions, limitations and conditions as may be prescribed by the said rules.
1. Ins. by Act 54 of 1994, sec. 22 (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988, Section 68C – Motor Vehicles Act, 1988, Sections 100(3),(4), 103(2) and 105 – Motor Vehicles – Scheme of nationalization of routes with exclusive right of operation to the appellate corporation totally excluding all private operators from the said route proposed under Section 68C of 1939 Act – Objections preferred by the private operators against the said proposal when Act 1988 repealing 1939 Act came into force – Issue settled by the Apex Court that Scheme had not lapsed and the same was required to be finalized – Route permits renewed during the pendency of disposal of objections of the private operator subject to decision of writ petition filed by appellant in the High Court – The writ petition of the appellant allowed by the High Court and and it was held that private operator entitled to compensation in terms of the provisions of the 1988 Act – Notification by State Government on 23.8.2008 allowing private operators to operate on the notified routes challenged by the U.P. Roadways Karamchari Union in which authorities restrained from issuing permits to private operators – Writ petition filed by the private operators seeking direction to the Authority to allow them route permit allowed by the High Court – Directions by the High Court liable to be set aside – This will not prevent the said respondents from claiming compensation u/s 105 of the 1988 Act.
U.P. STATE ROAD TRANSPORT CORP. v/s MOHD. GHILMAN SHARIF & OTHERS [(2009) 10 SCR 1149 = 2009(9) SCALE 685 = JT 2009 (9) SC 665 = (2009) 16 SCC 86]
&
Motor Vehicles Act, 1988, Sections 166, 68 – Negligence – Contributory negligence – Definition of negligence – In common parlance `negligence’ is categorised as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances.”
MUNICIPAL CORPORATION OF GREATER BOMBAY v/s LAXMAN IYER AND ANOTHER [AIR 2003 SC 4182 = (2003) 8 SCC 731 = (2003) 9 Scale 2 = 2003 (Supp4) SCR 984 = JT 2003 (8) SC 108]
(1) Every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles:
Provided that if it is proposed to use the vehicle or vehicles in two or more regions lying within the same State, the application shall be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles:
Provided further that if it is proposed to use the vehicle or vehicles in two or more regions lying in different States, the application shall be made to the Regional Transport Authority of the region in which the applicant resides or ha his principal place of business.
(2) Notwithstanding anything contained in sub-section (1), the Stat Government may, by notification in the Official Gazette, direct that in the case c any vehicle or vehicles proposed to be used in two or more regions lying in different States, the application under that sub-section shall be made to the Stat Transport Authority of the region in which the applicant resides or has hi principal place of business.
(1) An application for a permit in respect of a stage carriage (in this Chapter referred to as a stage carriage permit) or as a reserve stage carriage shall, as far as may be, contain the following particulars, namely:-
(a) the route or routes or the area or areas to which the application relates;
(b) the type and seating capacity of each such vehicle;
(c) the minimum and maximum number of daily trips proposed to bi provided and the time-table of the normal trips.
Explanation.-For the purposes of this section, section 72, section 80 and section 102, “trip” means a single journey from one point to another, and every return journey shall be deemed to be a separate trip;
(d) the number of vehicles intended to be kept in reserve to maintain the service and to provide for special occasions;
(e) the arrangements intended to be made for the housing, maintenance and repair of the vehicles, for the comfort and convenience of passengers and for the storage and safe custody of luggage;
(f) such other matters as may be prescribed.
(2) An application referred to in sub-section (1) shall be accompanied by such documents as may be prescribed.
(1) A Regional Transport Authority shall, while considering an application for a stage carriage permit, have regard to the objects of this Act.
1[***]
(2) A Regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time-table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened:
Provided that before such refusal an opportunity shall be given to the applicant to amend the time-table so as to conform to the said provisions.
(3)(a) The State Government shall, if so directed by the Central Government having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of stage carriage; generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less that five lakhs.
(b) Where the number of stage carriages are fixed under clause (a), the Government of the State shall reserve in the State certain percentage of stage carriage permits for the scheduled castes and the scheduled tribes in the same ratio as in the case of appointments made by direct recruitment to public services in the State.
(c) Where the number of stage carriages are fixed under clause (a), the Regional Transport Authority shall reserve such number of permits for the scheduled castes and the scheduled tribes as may be fixed by the State Government under sub-clause (b).
(d) After reserving such number of permits as is referred to in clause (c), the Regional Transport Authority shall in considering an application have regard tc the following matters, namely:-
(i) financial stability of the applicant;
(ii) satisfactory performance as a stage carriage operator including payment of tax if the applicant is or has been an operator of stage carriage service; and
(iii) such other matters as may be prescribed by the State Government:
Provided that, other conditions being equal, preference shall be given to applications for permits from-
(i) State transport undertakings;
(ii) co-operative societies registered or deemed to have been registered under any enactment for the time being in force; 2[***]
(iii) ex-servicemen; 3[or]
3[(iv) any other class or category of persons, as the State Government may, for reasons to be recorded in writing, consider necessary.]
4[***]
Explanation.-For the purposes of this section “company” means any body corporate, and includes a firm or other association of individuals; and “director”, in relation to a firm, means a partner in the firm.
1. Proviso omitted by Act 54 of 1994, sec. 23 (w.e.f. 14-11-1994).
2. Word “or” omitted by Act 54 of 1994, sec. 23 (w.e.f. 14-11-1994).
3. Ins. by Act 54 of 1994, sec. 23 (w.e.f. 14-11-1994).
4. Sub-sections (4) and (5) omitted by Act 54 of 1994, sec. 23 (w.e.f. 14-11-1994).
(1) Subject to the provisions of section 71, a Regional Transport Authority may, on an application made to it under section 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:
Provided that no such permit shall be granted in respect of any route or area not specified in the application.
(2) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rule that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-
(i) that the vehicles shall be used only in a specified area, or on a specified route or routes;
(ii) that the operation of the stage carriage shall be commenced with effect from a specified date;
(iii) the minimum and maximum number of daily trips to be provided in relation to any route or area generally or on specified days and occasions;
(iv) that copies of the time-table of the stage carriage approved by the Regional Transport Authority shall be exhibited on the vehicles and at specified stands and halts on the route or within the area;
(v) that the stage carriage shall be operated within such margins of deviation from the approved time-table as the Regional Transport Authority may from time to time specify;
(vi) that within municipal limits and such other areas and places as may be prescribed, passengers or goods shall not be taken up or set down except at specified points;
(vii) the maximum number of passengers and the maximum weight of luggage that may be carried on the stage carriage, either generally or on specified occasions or at specified times and seasons;
(viii) the weight and nature of passengers’ luggage that shall be carried free of charge, the total weight of luggage that may be carried in relation to each passenger, and the arrangements that shall be made for the carriage of luggage without causing inconvenience to passengers;
(ix) the rate of charge that may be levied for passengers’ luggage in excess of the free allowance;
(x) that vehicles of a specified type fitted with body conforming to approved specifications shall be used:
Provided that the attachment of this condition to a permit shall not prevent the continued use, for a period of two years from the date of publication of the approved specifications, of any vehicle operating on that date;
(xi) that specified standards of comfort and cleanliness shall be maintained in the vehicles;
(xii) the conditions subject to which goods may be carried in the stage carriage in addition to or to the exclusion of passengers;
(xiii) that fares shall be charged is accordance with the approved fare table;
(xiv) that a copy of or extract from the fare table approved by the Regional Transport Authority and particulars of any special fares or rates of fares so approved for particular occasions shall be exhibited on the stage carriage and at specified stands and halts;
(xv) that tickets bearing specified particulars shall be issued to passengers and shall show the fares actually charged and that records of tickets issued shall be kept in a specified manner;
(xvi) that mails shall be carried on the vehicle subject to such conditions (including conditions as to the time in which mails are to be carried and the charges which may be levied) as may be specified;
(xvii) the vehicles to be kept as reserve by the holder of the permit to maintain the operation and to provide for special occasions;
(xviii) the conditions subject to which vehicle may be used as a contract carriage;
(xix) that specified arrangements shall be made for the housing, maintenance and repair of vehicle;
(xx) that any specified bus station or shelter maintained by Government or a local authority shall be used and that any specified rent or fee shall be paid for such use;
(xxi) that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority;
(xxii) that the Regional Transport Authority may, after giving notice of not less than one month,-
(a) vary the conditions of the permit;
(b) attach to the permit further conditions:
Provided that the conditions specified in pursuance of clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof;
(xxiii) that the holder of a permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may from time to time prescribe;
(xxiv) any other conditions which may be prescribed.
(1) Subject to the provisions of section 71, a Regional Transport Authority may, on an application made to it under section 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:
Provided that no such permit shall be granted in respect of any route or area not specified in the application.
(2) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for a stage carriage of a specified description and may, subject to any rule that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-
(i) that the vehicles shall be used only in a specified area, or on a specified route or routes;
(ii) that the operation of the stage carriage shall be commenced with effect from a specified date;
(iii) the minimum and maximum number of daily trips to be provided in relation to any route or area generally or on specified days and occasions;
(iv) that copies of the time-table of the stage carriage approved by the Regional Transport Authority shall be exhibited on the vehicles and at specified stands and halts on the route or within the area;
(v) that the stage carriage shall be operated within such margins of deviation from the approved time-table as the Regional Transport Authority may from time to time specify;
(vi) that within municipal limits and such other areas and places as may be prescribed, passengers or goods shall not be taken up or set down except at specified points;
(vii) the maximum number of passengers and the maximum weight of luggage that may be carried on the stage carriage, either generally or on specified occasions or at specified times and seasons;
(viii) the weight and nature of passengers’ luggage that shall be carried free of charge, the total weight of luggage that may be carried in relation to each passenger, and the arrangements that shall be made for the carriage of luggage without causing inconvenience to passengers;
(ix) the rate of charge that may be levied for passengers’ luggage in excess of the free allowance;
(x) that vehicles of a specified type fitted with body conforming to approved specifications shall be used:
Provided that the attachment of this condition to a permit shall not prevent the continued use, for a period of two years from the date of publication of the approved specifications, of any vehicle operating on that date;
(xi) that specified standards of comfort and cleanliness shall be maintained in the vehicles;
(xii) the conditions subject to which goods may be carried in the stage carriage in addition to or to the exclusion of passengers;
(xiii) that fares shall be charged is accordance with the approved fare table;
(xiv) that a copy of or extract from the fare table approved by the Regional Transport Authority and particulars of any special fares or rates of fares so approved for particular occasions shall be exhibited on the stage carriage and at specified stands and halts;
(xv) that tickets bearing specified particulars shall be issued to passengers and shall show the fares actually charged and that records of tickets issued shall be kept in a specified manner;
(xvi) that mails shall be carried on the vehicle subject to such conditions (including conditions as to the time in which mails are to be carried and the charges which may be levied) as may be specified;
(xvii) the vehicles to be kept as reserve by the holder of the permit to maintain the operation and to provide for special occasions;
(xviii) the conditions subject to which vehicle may be used as a contract carriage;
(xix) that specified arrangements shall be made for the housing, maintenance and repair of vehicle;
(xx) that any specified bus station or shelter maintained by Government or a local authority shall be used and that any specified rent or fee shall be paid for such use;
(xxi) that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority;
(xxii) that the Regional Transport Authority may, after giving notice of not less than one month,-
(a) vary the conditions of the permit;
(b) attach to the permit further conditions:
Provided that the conditions specified in pursuance of clause (i) shall not be varied so as to alter the distance covered by the original route by more than 24 kilometres, and any variation within such limits shall be made only after the Regional Transport Authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or any part thereof;
(xxiii) that the holder of a permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may from time to time prescribe;
(xxiv) any other conditions which may be prescribed.
Comment / Related Citation:
Motor Vehicles Act, 1988, Section 72 – Stage carriage permit – Grant of – Curtailment of route – Held that what is prohibited by the proviso to sub-section (1) of Section 72 is granting of a permit in respect of any route or area not specified in the application – The said proviso does not prohibit curtailment in regard to portion of the route applied for, for any reason – In fact sub-section (1) specifically authorizes the Authority to grant stage carriage permit with such modifications as it deems fit – Reason for the modification found not arbitrary or unreasonable – The question of directing the Authority to consider the application of the respondent afresh does not arise – Impugned order passed by the High Court liable to be set aside and the orders of the Authority restored and curtailment of routes upheld.
STATE OF WEST BENGAL & ORS. v/s S. K. NURUL AMIN [(2010) 11 SCC 182 = 2010 AIR(SCW) 4075 = JT 2010 (6) SC 418 = 2010(6) SCALE 190 = AIR 2010 SC 2271 = (2010) 7 SCR 496]
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Motor Vehicles Act, 1988, Sections 67, 70 and 72 – Motor Vehicle – Stage carriage permit – Grant of – Power of chief minister – State has no say – Chief Minister or any authority, other than the statutory authority could not entertain an application of grant of permit nor could issue any order thereupon – Even any authority under the Act, including the appellate authority cannot issue any direction, except when the matter comes up before it under the statute – All government orders must comply with requirements of a statute as also the constitutional provision.
PANCHAM CHAND AND OTHERS v/s STATE OF HIMACHAL PRADESH AND OTHERS [AIR 2008 SC 1888 = (2008) 7 SCC 117 = JT 2008 (3) SC 498 = 2008 AIR(SCW) 2111 = 2008 (3) SCR 888 = (2008) 3 Scale 378]
An application for a permit in respect of a contract carriage (in this Chapter referred to as a contract carriage permit) shall contain the following particulars, namely:-
(a) the type and seating capacity of the vehicle;
(b) the area for which the permit is required;
(c) any other particulars which may be prescribed.
An application for a permit in respect of a contract carriage (in this Chapter referred to as a contract carriage permit) shall contain the following particulars, namely:-
(a) the type and seating capacity of the vehicle;
(b) the area for which the permit is required;
(c) any other particulars which may be prescribed.
(1) Subject to the provisions of subsection (3), a Regional Transport Authority may, on an application made to it under section 73, grant a contract carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:
Provided that no such permit shall be granted in respect of any area not specified in the application.
(2) The Regional Transport Authority, if it decides to grant a contract carriage permit, may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-
(i) that the vehicles shall be used only in a specified area or on a specified route or routes;
(ii) that except in accordance with specified conditions, no contract of hiring, other than an extension or modification of a subsisting contract, may be entered into outside the specified area;
(iii) the maximum number of passengers and the maximum weight of luggage that may be carried on the vehicles, either generally or on specified occasions or at specified times and seasons;
(iv) the conditions subject to which goods may be carried in any contract carriage in addition to, or to the exclusion of, passengers;
(v) that, in the case of motorcabs, specified fares or rates of fares shall be charged and a copy of the fare table shall be exhibited on the vehicle;
(vi) that, in the case of vehicles other than motorcabs, specified rates of hiring not exceeding specified maximum shall be charged;
(vii) that in the case of motorcabs, a specified weight of passengers’ luggage shall be carried free of charge, and that the charge, if any, for any luggage in excess thereof shall be at a specified rate;
(viii) that, in the case of motorcabs, a taximeter shall be fitted and maintained in proper working order, if prescribed;
(ix) that the Regional Transport Authority may, after giving notice of not less than one month,-
(a) vary the conditions of the permit;
(b) attach to the permit further conditions;
(x) that the conditions of permit shall not be departed from save with the approval of the Regional Transport Authority;
(xi) that specified standards of comfort and cleanliness shall be maintained in the vehicles;
(xii) that, except in the circumstances of exceptional nature, the plying of the vehicle or carrying of the passengers shall not be refused;
(xiii) any other conditions which may be prescribed.
(3)(a) The State Government shall, if so directed by the Central Government, having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of contract carriages generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than five lakhs.
(b) Where the number of contract carriages are fixed under clause (a), the Regional Transport Authority shall, in considering an application for the grant of permit in respect of any such contract carriage, have regard to the following matters, namely:-
(i) financial stability of the applicant;
(ii) satisfactory performance as a contract carriage operator including payment of tax if the applicant is or has been an operator of contract carriages; and
(iii) such other matters as may be prescribed by the State Government:
Provided that, other conditions being equal, preference shall be given to applications for permits from-
(i) the India Tourism Development Corporation;
(ii) State Tourism Development Corporations;
(iii) State Tourism Departments;
(iv) State Transport Undertakings;
(v) co-operative societies registered or deemed to have been registered under any enactment for the time being in force;
(vi) ex-servicemen.
(1) The Central Government may, by notification in the Official Gazette, make a scheme for the purpose of regulating the business of renting of 1[motor cabs or motor cycles to persons desiring to drive either by themselves or through drivers, motor cabs or motor cycles] for their own use and for matters connected therewith.
2) A scheme made under sub-section (1) may provide for all or any of the following matters, namely:-
(a) licensing of operators under the scheme including grant, renewal and revocation of such licences;
(b) form of application and form of licences and the particulars to be contained therein;
(c) fee to be paid with the application for such licences;
(d) the authorities to which the application shall be made;
(e) condition subject to which such licences may be granted, renewed or revoked;
(f) appeals against orders of refusal to grant or renew such licences and appeals against orders revoking such licences;
(g) conditions subject to which motor cabs may be rented;
(h) maintenance of records and inspection of such records;
(i) such other matters as may be necessary to carry out the purposes of this section.
1. Subs, by Act 54 of 1994, sec. 24, for “motor cabs to persons desiring to drive the cabs” (w.e.f. 14-11-1994).
(1) A regional Transport Authority may, on an application made to it, grant a private service vehicle permit in accordance with the application or with such modification as it deems fit or refuse to grant such permit:
Provided that no such permit shall be granted in respect of any area or route not specified in the application.
(2) An application for a permit to use a motor vehicle as a private service vehicle shall contain the following particulars, namely:-
(a) type and seating capacity of the vehicle;
(b) the area or the route or routes to which the application relates;
(c) the manner in which it is claimed that the purpose of carrying persons otherwise than for hire or reward or in connection with the trade or business carried on by the applicant will be served by vehicle; and
(d) any other particulars which may be prescribed.
(3) The Regional Transport Authority if it decides to grant the permit may subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-
(i) that the vehicle be used only in a specified area or on a specified route or routes;
(ii) the maximum number of persons and the maximum weight of luggage that may be carried;
(iii) that the Regional Transport Authority may, after giving notice of not less than one month-
(a) vary the conditions of the permit;
(b) attach to the permit further conditions;
(iv) that the conditions of permit shall not be departed from, save with the approval of the Regional Transport Authority;
(v) that specified standards of comforts and cleanliness shall be maintained in the vehicle;
(vi) that the holder of the permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may, from time to time, specify; and
(vii) such other conditions as may be prescribed.
An application for a permit to use a motor vehicle for the carriage of goods for hire or reward or for the carriage of goods for or in connection with a trade or business carried on by the applicant (in this Chapter referred to as a goods carriage permit) shall, as far as may be contain the following particulars, namely:-
(a) the area or the route or routes to which the application relates;
(b) the type and capacity of the vehicle;
(c) the nature of the goods it is proposed to carry;
(d) the arrangements intended to be made for the housing, maintenance and repair of the vehicle and for the storage and safe custody of the goods;
(e) such particulars as the Regional Transport Authority may require with respect to any business as a carrier of goods for hire or reward carried on by the applicant at any time before the making of the application, and of the rates charged by the applicant;
(f) particulars of any agreement, or arrangement, affecting in any material respect the provision within the region of the Regional Transport Authority of facilities for the transport of goods for hire or reward, entered into by the applicant with any other person by whom such facilities are provided, whether within or without the region;
(g) any other particulars which may be prescribed.
A Regional Transport Authority shall, in considering an application for a goods carriage permit, have regard to the following matters, namely:-
(a) the nature of the goods to be carried with special reference to their dangerous or hazardous nature to human life;
(b) the nature of the chemicals or explosives to be carried with special reference to the safety to human life.
(1) A Regional Transport Authority may, on an application made to it under section 77, grant a goods carriage permit to be valid throughout the State or in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit:
Provided that no such permit shall be granted in respect of any area or route not specified in the application.
(2) The Regional Transport Authority, if it decides to grant a goods carriage permit, may grant the permit and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-
(i) that the vehicle shall be used only in a specified area, or on a specified route or routes;
(ii) that the gross vehicle weight of any vehicle used shall not exceed a specified maximum;
(iii) that goods of a specified nature shall not be carried;
(iv) that goods shall be carried at specified rates;
(v) that specified arrangement shall be made for the housing, maintenance and repair of the vehicle and the storage and safe custody of the goods carried;
(vi) that the holder of the permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may, from time to time, prescribe;
(vii) that the Regional Transport Authority may, after giving notice of not less than one month,-
(a) vary the conditions of the permit;
(b) attach to the permit further conditions;
(viii) that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority;
(ix) any other conditions which may be prescribed.
(3) The conditions referred to in sub-section (2) may include conditions relating to the packaging and carriage of goods of dangerous or hazardous nature to human life.
(1) An application for a permit of any kind may be made at any time.
(2) A 1[Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66] shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act:
Provided that the 1[Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66] may summarily refuse the application if the grant of any permit in accordance with the application would have the effect of increasing the number of stage carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub-section (3) of section 71 or of contract carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub-section (3) of section 74:
Provided further that where a 1[Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66] refuses an application for the grant of a permit of any kind under this Act, it shall give to the applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter.
(3) An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or by altering the route or routes or area covered by it, or in the case of a stage carriage permit by increasing the number of trips above the specified maximum or by the variation, extension or curtailment of the route or routes or the area specified in the permit shall be treated as an application for the grant of a new permit:
Provided that it shall not be necessary so to treat an application made by the holder of stage carriage permit who provides the only service on any route to increase the frequency of the service so provided without any increase in the number of vehicles:
Provided further that,-
(i) in the case of variation, the termini shall not be altered and the distance covered by the variation shall not exceed twenty-four kilometres;
(ii) in the case of extension, the distance covered by extension shall not exceed twenty-four kilometres from the termini,
and any such variation or extension within such limits shall be made only after the transport authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or extended or any part thereof.
(4) A 1[Regional Transport Authority, State Transport Authority or any prescribed authority referred to in sub-section (1) of section 66] may, before such date as may be specified by it in this behalf, replace any permit granted by it before the said date by a fresh permit conforming to the provisions of section 72 or section 74 or section 76 or section 79, as the case may be, and the fresh permit shall be valid for the same route or routes or the same area for which the replaced permit
Provided that no condition other than a condition which was already attached to the replaced permit or which could have been attached thereto under the law in force when that permit was granted shall be attached to the fresh permit except with the consent in writing of the holder of the permit.
(5) Notwithstanding anything contained in section 81, a permit issued under the provisions of sub-section (4) shall be effective without renewal for the remainder of the period during which the replaced permit would have been so effective.
1. Subs. by Act 54 of 1994, sec. 25, for “Regional Transport Authority” (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988 – Sections 88(1), (2), (5), (6) & (4) Proviso and 80 – Inter-State route permit – Conditions precedent for issuance of – In absence of any such agreement as contemplated under S. 88(5) between the two States, – Interpretation of Statutes – Purposive construction applied – Words and phrases – “Except as may be otherwise prescribed” – Connotation of – The expression used in sub-section (1) of Section 88 of the Act “except as may be otherwise prescribed”, indicates that where an application for grant of inter-State route is to be applied, there must be a reciprocal agreement between the two States as contemplated under sub-section (5) of Section 88 of the Act and unless and until there is a reciprocal agreement between the two States within which the proposed inter-State route lies, no permit on inter-State route can be granted.
VENKATAKRISHNAN v/s STATE TRANSPORT AUTHORITY, KERALA [(2004) 11 SCC 207 = (2005) 5 Scale 311]
(1) A permit other than a temporary permit issued under section 87 or a special permit issued under sub-section (8) of section 88 shall be effective 1[from the date of issuance or renewal thereof] for a period of five years:
Provided that where the permit is countersigned under sub-section (1) of section 88, such counter-signature shall remain effective without renewal for such period so as to synchronies with the validity of the primary permit.
(2) A permit may be renewed on an application made not less than fifteen days before the date of its expiry.
(3) Notwithstanding anything contained in sub-section (2), the Regional Transport Authority or the State Transport Authority as the case may be, entertain an application for the renewal of a permit after the last date specified in that sub-section if it is satisfied that the applicant was prevented by good and sufficient cause from making an application within the time specified.
(4) The Regional Transport Authority or the State Transport Authority, as the case may be, may reject an application for the renewal of a permit on one or more of the following grounds, namely:-
(a) the financial condition of the applicant as evidenced by insolvency, or decrees for payment of debts remaining unsatisfied for a period of thirty days, prior to the date of consideration of the application;
(b) the applicant had been punished twice or more for any of the following offences within twelve months reckoned from fifteen days prior to the date of consideration of the application committed as a result of the operation of a stage carriage service by the applicant, namely:-
(i) plying any vehicle-
(1) without payment of tax due on such vehicle;
(2) without payment of tax during the grace period allowed for payment of such tax and then stop the plying of such vehicle;
(3) on any unauthorised route;
(ii) making unauthorised trips:
Provided that in computing the number of punishments for the purpose of clause (b), any punishment stayed by the order of an appellate authority shall not be taken into account:
Provided further that no application under this sub-section shall be rejected unless an opportunity of being heard is given to the applicant.
(5) Where a permit has been renewed under this section after the expiry of the period thereof, such renewal shall have effect from the date of such expiry irrespective of whether or not a temporary permit has been granted under clause (d) of section 87, and where a temporary permit has been granted, the fee paid in respect of such temporary permit shall be refused.
1. Subs, by Act 54 of 1994, sec. 26 for “without renewal” (w.e.f. 14-11-1994).
(1) Save as provided in sub-section (2), a permit shall not be transferable from one person to another except with the permission of the transport authority which granted the permit and shall not, without such permission, operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit.
(2) Where the holder of a permit dies, the person succeeding to the possession of the vehicle covered by the permit may, for a period of three months, use the permit as if it had been granted to himself:
Provided that such person has, within thirty days of the death of the holder, informed the transport authority which granted the permit of the death of the holder and of his own intention to use the permit:
Provided further that no permit shall be so used after the date on which it would have ceased to be effective without renewal in the hands of the deceased holder.
(3) The transport authority may, on application made to it within three months of the death of the holder of a permit, transfer the permit to the person succeeding to the possession of the vehicles covered by the permit:
Provided that the transport authority may entertain an application made after the expiry of the said period of three months if it is satisfied that the applicant was prevented by good and sufficient cause from making an application within the time specified.
The holder of a permit may, with the permission of the authority by which the permit was granted, replace any vehicle covered by the permit by any other vehicle of the same nature.
The following shall be conditions of every permit-
(a) that the vehicle to which the permit relates carries valid certificate of fitness issued under section 56 and is at all times so maintained as to comply with the requirements of this Act and the rules made thereunder;
(b) that the vehicle to which the permit relates is not driven at a speed exceeding the speed permitted under this Act;
(c) that any prohibition or restriction imposed any fares or freight fixed by notification made under section 67 are observed in connection with the vehicle to which the permit relates;
(d) that the vehicle to which the permit relates is not driven in contravention of the provisions of section 5 or section 113;
(e) that the provisions of this Act limiting the hours of work of drivers are observed in connection with any vehicle or vehicles to which the permit relates;
(f) that the provisions of Chapters X, XI, and XII so far as they apply to the holder of the permit are observed; and
(g) that the name and address of the operator shall be painted or otherwise firmly affixed to every vehicle to which the permit relates on the exterior of the body of that vehicle on both sides thereof in a colour or colours vividly contrasting to the colour of the vehicle centred as high as practicable below the window line in bold letters.
Every permit issued under this Act shall be complete in itself and shall contain all the necessary particulars of the permit and the conditions attached thereto.
(1) The transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit-
(a) on the breach of any condition specified in section 84 or of any condition contained in the permit, or
(b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit, or
(c) if the holder of the permit ceases to own the vehicle covered by the permit, or
(d) if the holder of the permit has obtained the permit by fraud or misrepresentation, or
(e) if the holder of the goods carriage permit, fails without reasonable cause, to use the vehicle for the purposes for which the permit was granted, or
(f) if the holder of the permit acquires the citizenship of any foreign country:
Provided that no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation
(2) The transport authority may exercise the powers conferred on it under sub-section (1) in relation to a permit granted by any authority or person to whom power in this behalf has been delegated under sub-section (5) of section 68 as if the said permit was a permit granted by the transport authority.
(3) Where a transport authority cancels or suspends a permit, it shall give to the holder in writing its reasons for the action taken.
(4) The powers exercisable under sub-section (1) (other than the power to cancel a permit) by the transport authority which granted the permit may be exercised by any authority or person to whom such powers have been delegated under sub-section (5) of section 68.
(5) Where a permit is liable to be cancelled or suspended under clause (a) or clause (b) or clause (e) of sub-section (1) and the transport authority is of opinion that having regard to the circumstances of the case, it would not be necessary or expedient so to cancel or suspend the permit if the holder of the permit agrees to pay a certain sum of money, then, notwithstanding anything contained in sub- section (1), the transport authority may, instead of cancelling or suspending the permit, as the case may be, recover from the holder of the permit the sum of money agreed upon.
(6) The powers exercisable by the transport authority under sub-section (5) may, where an appeal has been preferred under section 89, be exercised also by the appellate authority.
(7) In relation to a permit referred to in sub-section (9) of section 88, the powers exercisable under sub-section (1) (other than the power to cancel a permit) by the transport authority which granted the permit, may be exercised by any transport authority and any authority or persons to whom power in this behalf has been delegated under sub-section (5) of section 68, as if the said permit was a permit granted by any such authority or persons.
Comment / Related Citation:
Motor Vehicles Act, 1988, Section 86 – Delhi Motor Vehicles Rules, 1993, Rule 61-A – Motor Vehicle – Suspension of permit – Inter-State permits -Held that countersigning State (NCT Delhi) would not be entitled to suspend or cancel the permit of a vehicle wherefor a stage carriage permit has been granted by State of U.P. – Rule 61A of the Delhi Rules would not apply
U.P. STATE ROAD TRANSPORT CORPORATION v/s ASSISTANT COMNR. OF POLICE (TRAFFIC) DELHI [(2009) 3 SCC 634 = (2009) 2 SCR 234 = JT 2009 (2) SC 553 = 2009 AIR(SCW) 2147 = 2009(2) SCALE 526 = (2009) 2 SCC(Cri) 164]
(1) A Regional Transport Authority and the State Transport Authority may without following the procedure laid down in section 80, grant permits to be effective for a limited period which shall, not in any case exceed four months, to authorise the use of a transport vehicle temporarily-
(a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings, or
(b) for the purposes of a seasonal business, or
(c) to meet a particular temporary need, or
(d) pending decision on an application for the renewal of a permit,
and may attach to any such permit such condition as it may think fit:
Provided that a Regional Transport Authority or, as the case may be, State Transport Authority may, in the case of goods carriages, under the circumstances of an exceptional nature, and for reasons to be recorded in writing, grant a permit for a period exceeding four months, but not exceeding one year.
(2) Notwithstanding anything contained in sub-section (1), a temporary permit may be granted thereunder in respect of any route or area where-
(i) no permit could be issued under section 72 or section 74 or section 76 or section 79 in respect of that route or area by reason of an order of a Court or other competent authority restraining the issue of the same, for a period not exceeding the period for which the issue of the permit has been so restrained;
(ii) as a result of the suspension by a Court or other competent authority of the permit of any vehicle in respect of that route or area, there is no transport vehicle of the same class with a valid permit in respect of that route or area, or there is no adequate number of such vehicles in respect of that route or area, for a period not exceeding the period of such suspension:
Provided that the number of transport vehicles in respect of which temporary permits are so granted shall not exceed the number of vehicles in respect of which the issue of the permits have been restrained or, as the case may be, the permit has been suspended.
(1) Except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned:
Provided that a goods carriage permit, granted by the Regional Transport Authority of any one region, for any area in any other region or regions within the same State shall be valid in that area without the counter-signature of the Regional Transport Authority of the other region or of each of the other regions concerned:
Provided further that where both the starting point and the terminal point of a route are situate within the same State, but part of such route lies in any other State and the length of such part does not exceed sixteen kilometres, the permit shall be valid in the other State in respect of that part of the route which is in that other State notwithstanding that such permit has not been countersigned by the State Transport authority or the Regional Transport Authority of that other State:
Provided also that-
(a) where a motor vehicle covered by a permit granted in one State is to be used for the purposes of defence in any other State, such vehicle shall display a certificate, in such form, and issued by such Authority, as the Central Government may, by notification in the Official Gazette, specify, to the effect that the vehicle shall be used for the period specified therein exclusively for the purposes of defence; and
(b) any such permit shall be valid in that other State notwithstanding that such permit has not been countersigned by the State Transport Authority or the Regional Transport Authority of that other State.
(2) Notwithstanding anything contained in sub-section (1), a permit granted or countersigned by a State Transport Authority shall be valid in the whole State or in such regions within the State as may be specified in the permit.
(3) A Regional Transport Authority when countersigning the permit may attach to the permit any condition which it might have imposed if it had granted the permit and may likewise vary any condition attached to the permit by the authority by which the permit was granted.
(4) The provisions of this Chapter relating to the grant, revocation and suspension of permits shall apply to the grant, revocation and suspension of countersignatures of permits:
Provided that it shall not be necessary to follow the procedure laid down in section 80 for the grant of countersignatures of permits, where the permits granted in any one State are required to be countersigned by the State Transport Authority or another State or by the Regional Transport Authority concerned as a result of any agreement arrived at between the States after complying with the requirements of sub-section (5).
(5) Every proposal to enter into an agreement between the States to fix the number of permits which is proposed to be granted or countersigned in respect of each route or area, shall be published by each of the State Governments concerned in the Official Gazette and in any one or more of the newspapers in regional language circulating in the area or route proposed to be covered by the agreement together with a notice of the date before which representations in connection therewith may be submitted, and the date not being less than thirty days from the date of publication in the Official Gazette, on which, and the authority by which, and the time and place at which, the proposal and any representation received in connection therewith will be considered.
(6) Every agreement arrived at between the States shall, in so far as it relates to the grant of countersignature of permits, be published by each of the State Governments concerned in the Official Gazette and in any one or more of the newspapers in the regional language circulating in the area or route covered by the agreement and the State Transport Authority of the State and the Regional Transport Authority concerned shall give effect to it.
(7) Notwithstanding anything contained in sub-section (1), a Regional Transport Authority of one region may issue a temporary permit under section 87 to be valid in another region or State with the concurrence, given generally or for the particular occasion, of the Regional Transport Authority of that other region or of the State Transport Authority of that other State, as the case may be.
(8) Notwithstanding anything contained in sub-section (1), but subject to any rules that may be made under this Act by the Central Government, the Regional Transport Authority of any one region or, as the case may be, the State Transport Authority may, for the convenience of the public,1[grant a special permit to any public service vehicle including any vehicle covered] by a permit issued under section 72 (including a reserve stage carriage) or under section 74 or under subsection (9) of this section for carrying a passenger or passengers for hire or reward under a contract, express or implied, for the use of the vehicle as a whole without stopping to pick up or set down along the line of route passengers not included in the contract, and in every case where such special permit is granted, the Regional Transport Authority shall assign to the vehicle, for display thereon, a special distinguishing mark in the form and manner specified by the Central Government and such special permit shall be valid in any other region or State without the countersignature of the Regional Transport Authority of the other region or of the State Transport Authority of the other State, as the case may be.
(9) Notwithstanding anything contained in sub-section (1) but subject to any rules that may be made by the Central Government under sub-section (14), any State Transport Authority may, for the purpose of promoting tourism, grant permits in respect of tourist vehicles valid for the whole of India, or in such contiguous States not being less than three in number including the State in which the permit is issued as may be specified in such permit in accordance with the choice indicated in the application and the provisions of sections 73, 74, 80, 81, 82, 83, 84, 85, 86 2[clause (d) of sub-section (1) of section 87 and section 89] shall, as far as may be, apply in relation to such permits.
3[***]
(11) The following shall be conditions of every permit granted under subsection (9), namely:-
(i) every motor vehicle in respect of which such permit is granted shall conform to such description, requirement regarding the seating capacity, standards of comforts, amenities and other matters, as the Central Government may specify in this behalf;
(ii) every such motor vehicle shall be driven by a person having such qualifications and satisfying such conditions as may be specified by the Central Government; and
(iii) such other conditions as may be prescribed by the Central Government.
(12) Notwithstanding anything contained in sub-section (1), but, subject to the rule that may be made by the Central Government under sub-section (14), the appropriate authority may, for the purpose of encouraging long distance inter-State road transport, grant in a State, national permits in respect of goods carriages and the provisions of sections 69, 77, 79, 80, 81, 82, 83, 84, 85, 86, 4[clause (d) of sub-section (1) of section 87 and section 89] shall, as far as may be, apply to or in relation to the grant of national permits.
5[***]
(14)
(a) The Central Government may make rules for carrying out the provisions of this section.
(b) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(i) the authorisation fee payable of the issue of a permit referred to in sub-sections (9) and (12);
(ii) the fixation of the laden weight of the motor vehicle;
(iii) the distinguishing particulars or marks to be carried or exhibited in or on the motor vehicle;
(iv) the colour or colours in which the motor vehicle is to be painted;
(v) such other matters as the appropriate authority shall consider in granting a national permit.
Explanation.-In this section,-
(a) “appropriate authority”, in relation to a national permit, means the authority which is authorised under this Act to grant a goods carriage permit;
(b) “authorisation fee” means the annual fee, not exceeding one thousand rupees, which may be charged by the appropriate authority of a State to enable a motor vehicle, covered by the permit referred to in sub-sections (9) and (12) to be used in other States subject to the payment of taxes or fees, if any, levied by the States concerned;
(c) “national permit” means a permit granted by the appropriate authority to goods carriages to operate throughout the territory of India or in such contiguous States, not being less than four in number, including the State in which the permit is issued as may be specified in such permit in accordance with the choice indicated in the application.
1. Subs, by Act 54 of 1994, see. 27, for “grant a special permit in relation to a vehicle covered” (w.e.f. 14-11-1994).
2. Subs. by Act 54 of 1994, sec. 27, for “and 89″ (w.e.f. 14-11-1994).
3. Sub-section (10) omitted by Act 54 of 1994, sec. 27 (w.e.f. 14-11-1994).
4. Sub. by Act 54 of 1994, sec. 27, for “and 89″ (w.e.f. 14-11-1994).
5. Sub-section (13) omitted by Act 54 of 1994, sec. 27 (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988, Section 88 – Motor Vehicle – Stage Carriage – Inter-State permits – Grant of – Inter-State permits must be countersigned by the other State.
VISHNU DUTT AND OTHERS v/s STATE OF RAJASTHAN AND OTHERS [(2005) 13 SCC 592 = 2005 (Supp5) SCR 773 = JT 2005 (10) SC 584 = (2005) 10 Scale 222]
(1) Any person-
(a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or
(b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or
(c) aggrieved by the refusal to transfer the permit under section 82, or
(d) aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit, or by any condition attached to such countersignature, or
(e) aggrieved by the refusal of renewal of a permit, or
(f) aggrieved by the refusal to grant permission under section 83, or
(g) aggrieved by any other order which may be prescribed, may, within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted under sub-section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final.
1[(2) The State Government shall constitute such number of Transport Appellate Tribunals as it thinks fit and each such Tribunal shall consist of a judicial officer who is not below the rank of a District Judge or who is qualified to be a Judge of the High Court and it shall exercise jurisdiction within such area as may be notified by that Government.]
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), every appeal pending at the commencement of this Act, shall continue to be proceeded with and disposed of as if this Act had not been passed.
Explanation.-For the removal of doubts, it is hereby declared that when any order is made by the State Transport Authority or the Regional Transport Authority in pursuance of a direction issued by the Inter-State Transport Commission under clause (c) of sub-section (2) of section 63A of the Motor Vehicles Act, 1939 (4 of 1939), as it stood immediately before the commencement of this Act, and any person feels aggrieved by such order on the ground that it is not in consonance with such direction, he may appeal under sub- section (1) to the State Transport Appellate Tribunal against such order but not against the direction so issued.
1. Subs. by Act 54 of 1994, sec. 28, for sub-section (2) (w.e.f. 14-11-1994).
The State Transport Appellate Tribunal may, on an application made to it, call for the record of any case in which an order has been made by a State Transport Authority or Regional Transport Authority against which no appeal lies, and if it appears to the State Transport Appellate Tribunal that the order made by the State Transport Authority or Regional Transport Authority is improper or illegal, the State Transport Appellate Tribunal may pass such order in relation to the case as it deems fit and every such order shall be final:
Provided that the State Transport Appellate Tribunal shall not entertain any application from a person aggrieved by an order of a State Transport Authority or Regional Transport Authority, unless the application is made within thirty days from the date of the order:
Provided further that the State Transport Appellate Tribunal may entertain the application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by good and sufficient cause from making the application in time:
Provided also that the State Transport Appellate Tribunal shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.
1[(1) The hours of work of any person engaged for operating a transport vehicle shall be such as provided in the Motor Transport Workers Act, 1961 (7 of 1961)].
(2) A State Government may, by notification in the Official Gazette, grant such exemptions from the provisions of sub-section (1) as it thinks fit, to meet cases of emergency or of delays by reason of circumstances which could not be foreseen.
(3) A State Government or, if authorised in this behalf by the State Government by rules made under section 96, the State or a Regional Transport Authority may require persons employing any person whose work is subject to any of the provisions of sub-section (1) to fix beforehand the hours of work of such persons so as to conform to those provisions, and may provide for the recording of the hours so fixed.
(4) No person shall work or shall cause or allow any other person to work outside the hours fixed or recorded for the work of such persons under subsection (3).
(5) A State Government may prescribe the circumstances under which and the period during which the driver of a vehicle although not engaged in work is required to remain on or near the vehicle may be deemed to be an interval for rest within the meaning of sub-section (1).
1. Subs. by Act 54 of 1994, sec. 29, for sub-section (1) (w.e.f. 14-11-1994).
Any contract for the conveyance of a passenger in a stage carriage or contract carriage, in respect of which a permit has been issued under this Chapter, shall, so far as it purports to negative or restrict the liability of any person in respect of any claim made against that person in respect of the death of, or bodily injury to, the passenger while being carried in, entering or alighting from the vehicle, or purports to impose any conditions with respect to the enforcement of any such liability, be void.
(1) No person shall engage himself-
(i) as an agent or a canvasser, in the sale of tickets for travel by public service vehicles or in otherwise soliciting customers for such vehicles, or
(ii) as an agent in the business of collecting, forwarding or distributing goods carried by goods carriages,
unless he has obtained a licence from such authority and subject to such conditions as may be prescribed by the State Government.
(2) The conditions referred to in sub-section (1) may include all or any of the following matters, namely:-
(a) the period for which a licence may be granted or renewed;
(b) the fee payable for the issue or renewal of the licence;
(c) the deposit of security-
(i) of a sum not exceeding rupees fifty thousand in the case of an agent in the business of collecting, forwarding or distributing goods carried by goods carriages,
(ii) of a sum not exceeding rupees five thousand in the case of any other agent or canvasser,
and the circumstances under which the security may be forfeited;
(d) the provision by the agent of insurance of goods in transit;
(e) the authority by which and the circumstances under which the licence may be suspended or revoked;
(f) such other conditions as may be prescribed by the State Government.
(3) It shall be a condition of every licence that no agent or canvasser to whom the licence is granted shall advertise in any newspaper, book, list, classified directory or other publication unless there is contained in such advertisement appearing in such newspaper, book, list, classified directory or other publication the licence number, the date of expiry of licence and the particulars of the authority which granted the licence.
No Civil Court shall have jurisdiction to entertain any question relating to the grant of a permit under this Act, and no injunction in respect of any action taken or to be taken by the duly constituted authorities under this Act with regard to the grant of a permit, shall entertained by any Civil Court.
(1) A State Government may make rules to regulate, in respect of stage carriages and contract carriages and the conduct of passengers in : such vehicles.
(2) Without prejudice to the generality of the foregoing provision, such rules may-
(a) authorise the removal from such vehicle of any person contravening the rules by the driver or conductor of the vehicle, or, on the request of the driver or conductor, or any passenger, by any police officer;
(b) require a passenger who is reasonably suspected by the driver or conductor of contravening the rules to give his name and address to a police officer or to the driver or conductor on demand;
(c) require a passenger to declare, if so demanded by the driver or conductor, the journey he intends to take or has taken in the vehicle and to pay the fare for the whole of such journey and to accept any ticket issued therefor;
(d) require, on demand being made for the purpose by the driver or conductor or other person authorised by the owners of the vehicle, production during the journey and surrender at the end of the journey by the holder thereof of any ticket issued to him;
(e) require a passenger, if so requested by the driver or conductor, to leave the vehicle on the completion of the journey the fare for which he has paid;
(f) require the surrender by the holder thereof on the expiry of the period for which it is issued of a ticket issued to him;
(g) require a passenger to abstain from doing anything which is likely to obstruct or interfere with the working of the vehicle or to cause damage to any part of the vehicle or its equipment or to cause injury or discomfort to any other passenger;
(h) require a passenger not to smoke in any vehicle on which a notice prohibiting smoking is exhibited;
(i) require the maintenance of complaint books in stage carriages and prescribe the conditions under which passengers can record any complaints in the same.
Comment / Related Citation:
Motor Vehicles Act, 1939, Section 95(2) – MACT – Liability of insurer – Motor cab – Which was being used for hire or reward and thus covered by Section 95(2)(b)(i) of the Act – Which prescribes a limited liability of Rs. 50000/- Only in respect of persons other than passengers carried for hire or reward – Injured was not passenger – Liability of insurer limited.
JAMESKUTTY JACOB (2) v/s UNITED INDIA INSURANCE CO. AND OTHERS [(2006) 3 SCC 750 = (2006) 2 SCC(Cri) 114]
&
Motor Vehicles Act (59 of 1988), Sections 2(7), 95, 96 – A.P. Motor Vehicles Rules (1989), Rule 297-A(l)(c) – Validity of Rule 297-A(l)(c)-The contract carriages are for those who want to hire the vehicle collectively or individually for a group or a party for their transport to a destination/destinations. The vehicle has to be hired as a whole for the carriage of passengers mentioned in the contract. There has to be only one contract for carrying the passengers mentioned in the contract from one destination to another. An agent or a group of persons/individuals cannot hire a public service vehicle for going from one place to another with passengers having different purposes. If such a construction is put then there would be no distinction between stage carriage or contract carriage permits, If contract carriage permit-holder is permitted to pick up individual or a few of them from the starting point of journey and drop them at the last terminus of the route it would virtually be a Stage Carriage with corridor restriction. Stage carriage is intended to meet the requirements of the general public travelling from one destination to another having different purposes whereas a contract carriage is meant for those who want to hire a public service vehicle as a whole collectively for their transport from one destination to another having the same purpose. High Court was not right In holding that the travelling party as a whole need not have a common purpose for their travel and It was sufficient if they had a common destination. . In Rule 297-A(l)(c) ‘common purpose’ has been defined to mean the intention shared alike by all the persons travelling by the public service vehicles to attend a meeting, gathering or function, social, religious, political and the like, or to go to a pilgrimage or visit to- place of tourist’s interest or both. That it would not include the intention or the act of such persons merely travelling from one common point to another. This Rule framed by the State Government does not run counter to the provisions of S. 2(7) of the Act either in its intent or in its expression. The rule is in consonance with the intent of S. 2(7) of the Act. The same has been framed to fulfill the object with which S. 2(7) has been enacted. Any other interpretation would obliterate the distinction between a stage carriage permit and a contract carriage permit.
STATE OF ANDHRA PRADESH AND OTHERS ETC v/s B. NOORULLA KHAN AND ANOTHER ETC [AIR 2004 SC 2413 = (2004) 6 SCC 194 = (2004) 5 Scale 618 = 2004 AIR(SCW) 2901 = (2004) 5 Supreme 660 = 2004 (Supp2) SCR 432 = JT 2004 (5) SC 195]
(1) A State Government may make rules for the purpose of carrying into effect the provisions of this Chapter.
(2) Without prejudice to the generality of the foregoing power, rules under this section may be made with respect to all or any of the following matters, namely:-
(i) the period of appointment and the terms of appointment of and the conduct of business by Regional and State Transport Authorities and the reports to be furnished by them;
(ii) the conduct of business by any such authority in the absence of any member (including the Chairman) thereof and the nature of business which, the circumstances under which and the manner in which, business could be so conducted;
(iii) The conduct and hearing of appeals that may be preferred under this Chapter, the fees to be paid in respect of such appeals and the refund of such fees;
(iv) the forms to be used for the purposes of this Chapter, including the forms or permits;
(v) the issue of copies of permits in place of permits lost, destroyed or mutilated;
(vi) the documents, plates and marks to be carried by transport vehicles, the manner in which they are to be carried and the languages in which any such documents are to be expressed;
(vii) the fees to be paid in respect of applications for permits, duplicate permits and plates;
(viii) the exemption of prescribed person or prescribed classes of persons from payment of all or any or any portion of the fees payable under this Chapter;
(ix) the custody, production and cancellation on revocation or expiration of permits, and the return of permits which have been cancelled;
(x) the conditions subject to which, and the extent to which, a permit granted in another State shall be valid in the State without countersignature;
(xi) the conditions subject to which, and the extent to which, a permit granted in one region shall be valid in another region within the State without countersignature;
(xii) the conditions to be attached to permits for the purpose of giving effect to any agreement such as is referred to in clause (iii) of subsection (1) of section 67;
(xiii) the authorities to whom, the time within which and the manner in which appeals may be made;
(xiv) the construction and fittings of, and the equipment to be carried by, stage and contract carriages, whether generally or in specified areas;
(xv) the determination of the number of passengers a stage or contract carriage is adapted to carry and the number which may be carried;
(xvi) the conditions subject to which goods may be carried on stage and contract carriages partly or wholly in lieu of passengers;
(xvii) the safe custody and disposal of property left in a stage or contract carriage;
(xviii) regulating the painting or marking of transport vehicles and the display of advertising matter thereon, and in particular prohibiting the painting or marking of transport vehicles in such colour or manner as to induce any person to believe that the vehicle is used for the transport of mails;
(xix) the conveyance in stage or contract carriages of corpses or persons suffering from any infectious or contagious disease or goods likely to cause discomfort or injury to passengers and the inspection and disinfection of such carriages if used for such purposes;
(xx) the provision of taxi meters on motor cabs requiring approval or standard types of taxi meters to be used and examining testing and sealing taxi meters;
(xxi) prohibiting the picking up or setting down of passengers by stage or contract carriages at specified places or in specified areas or at places other than duly notified stands or halting places and requiring the driver of a stage carriage to stop and remain stationary for, a reasonable time when so required by a passenger desiring to board or alight from the vehicle at a notified halting place;
(xxii) the requirements which shall be complied with in the construction or use of any duly notified stand or halting place, including the provision of adequate equipment and facilities for the convenience of all users thereof; the fees, if any, which may be charged for the use of such facilities, the records which shall be maintained at such stands or places, the staff to be employed thereat, and the duties and conduct of such staff, and generally for maintaining such stands and places in a serviceable and clean condition;
(xxiii) the regulation of motor cab ranks;
(xxiv) requiring the owners of transport vehicles to notify any change of address or to report the failure of or damage to any vehicle used for the conveyance of passengers for hire or reward;
(xxv) authorising specified persons to enter at all reasonable times and inspect all premises used by permit holders for the purposes of their business;
(xxvi) requiring the person in charge of a stage carriage to carry any person tendering the legal or customary fare;
(xxvii) the conditions under which and the types of containers or vehicles in which animals or birds may be carried and the seasons during which animals or birds may or may not be carried;
(xxviii) the licensing of and the regulation of the conduct of agents or canvassers who engage in the sale of tickets for travel by public service vehicles or otherwise solicit customers for such vehicles;
(xxix) the licensing of agents engaged in the business of collecting for forwarding and distributing goods carried by goods carriages;
(xxx) the inspection of transport vehicles and their contents and of the permits relating to them;
(xxxi) the carriage of persons other than the driver in goods carriages;
(xxxii) the records to be maintained and the returns to be furnished by the owners of transport vehicles; and
(xxxiii) any other matter which is to be or may be prescribed.
In this Chapter, unless the context otherwise requires, “road transport service” means a service of motor vehicles carrying passengers or goods or both by road for hire or reward.
The provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law
1[(1) Where any State Government is of opinion that for the purpose of providing an efficient, adequate, economical and properly co-ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State Government may formulate a proposal regarding a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and other relevant particulars respecting thereto and shall publish such proposal in the Official Gazette of the State formulating such proposal and in not less than one newspaper in the regional language circulating in the area or route proposed to be covered by such scheme and also in such other manner as the State Government formulating such proposal deem fit.
2[(2) Notwithstanding anything contained in sub-section (1), when a proposal is published under that sub-section, then from the date of publication of such proposal, no permit shall be granted to any person, except a temporary permit during the pendency of the proposal and such temporary permit shall be valid only for a period of one year from the date of its issue or till the date of final publication of the scheme under section 100, whichever is earlier.]
1. Section 99 renumbered as sub-section (1) thereof by Act 54 of 1994, sec. 30 (w.e.f. 14-11-194),
2. Ins. by Act 54 of 1994, sec. 30 (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988, Sections 99 to 104 – Notified routes – Publication of Scheme – Grant of stage carriage permits – Relevant Scheme was introduced under the provisions of Section 99 r/w Section 100 of the Act 1988 and the same was published in the Gazette on 9.9.1990 – The Motor Vehicles Act, 1939 was repealed and the same substituted by MV Act, 1988 that became effective from 1.7.1989 – The provisions of new Act which came into operation would be applicable and govern the cases in respect of the two permits for which appeals were pending before the Appellate Tribunal on the date when the aforesaid new Act came into operation – During the pendency of the aforesaid appeals also the new scheme came into operation the claim of the appellants for grant of two permits which was pending before the Appellate Tribunal was governed in accordance with the provisions of the MV Act, 1988 r/w the scheme which was promulgated and was operative and functioning – As on the date of modification of clause (4) in the year 1997 in the Scheme the appellants had no permits granted in their favour by the RTA and therefore it must be held that the present appellants had no permit in their favour granted by the RTA before coming into force of the Scheme – Consequently, the aforesaid scheme does not give any protection or benefit to the appellants – Appeal liable to be dismissed.
RAJ TRANSPORT CO. PVT. LTD., AMRITSAR v/s STATE TRANSP. APPELLATE TRIBUNAL PB. & ORS. [2010(12) SCALE 241 = (2010) 13 SCC 460]
(1) On the publication of any proposal regarding a scheme in the Official Gazette and in not less than one newspaper in the regional language circulating in the area or route which is to be covered by such proposal any person may, within thirty days from the date of its publication in the Official Gazette, file objections to it before the State Government.
(2) The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State transport undertaking to be heard in the matter, if they so desire, approve or modify such proposal.
(3) The scheme relating to the proposal as approved or modified under subsection (2) shall then be published in the Official Gazette by the State Government making such scheme and in not less than one newspaper in the regional language circulating in the area or route covered by such scheme and the same shall thereupon become final on the date of its publication in the Official Gazette and shall be called the approved scheme and the area or route fo which it relates shall be called the notified area or notified route:
Provided that no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has the previous approval of the Central Government.
(4) Notwithstanding anything contained in this section, where a scheme is not published as an approved scheme under sub-section (3) in the Official Gazette within a period of one year from the date of publication of the proposal regarding the scheme in the Official Gazette under sub-section (1), the proposal shall be deemed to have lapsed.
Explanation.-In computing the period of one year referred to in this sub- section, any period or periods during which the publication of the approved scheme under sub-section (3) was held up on account of any stay or injunction by the order of any Court shall be excluded.
Comment / Related Citation:
Motor Vehicles Act, 1988 – section 99, 100 – state government empowerment under framed scheme for its transport undertakings for specific routes – private legal permit holders thereby disallowed – private operators dissatisfied due to income-loss when intersecting through and via national routes – their validity doubtful to disregard transport routes nationalization-scheme – whereupon A.P. state’s notifications – issuance under the act provisos keeping its own reservation of routes’ right – leading to outright cancellation of issued permits – contesting the legality of authority thereto since no chance of being heard given to them – hence, ultra vires s. 100 of the act – also notification seizing their fundamental right in respect of continuing trade and business secured by the constitution – high court disallowed such contentions, discharging the said writ – held, in wake of statutory provisions, valid permit-holders’ stand of income-loss termed as ‘extraneous and irrelevant factor’ rather unessential and non-relative matter – the formulation of scheme under s. 100 does not tantamount to be illegal nor unrightful – objections filed do not purport to be righteous, but irrelevant and foreign as to the main issue referred – thus, all state permit-holder operators do not possess any right or claim to use or pass through any part or portion of the notified area or route, till the concerned authority itself agrees or allows thereupon by necessary notification – petitioners are allowed to represent to the concerned ministerial authority despite the factual findings and the opportunity provided to them – apex court’s interference unnecessary – appeal disposed of accordingly.
M. MADAN MOHAN RAO AND OTHERS v/s UNION OF INDIA AND OTHERS [AIR 2002 SC 2647 = (2002) 6 SCC 348 = JT 2002 (5) SC 230 = (2002) 5 Scale 225 = 2002 AIR(SCW) 2972 = (2002) 5 Supreme 38]
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Motor Vehicles Act, 1988 – section 68, 100 – appellant is a co-operative society dealing in the business of passenger transport – government constituted regional transport authority consisting of transport commissioner as chairman – appellant challenged the notification as s. 68(2) puts complete bar to the appointment of transport commissioner as chairman being an employee of the state government – having financial interest in the government “undertaking” – held, even applying the dictionary meaning of “undertaking” on entity such as the Haryana roadways must be held to be an “undertaking” – the word “any makes it clear that it may be either private or government or public sector undertaking – the word “any” before financial interest leads to hold that it includes the financial interest which he may even as an employee of the undertaking – the notification relating to appointment of transport commissioner as chairman must be quashed – appeal allowed.
THE MOR MODERN CO-OPERATIVE TRANSPORT SOCIETY LTD. v/s FINANCIAL COMMISSIONER AND SECRETARY TO GOVT., HARYANA AND ANOTHER [AIR 2002 SC 2513 = (2002) 6 SCC 269 = JT 2002 (5) SC 125 = 2002 AIR(SCW) 2826 = (2002) 5 Supreme 55 = 2002 (Supp1) SCR 87 = (2002) 5 Scale 145]
Notwithstanding anything contained in section 87, a State transport undertaking may, in the public interest operate additional services for the conveyance of the passengers on special occasions such as to and from fairs and religious gatherings:
Provided that the State transport undertaking shall inform about the operation of such additional services to the concerned Transport Authority without delay.
(1) The State Government may, at any time, if it considers necessary, in the public interest so to do, modify any approved scheme after giving-
(i) the State transport undertaking; and
(ii) any other person who, in the opinion of the State Government, is likely to be affected by the proposed modification,
and opportunity of being heard in respect of the proposed modification.
(2) The State Government shall publish any modification proposed under sub-section (1) in the Official Gazette and in one of the newspapers in the regional languages circulating in the area in which it is proposed to be covered by such modification, together with the date, not being less than thirty days from such publication in the Official Gazette, and the time and place at which any representation received in this behalf will be heard by the State Government.
Comment / Related Citation:
Motor Vehicles Act, 1988, Section 102 – General Clauses Act, 1897, Section 21 – Rescinding of notification – Modification of scheme – Hearing Authority – Authority delegated to the Hearing Authority limited to hear objections/representation – He is not authorized to approve the proposed modification – It was not open for the Hearing Authority to approve the proposed modification or modify the proposed scheme – Do not find that there was any impediment for the State Government in exercising its power under Section 102 of the 1988 Act read with Section 21 of the General Clauses Act, 1897 to rescind the notification .
RASID JAVED & ORS. ETC.ETC. v/s STATE OF U.P. & ANR. ETC. ETC. [2010 AIR(SCW) 4079 = JT 2010 (7) SC 285 = 2010(6) SCALE 227 = AIR 2010 SC 2275 = (2010) 7 SCC 781 = (2010) 7 SCR 535]
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Motors Vehicles Act, 1988, Section 99,100,102,103,104 – Motor Vehicle – Framing of scheme – Route – Stage carriage permits – Scheme covering mofusil service for total exclusion of private operators including operator on town services – Exception 2 in note appended to the Scheme is that the existing town service operating on the notified rules – Held that under Exception 2 contained in the note appended to the Scheme , permits can be issued only to the existing town services operating on the notified routes – This means that only existing operators on the notified routes are eligible for permits – Fresh applicants or future applicants are totally ineligible for getting permit for town services operating on notified routes.
A.P. STATE ROAD TRANSPORT CORPORATION. v/s REGIONAL TRANSPORT AUTHORITY AND ANOTHER [AIR 2005 SC 2663 = (2005) 4 SCC 391 = JT 2005 (5) SC 50 = 2005 (3) SCR 931 = (2005) 4 Scale 452]
(1) Where, in pursuance of an approved scheme, any State transport undertaking applies in such manner as may be prescribed by the State Government in this behalf for a stage carriage permit or a goods carriage permit or a contract carriage permit in respect of a notified area or notified route, the State Transport Authority in any case where the said area or route lies in more than one region and the Regional Transport Authority in any other case shall issue such permit to the State transport undertaking, notwithstanding anything to the contrary contained in Chapter V.
(2) For the purpose of giving effect to the approved scheme in respect of a notified area or notified route, the State Transport Authority or, as the case may be, the Regional Transport Authority concerned may, by order,-
(a) refuse to entertain any application for the grant or renewal of any other permit or reject any such application as may be pending;
(b) cancel any existing permit;
(c) modify the terms of any existing permit so as to-
(i) render the permit ineffective beyond a specified date;
(ii) reduce the number of vehicles authorised to be used under the permit;
(iii) curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route.
(3) For the removal of doubts, it is hereby declared that no appeal shall lie against any action taken, or order passed, by the State Transport Authority or any Regional Transport Authority under sub-section (1) or sub-section (2).
STATE AMENDMENTS
Karnataka:
In section 103, after sub-section (1), insert the following sub-section, namely:-
“(1A) It shall be lawful for the State Transport Undertaking to operate on any route as stage carriage, under any permit issued therefor to such Undertaking under sub-section (1), any vehicle placed at the disposal and under the control of such Undertaking by the owner of such vehicle under any arrangement entered into between such owner and the Undertaking for the use of the said vehicle by the Undertaking.”
[Karnataka Act 11 of 1996, sec. 2 (w.r.e.f. 8-7-1996)]
Uttar Pradesh:
In section 103, after sub-section (1), the following sub-section shall be inserted, namely:-
“(1A) It shall be lawful for a State transport undertaking to operate on any route as stage carriage, under any permit issued therefor to such undertaking under sub-section (1), any vehicle placed at the disposal and under the control of such undertaking by the owner of such vehicle under any arrangement entered into between such owner and the undertaking for the use of the said vehicle by the undertaking.”
[Uttar Pradesh Act 5 of 1993, sec. 2 (w.r.e.f. 16-1-1993)].
Where a scheme has been published under sub-section (3) of section 100 in respect of any notified area or notified route, the State Transport Authority or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme:
Provided that where no application for a permit has been made by the State Transport Undertaking in respect of any notified area or notified route in pursuance of an approved scheme, the State Transport Authority or the Regional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State transport undertaking in respect of that area or route.
Comment / Related Citation:
Motor Vehicles Act, 1988 – Section 104 proviso – Grant of temporary permits to any person in respect of a notified area or notified route – Hence, resort could not be had to proviso to S. 104 for granting temporary permits – Order of High Court directing the authority concerned that if there was need for the grant of additional permits then the same be issued to the applicants, was not justified – Hence, set aside
U.P. SRTC AND ANOTHER v./s SANJIDA BANO AND OTHERS [(2005) 10 SCC 280]
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Motor Vehicles Act, 1988, Section 100 to 104 – Motor Vehicle – Framing of scheme – Notified routes – Stage carriage permits – Route from ‘B’ to ‘N’ notified way back in 1951, no permit could have been issued in pursuance of the resolution dated 14/15/6/2003 and likewise under notification dated 3.9.1994 when the route from ‘M’ to ‘B’ had been notified no permit could have been granted on the aforesaid route as both schemes are of total exclusion – It is settled principle of law that no private operators could be permitted to operate on a notified route except by modifying scheme and after making provisions for the same – Impugned order of the High Court directing the STA to issue permit to all grantees who have not been issued on the basis of the resolution dated 14/15.6.1993 not sustainable and liable to be set aside.
U.P. STATE ROAD TRANSPORT CORPORATION THROUGH ITS CHAIRMAN. v/s OMADITYA VERMA AND OTHERS [(2005) 4 SCC 424 = 2005 (3) SCR 166 = JT 2005 (4) SC 62 = (2005) 3 Scale 636]
(1) Where, in exercise of the powers conferred by clause (b) or clause (c) of sub-section (2) of section 103, any existing permit is cancelled or the terms thereof are modified, there shall be paid by the State transport undertaking to the holder of the permit, compensation, the amount of which shall be determined in accordance with the provisions of sub-section (4) or sub-section (5), as the case may be.
(2) Notwithstanding anything contained in sub-section (1), no compensation shall be payable on account of the cancellation of any existing, permit or any modification of the terms thereof, when a permit for an alternative route or area in lieu thereof has been offered by the State Transport Authority or the Regional Transport Authority, as the case may be and accepted by the holder of the permit.
(3) For the removal of doubts, it is hereby declared that no compensation shall be payable on account of the refusal to renew a permit under clause (a) of sub-section (2) of section 103.
(4) Where, in exercise of the powers conferred by clause (b) or sub-clause (i) or sub-clause (ii) of clause (c) of sub-section (2) of section 103, any existing permit is cancelled or the terms thereof are modified so as to prevent the holder of the permit from using any vehicle authorised to be used thereunder for the full period from which the permit, would otherwise have been effective, the compensation payable to the holder of the permit for each vehicle affected by such cancellation or modification shall be computed as follows:-
(a) for every complete month or part of a month exceeding fifteen days of the unexpired period of the permit: Two hundred rupees;
(b) for part of a month not exceeding fifteen days of the unexpired period of the permit; One hundred rupees:
Provided that the amount of compensation shall, in no case, be less than four hundred rupees.
(5) Where, in exercise of the powers conferred by sub-clause (iii) of clause (c) of sub-section (2) of section 103, the terms of an existing permit are modified so as to curtail the area or route of any vehicle authorised to be used thereunder, the compensation payable to the holder of the permit on account of such curtailment shall be an amount computed in accordance with the following formula, namely:- Y x A /R
Explanation.-In this formula,-
(i) “Y” means the length or area by which the route or area covered by the permit is curtailed;
(ii) “A” means the amount computed in accordance with sub-section (4);
(iii) “R” means the total length of the route or the total area covered by the permit.
(6) The amount of compensation payable under this section shall be paid by the State transport undertaking to the person or persons entitled thereto within one month from the date on which the cancellation or modification of the permit becomes effective:
Provided that where the State transport undertaking fails to make the payment within the said period of one month, it shall pay interest at the rate of seven per cent, per annum from the date on which it falls due.
Where any article found in any transport vehicle operated by the State transport undertaking is not claimed by its owner within the prescribed period, the State transport undertaking may sell the article in prescribed manner and the sale proceeds thereof, after deducting the costs incidental to sale, shall be paid to the owner on demand.
(1) The State Government may make rules for the purpose of carrying into effect the provisions of this Chapter.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a) the form in which any proposal regarding a scheme may be published under section 99;
(b) the manner in which objections may be filed under sub-section (1) of section 100;
(c) the manner in which objections may be considered and disposed of under sub-section (2) of section 100;
(d) the form in which any approved scheme may be published under sub-section (3) of section 100;
(e) the manner in which application under sub-section (1) of section 103 may be made;
(f) the period within which the owner may claim any article found left in any transport vehicle under section 106 and the manner of sale of such article;
(g) the manner of service of orders under this Chapter;
(h) any other matter which has to be, or may be, prescribed.
The powers conferred on the State Government under this Chapter shall, in relation to a corporation or company owned or controlled by the Central Government or by the Central Government and one or more State Governments, be exercisable only by the Central Government in relation to an inter-State route or area.
(1) Every motor vehicle shall be so constructed and so maintained as In be at all times under the effective control of the person driving the vehicle.
(2) Every motor vehicle shall be so constructed as to have right hand steering control unless it is equipped with a mechanical or electrical signalling device of prescribed nature.
1[(3) If the Central Government is of the opinion that it is necessary or expedient so to do in public interest, it may by order published in the Official Gazette, notify that any article or process used by a manufacturer shall conform In such standard as may be specified in that order.]
1. Ins. by Act 54 of 1994, sec. 31 (w.e.f. 14-11-1994).
(1) The Central Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all or any of the following matters, namely:-
(a) the width, height, length and overhand of vehicles and of the loads carried;
1[(b) the size, nature, maximum retail price and condition of tyres, including embossing thereon of date and year of manufacture, and the maximum load carrying capacity;]
(c) brakes and steering gear;
(d) the use of safety glasses including prohibition of the use of tinted safety glasses;
(e) signalling appliances, lamps and reflectors;
(f) speed governors;
(g) the emission of smoke, visible vapour, sparks, ashes, grit or oil;
(h) the reduction of noise emitted by or caused by vehicles;
(i) the embossment of chassis number and engine number and the date of manufacture;
(j) safety belts, handle bars of motor cycles, auto-dippers and other equipments essential for safety of drivers, passengers and other road-user;
(k) standards of the components used in the vehicle as inbuilt safety devices;
(l) provision for transportation of goods of dangerous or hazardous nature to human life;
(m) standards for emission of air pollutants;
2[(n) installation of catalytic convertors in the class of vehicles to be prescribed;
(o) the placement of audio-visual or radio or tape recorder type of devices
in public vehicles;
(p) warranty after sale of vehicle and norms therefor:]
Provided that any rules relating to the matters dealing with the protection of environment, so far as may be, shall be made after consultation with the Ministry of the Government of India dealing with environment.
(2) Rules may be made under sub-section (1) governing the matters mentioned therein, including the manner of ensuring the compliance with such matters and the maintenance of motor vehicles in respect of such matters, either generally in respect of motor vehicles or trailers or in respect of motor vehicles or trailers of a particular class or in particular circumstances.
(3) Notwithstanding anything contained in this section,-
(a) the Central Government may exempt any class of motor vehicles from the provisions of this Chapter;
(b) a State Government may exempt any motor vehicle or any class or description of motor vehicles from the rules made under sub-section (1) subject to such conditions as may be prescribed by the Central Government.
1. Subs, by Act 54 of 1994, sec. 32, for clause (b) (w.e.f. 14-11-1994).
2. Ins. by Act 54 of 1994, sec. 32 (w.e.f. 14-11-1994).
(1) A State Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all matters other than the matters specified in sub-section (1) of section 110.
(2) Without prejudice to the generality of the foregoing power, rules may be made under this section governing all or any of the following matters either generally in respect of motor vehicles or trailers or in respect of motor vehicles or trailers of a particular class or description or in particular circumstances, namely:-
(a) seating arrangements in public service vehicles and the protection of passengers against the weather;
(b) prohibiting or restricting the use of audible signals at certain times or in certain places;
(c) prohibiting the carrying of appliances likely to cause annoyance or danger;
(d) the periodical testing and inspection of vehicles by prescribed authorities 1[and fees to be charged for such test];
(e) the particulars other than registration marks to be exhibited by vehicles and the manner in which they shall be exhibited;
(f) the use of trailers with motor vehicles; and
2[***]
1. Ins. by Act 54 of 1994 sec. 33 (w.e.f. 14-11-1994).
2. Clause (g) omitted by Act 54 of 1994 sec. 33 (w.e.f. 14-11-1994).
(1) No person shall drive a motor vehicle or cause or allow a motor vehicle to be driven in any public place at a speed exceeding the maximum speed or below the minimum speed fixed for the vehicle under this Act or by or under any other law for the time being in force:
Provided that such maximum speed shall in no case exceed the maximum fixed for any motor vehicle or class or description of motor vehicles by the Central Government by notification in the Official Gazette.
(2) The State Government or any authority authorised in this behalf by the State Government may, if satisfied that it is necessary to restrict the speed of motor vehicles in the interest of public safety or convenience or because of the nature of any road or bridge, by notification in the Official Gazette, and by causing appropriate traffic signs to be placed or erected under section 116 at suitable places, fix such maximum speed limits or minimum speed limits as it thinks fit for motor vehicles or any specified class or description of motor vehicles or for motor vehicles to which a trailer is attached, either generally or in a particular area or on a particular road or roads:
Provided that no such notification is necessary if any restriction under this section is to remain in force for not more than one month.
(3) Nothing in this section shall apply to any vehicle registered under section 60 while it is being used in the execution of military manoeuvres within the area and during the period specified in the notification under sub-section (1) of section 2 of the Manoeuvres, Field Firing and Artillery Practice Act, 1938 (5 of 1938).
(1) The State Government may prescribe the conditions for the issue of permits for 1[transport vehicles] by the State or Regional Transport Authorities and may prohibit or restrict the use of such vehicles in any area or route.
(2) Except as may be otherwise prescribed, no person shall drive or cause or allow to be driven in any public place any motor vehicle which is not fitted with pneumatic tyres.
(3) No person shall drive or cause or allow to be driven in any public place any motor vehicle or trailer-
(a) the unladen weight of which exceeds the unladen weight specified in the certificate of registration of the vehicle, or
(b) the laden weight of which exceeds the gross vehicle weight specified in the certificate of registration.
(4) Where the driver or person in charge of a motor vehicle or trailer driven in contravention of sub-section (2) or clause (a) of sub-section (3) is not the owner, a Court may presume that the offence was committed with the knowledge of or under the orders of the owner of the motor vehicle or trailer.
1. Subs. by Act 54 of 1994, sec. 34, for “heavy goods vehicles or heavy passenger motor vehicles” (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988, Sections 113, 114, 194 and 200 – Motor Vehicles – Compounding of offences – Permissibility of – Notifications issued permits compounding of offence by payments of amounts fixed – If permitted to be continue – It would amount to fresh commission of the offence for which the compounding was done – State Govts. which have not yet withdrawn the notifications directed to do it forthwith.
PARAMJIT BHASIN AND OTHERS v/s UNION OF INDIA AND OTHERS [(2005) 12 SCC 642 = (2006) 1 SCC(Cri) 202]
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Motor Vehicles Act , 1988, Sections 200, 113, 114, 194 – Motor Vehicles Rules, 1989, Rule 95(2) – Motor Vehicle – Driving vehicle exceeding permissible weight – Composition of offences – Notification by State Government permitting carriage of excess weight after compounding – Held that it contravenes the provisions of the Act – Power of compounding vests with the State Government, but the notification issued in that regard cannot authorize continuation of the offence which is permitted to be compounded by payments of the amounts fixed – If permitted to be continued, it would amount to fresh commission of the offence for which the compounding was done – Direction to State Government to withdraw the notification.
PARMAJIT BHASIN & ORS. v/s UNION OF INDIA &ORS. [AIR 2006 SC 440 = JT 2005 (10) SC 238 = (2005) 9 Scale 238 = 2005 (Supp5) SCR 118]
(1) 1[Any officer of the Motor Vehicles Department authorised in this behalf by the State Government shall, if he has reason to believe that a goods vehicle or trailer is being used in contravention of section 113,] require the driver to convey the vehicle to a weighing device, if any, within a distance of ten kilometres from any point on the forward route or within a distance of twenty kilometres from the destination of the vehicle for weighment; and if on such weighment the vehicle is found to contravene in any respect the provisions of section 113 regarding weight, he may, by order in writing, direct the driver to off-load the excess weight at his own risk and not to remove the vehicle or trailer from that place until the laden weight has been reduced or the vehicle or trailer has otherwise been dealt with so that it complies with section 113 and on receipt of such notice, the driver shall comply with such directions.
(2) Where the person authorised under sub-section (1) makes the said order in writing, he shall also endorse the relevant details of the overloading on the goods carriage permit and also intimate the fact of such endorsement to the authority which issued that permit.
1. Subs, by Act 54 of 1994, sec. 35, for certain words (w.e.f. 14-11-1994).
The State Government or any authority authorised in this behalf by the State Government, if satisfied that it is necessary in the interest of public safety or convenience, or because of the nature of any road or bridge, may by notification in the Official Gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicles or of any specified class or description of motor vehicles or the use of trailers either generally in a specified area or on a specified road and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under section 116 at suitable places:
Provided that where any prohibition or/ restriction under this section is to remain in force for not more than one month, notification thereof in the Official Gazette shall not be necessary, but such local publicity as the circumstances may permit, shall be given of such prohibition or restriction.
(1) (a) The State Government or any authority authorised in this behalf by the State Government may cause or permit traffic signs to be placed or erected in any public place for the purpose of bringing to public notice any speed limits fixed under sub-section (2) of section 112 or any prohibitions or restrictions imposed under section 115 or generally for the purpose of regulating motor vehicle traffic.
(b) A State Government or any authority authorised in this behalf by the State Government may, by notification in the Official Gazette or by the erection at suitable places of the appropriate traffic sign referred to in Part A of the Schedule, designate certain roads as main roads for the purposes of the driving regulations made by the Central Government.
(2) Traffic signs placed or erected under sub-section (1) for any purpose for which provision is made in the Schedule shall be of the size, colour and type and shall have the meanings set forth in the Schedule, but the State Government or any authority empowered in this behalf by the State Government may make or authorise the addition to any sign set forth in the said Schedule, of transcriptions of the words, letters or figures thereon in such script as the State Government may think fit provided that the transcriptions shall be of similar size and colour to the words, letters or figures set forth in the Schedule.
(3) Except as provided by sub-section (1), no traffic sign shall, after the commencement of this Act, be placed or erected on or near any road; but all traffic signs placed or erected prior to the commencement of this Act by any competent authority shall for the purpose of this Act by any competent authority shall for the purpose of this Act be deemed to be traffic signs placed or erected under the provisions of sub-section (1).
(4) A State Government may, by notification in the Official Gazette, empower any police officer not below the rank of a Superintendent of Police to remove or cause to be removed any sign or advertisement which is so placed in his opinion as to obscure any traffic sign from view or any sign or advertisement which in his opinion is so similar in appearance to a traffic sign as to be misleading or which in his opinion is likely to distract the attention or concentration of the driver.
(5) No person shall wilfully remove, alter, deface, or in any way tamper with, any traffic signs placed or erected under this section.
(6) If any person accidentally causes such damage to a traffic sign as renders it useless for the purpose for which it is placed or erected under this section, he shall report the circumstances of the occurrence to a police officer or at a police station as soon as possible, and in any case within twenty four hours of the occurrence.
(7) For the purpose of bringing the signs set forth in 1[the First Schedule] in conformity with any International Convention relating to motor traffic to which the Central Government is for the time being a party, the Central Government may, by notification in the Official Gazette, make any addition or alteration to any such sign and on the issue of any such notification, 1[the First Schedule] shall be deemed to be amended accordingly.
1. Subs, by Act 54 of 1994, sec. 36, for “the Schedule” (w.e.f. 14-11-1994).
The State Government or any authority authorised in this behalf by the State Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers.
The Central Government may, by notification in the Official Gazette, make regulations for the driving of motor vehicles.
(1) Every driver of a motor vehicle shall drive the vehicle in conformity with any indication given by mandatory traffic sign and in conformity with the driving regulations made by the Central Government, and shall comply with all directions given to him by any police officer for the time being engaged in the regulation of traffic in any public place.
(2) In this section “mandatory traffic sign” means a traffic sign included in Part A of 1[The First Schedule], or any traffic sign of similar form (that is to say, consisting of or including a circular disc displaying a device, word or figure and having a red ground or border) placed or erected for the purpose of regulating motor vehicle traffic under sub-section (1) of section 116.
1. Subs, by Act 54 of 1994, sec. 36, for “the Schedule” (w.e.f. 14-11-1994).
No person shall drive or cause or allow to be driven in any public place any motor vehicle with a left-hand steering control unless it is equipped with a mechanical or electrical signalling device of a prescribed nature and in working order.
The driver of a motor vehicle shall make such signals and on such occasions as may be prescribed by the Central Government:
Provided that the signal of an intention to turn to the right or left or to stop-
(a) in the case of a motor vehicle with a right-hand steering control, may be given by a mechanical or electrical device of a prescribed nature affixed to the vehicle; and
(b) in the case of a motor vehicle with a left hand steering control, shall be given by a mechanical or electrical device of a prescribed nature affixed to the vehicle:
Provided further that the State Government may, having regard to the width and condition of the roads in any area or route, by notification in the Official Gazette, exempt subject to such conditions as may be specified therein any motor vehicle or class or description of motor vehicles from the operation of this section for the purpose of plying in that area or route.
No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers.
(1) No person driving or in charge of a motor vehicle shall carry any person or permit any person to be carried on the running board or otherwise than within the body of the vehicle.
(2) No person shall travel on the running board or on the top or on the bonnet of a motor vehicle.
No person shall enter or remain in any stage carriage for the purposes of travelling therein unless he has with him a proper pass or ticket:
Provided that where arrangements for the supply of tickets are made in the stage carriage by which a person has to travel, a person may enter such stage carriage but as soon as may be after his entry therein, he shall make the payment of his fare to the conductor or the driver who performs the functions of a conductor and obtain from such conductor or driver, as the case may be, a ticket for his journey.
Explanation.-In this section,-
(a) “pass” means a duty, privilege or courtesy pass entitling the person to whom it is given to travel in a stage carriage gratuitously and includes a pass issued on payment for travel in a stage carriage for the period specified therein;
(b) “ticket” includes a single ticket, a return ticket or a season ticket.
No person driving a motor vehicle shall allow any person to stand or sit or to place anything in such a manner or position as to hamper the driver in his control of the vehicle.
No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver’s seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver.
1[(1) Where any motor vehicle is abandoned or left unattended on a public place for ten hours or more or is parked in a place where parking is legally prohibited, its removal by a towing service or its immobilisation by any means including wheel clamping may be authorised by a police officer in uniform having jurisdiction.]
(2) Where an abandoned, unattended, wrecked, burnt or partially dismantled vehicle is creating a traffic hazard, because of its position in relation to the 2[public place], or its physical appearance is causing the impediment to the traffic, its immediate removal from the 2[public place] by a towing service may be authorised by a police officer having jurisdiction.
(3) Where a vehicle is authorised to be removed under sub-section (1) or subsection (2) by a police officer, the owner of the vehicle shall be responsible for all towing costs, besides any other penalty.
1. Subs. by Act 54 of 1994, sec. 37, for sub-section (1) (w.e.f. 14-11-1994).
2. Subs. by Act 54 of 1994, sec. 37, for “highway” (w.e.f. 14-11-1994).
(1) No driver of a two-wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver’s seat with appropriate safety measures.
(2) In addition to the safety measures mentioned in sub-section (1), the Central Government may, prescribe other safety measures for the drivers of two-wheeled motor cycles and pillion riders thereon.
Every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear 1[protective headgear conforming to the standards of Bureau of Indian Standards]:
Provided that the provisions of this sections shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban:
Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit.
Explanation.-“Protective headgear” means a helmet which,-
(a) by virtue of its shape, material and construction, could reasonably be expected to afford to the person driving or riding on a motor cycle a degree or protection from injury in the event of an accident; and
(b) is securely fastened to the head of the wearer by means of straps or other fastenings provided on the headgear.
1. Subs. by Act 54 of 1994, sec. 38, for certain words (w.e.f. 14-11-1994).
(1) The driver of a motor vehicle in any public place shall, on demand by any police officer in uniform, produce his licence for examination:
Provided that the driver may, if his licence has been submitted to, or has been seized by, any officer or authority under this or any other Act, produce in lieu of the licence a receipt or other acknowledgment issued by such officer or authority in respect thereof and thereafter produce the licence within such period, in such manner as the Central Government may prescribe to the police officer making the demand.
1[(2) The conductor, if any, of a motor vehicle on any public place shall on demand by any officer of the Motor Vehicles Department authorised in this behalf, produce the licence for examination.]
2[(3) The owner of a motor vehicle (other than a vehicle registered under section 60), or in his absence the driver or other person in charge of the vehicle, shall, on demand by a registering authority or any other officer of the Motor Vehicles Department duly authorised in this behalf, produce the certificate of insurance of the vehicle and, where the vehicle is a transport vehicle, also the certificate of fitness referred to in section 56 and the permit; and if any or all of the certificates or the permit are not in his possession, he shall, within fifteen days from the date of demand, submit photo copies of the same, duly attested in person or send the same by registered post to the officer who demanded it.
Explanation.-For the purposes of this sub-section, “certificate” of insurance” means the certificate issued under sub-section (3) of section 147.]
(4) If the licence referred to in sub-section (2) or the certificates or permit referred to in sub-section (3), as the case may be, are not at the time in the possession of the person to whom demand is made, it shall be a sufficient compliance with this section if such person produces the licence or certificates or permit within such period in such manner as the Central Government may prescribe, to the police officer or authority making the demand:
Provided that, except to such extent and with such modifications as may be prescribed, the provisions of this sub-section shall not apply to any person required to produce the certificate of registration or the certificate of fitness of a transport vehicle.
1. Subs. by Act 54 of 1994, sec. 39, for sub-section (2) (w.e.f. 14-11-1994).
2. Subs. by Act 54 of 1994, sec. 39, for sub-section (3) (w.e.f. 14-11-1994).
Every driver of a motor vehicle at the approach of any unguarded railway level crossing shall cause the vehicle to stop and the driver of the vehicle shall cause the conductor or cleaner or attendant or any other person in the vehicle to walk up to the level crossing and ensure that no train or trolley is approaching from either side and then pilot the motor vehicle across such level crossing, and where no conductor or cleaner or attendant or any other person is available in the vehicle, the driver of the vehicle shall get down from the vehicle himself to ensure that no train or trolley is approaching from either side before the railway track is crossed.
(1) The driver of a motor vehicle shall cause the vehicle to stop and remain stationary so long as 1[may for such reasonable time as may be necessary, but not exceeding twenty-four hours],-
2[(a) when required to do so by any police officer not below the rank of a Sub-Inspector in uniform, in the event of the vehicle being involved in the occurrence of an accident to a person, animal or vehicle or of damage to property, or]
(b) when required to do so by any person in charge of an animal if such person apprehends that the animal is, or being alarmed by the vehicle will become, unmanageable,
3[***]
and he shall give his name and address and the name and address of the owner of the vehicle to any person affected by any such accident or damage who demands it provided such person also furnishes his name and address.
(2) The driver of a motor vehicle shall, on demand by a person giving his own name and address and alleging that the driver has committed an offence punishable under section 184 given his name and address to that person.
(3) In this section the expression “animal” means any horse, cattle, elephant, camel, ass, mule, sheep or goat.
1. Subs. by Act 54 of 1994, sec. 40, for “may reasonably be necessary” (w.e.f. 14-11-1994).
2. Subs. by Act 54 of 1994, sec. 40, for clause (a) (w.e.f. 14-11-1994).
3. Clause (c) omitted by Act 54 of 1994, sec. 40 (w.e.f. 14-11-1994).
The owner of a motor vehicle, the driver or conductor of which is accused of any offence under this Act shall, on the demand of any police officer authorised in this behalf by the State Government, give all information regarding the name and address of, and the licence held by, the driver or conductor which is in his possession or could by reasonable diligence be ascertained by him.
When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall-
(a) unless it is not practicable to do so on account of mob fury or any other reason beyond his control, take all reasonable steps to secure medical attention for the injured person, 1[by conveying him to the nearest medical practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on the duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities], unless the injured person or his guardian, in case he is a minor, desires otherwise;
(b) give on demand by a police officer any information required by him, or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention as required under clause (a), at the nearest police station as soon as possible, and in any case within twenty-four hours of the occurrence;
2[(c) give the following information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the accident, namely:-
(i) insurance policy number and period of its validity;
(ii) date, time and place of accident;
(iii) particulars of the persons injured or killed in the accident;
(iv) name of the driver and the particulars of his driving licence.
Explanation.-For the purposes of this section the expression “driver” includes the owner of the vehicle.]
1. Subs, by Act 54 of 1994, sec. 41, of “and, if necessary, convey him to the nearest hospital”
2. Ins. by Act 54 of 1994, sec. 41 (w.e.f. 14-11-1994).
(1) The State Government may, by notification in the Official Gazette, make one or more schemes to provide for-
(a) an in depth study on causes and analysis of motor vehicle accidents;
(b) wayside amenities on highways;
(c) traffic aid posts on highways; and
(d) truck parking complexes along highways.
(2) Every scheme made under this section by any State Government shall be laid, as soon as may be after it is made, before the State Legislature.
When any accident occurs in which a motor vehicle is involved, any person authorised in this behalf by the State Government may, on production if so required of his authority, inspect the vehicle and for that purpose may enter at any reasonable time any premises where the vehicle may be, and may remove the vehicle for examination:
Provided that the place to which the vehicle is so removed shall be intimated to the owner of the vehicle and the vehicle shall be returned 1[after completion of the formalities to the owner, driver or the person in charge of the vehicle within twenty-four hours].
1. Subs. by Act 54 of 1994, sec. 42, for “without unnecessary delay” (w.e.f. 14-11-1994).
The Central Government may make rules to provide for all or any of the following matters, namely:-
(a) the occasions on which signals shall be made by drivers of motor vehicles and such signals under section 121;
(b) the manner in which the licences and certificates may be produced to the police officer under section 130.
(1) The State Government may make rules for the purpose of carrying into effect the provisions of this Chapter other than the matters specified in section 137.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for-
(a) the removal and the safe custody of vehicles including their loads which have broken down or which have been left standing or have been abandoned on road;
(b) the installation and use of weighing devices;
(c) the maintenance and management of wayside amenities complexes;
(d) the exemption from all or any of the provisions of this Chapter of fire brigade vehicles, ambulances and other special classes or descriptions of vehicle, subject to such conditions as may be prescribed;
(e) the maintenance and management of parking places and stands and the fees, if any, which may be charged for their use;
(f) prohibiting the driving downhill of a motor vehicle with the gear disengaged either generally or in a specified place;
(g) prohibiting the taking hold of or mounting of a motor vehicle in motion;
(h) prohibiting the use of foot-paths or pavements by motor vehicles;
(i) generally, the prevention of danger, injury or annoyance to the public or any person, or of danger or injury to property or of obstruction to traffic; and
(j) any other matter which is to be, or may be, prescribed.
Comment / Related Citation:
Motor Vehicles Act, 1988, Section 138 – MACT – Compensation – Enhancement of – Appellant-practicing lawyer – Suffered permanent disability in accident – High court has taken a liberal view in favour of appellant than he deserved and awarded compensation of Rs 3,28,000/- with 12 % interest – Plea that no compensation awarded to engage a driver for car in future – On the date of accident he was riding on a scooter – He had not brought on evidence at that point of time he could afford car – He may have suffered some injuries but the same would not mean that he would not be in a position to rise in his profession only by reason thereof – Due to drastic fall in bank interest rates, rate of interest now granted is 9% and complainant was awarded 12% – No interference.
TEJINDER SINGH GUJRAL v/s INDERJIT SINGH & ANR [(2007) 1 SCC 508 = 2006 (Supp7) SCR 599 = (2006) 10 Scale 448 = (2007) 1 SCC(Cri) 389]
(1) The Central Government may, by notification in the Official Gazette, make rules for all or any of the following purposes, namely:-
(a) the grant and authentication of travelling passes, certificates or authorisations to persons temporarily taking motor vehicles out of India to any place outside India or to persons temporarily proceeding out of India to any place outside India and desiring to drive a motor vehicle during their absence from India;
(b) prescribing the conditions subject to which motor vehicles brought temporarily into India from outside India by persons intending to make a temporary stay in India may be possessed and used in India; and
(c) prescribing the conditions subject to which persons entering India from any place outside India for a temporary stay in India may drive motor vehicles in India.
(2) For the purpose of facilitating and regulating the services of motor vehicles operating between India and any other country under any reciprocal arrangement and carrying passengers or goods or both by road for hire or reward, the Central Government may, by notification in the Official Gazette, make rules with respect to all or any of the following matters, namely:-
(a) the conditions subject to which motor vehicles carrying on such services may be brought into India from outside India and possessed and used in India;
(b) the conditions subject to which motor vehicles may be taken from any place in India to any place outside India;
(c) the conditions subject to which persons employed as drivers and conductors of such motor vehicles may enter or leave India;
(d) the grant and authentication of travelling passes, certificates or authorisations to persons employed as drivers and conductors of such motor vehicles;
(e) the particulars (other than registration marks) to be exhibited by such motor vehicles and the manner in which such particulars are to be exhibited;
(f) the use of trailers with such motor vehicles;
(g) the exemption of such motor vehicles and their drivers and conductors from all or any or the provisions of this Act [other than those referred to in sub-section (4)] of the rules made thereunder;
(h) the identification of the drivers and conductors of such motor vehicles;
(i) the replacement of the travelling passes, certificates or authorisations, permits, licences or any other prescribed documents lost or defaced, on payment of such fee as may be prescribed;
(j) the exemption from the provisions of such laws as relate to customs, police or health with a view to facilitate such road transport services;
(k) any other matter which is to be, or may be, prescribed.
(3) No rule made under this section shall operate to confer on any person any immunity in any State from the payment of any tax levied in that State on motor vehicles or their users.
(4) Nothing in this Act or in any rule made thereunder by a State Government relating to-
(a) the registration and identification of motor vehicles, or
(b) the requirements as to construction, maintenance and equipment of motor vehicles, or
(c) the licensing and the qualifications of drivers and conductors of motor vehicles,
shall apply-
(i) to any motor vehicle to which or to any driver of a motor vehicle to whom any rules made under clause (b) or clause (c) of sub-section (1) or under sub-section (2) apply; or
(ii) to any conductor of a motor vehicle to whom any rules made under sub-section (2) apply.
(1) Where death or permanent disablement of any person has resulted I from an accident arising out of the use of a motor vehicle or motor vehicles, the 1 owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, I jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of 1[fifty thousand rupees] and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of 2[twenty-five thousand rupees].
(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
3[(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force:
Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A.]
1. Subs. by Act 54 of 1994, sec. 43, for “twenty-five thousand rupees” (w.e.f. 14-11-1994).
2. Sub, by Act 54 of 1994 sec. 43, for “twelve thousand rupees” (w.e.f. 14-11-1994).
3. Ins. by Act 54 of 1994, sec. 43 (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988, Section 140 – Interim compensation – No fault compensation – As the expression ‘no fault’ suggests the compensation u/s 140 is regardless of any wrongful act, neglect or default of the person in respect of whose death the claim is made – Order of the Tribunal as affirmed by the High Court directing refund of interim compensation on the ground that deceased alone was responsible for the accident and hence claimant not entitled to any compensation held to be erroneous – The order of the Tribunal insofar as it permits the insurance company to recover the amount of interim compensation along with interest from the claimants/appellants liable to be set aside.
INDRA DEVI & ORS. v/s BAGADA RAM & ANR. [JT 2010 (9) SC 78 = 2010 AIR(SCW) 4924 = 2010(8) SCALE 312 = AIR 2010 SC 2913 = (2010) 10 SCR 347 = (2010) 13 SCC 249]
&
Motor Vehicles Act, 1988, Section 140 – Compensation – No fault liability – Findings by the Tribunal in denying the compensation as provided u/s 140 of the Act by taking view that a claim for compensation under the Section can succeed only in case it is raised at the initial stage or the proceedings and further that the claim must fail if the accident had taken place by using the car without consent or knowledge of the owner held to be erroneous – The Tribunal held to be wrong in denying to the appellant (as well as other 3 claimants) were fully entitled to no fault compensation u/s 140 of the Act – Insurance company directed to pay to the appellant Rs. 25,000/- along with simple interest @6% p.a. from the date of the order of the Tribunal till the date of payment – The other 3 claimants though not before the Court also extended the benefit of the Order.
ESHWARAPPA @ MAHESHWARAPPA AND ANR. v/s C. S. GURUSHANTHAPPA AND ANR. [JT 2010 (8) SC 508 = 2010 AIR(SCW) 4918 = 2010(8) SCALE 263 = (2010) 8 SCC 620 = AIR 2010 SC 2907 = (2010) 10 SCR 362 = (2010) 3 SCC(Cri) 1042]
(1) The right to claim compensation under section 140 in respect of death or permanent disablement of any person shall be in addition to 1[any other right, except the right to claim under the scheme referred to in section 163A (such other right hereafter] in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force].
(2) A claim for compensation under section 140 in respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under section 140 and also in pursuance of any right on (he principle of fault, the claim for compensation under section 140 shall be disposed of as aforesaid in the first place.
(3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first- mentioned compensation and-
(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first mentioned compensation;
(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation.
1. Subs. by Act 54 of 1994, sec. 44, for “any other right (hereafter” (w.e.f. 14-11-1994).
For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of section 140 if such person has suffered by reason of the accident, any injury or injuries involving:-
(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or
(b) destruction or permanent impairing of the powers of any member or joint; or
(c) permanent disfiguration of the head or face.
Comment / Related Citation:
Workmen’s Compensation Act, 1923, Section 4 – Motor Vehicles Act, 1988, Sections 142,143,163 – Workmen Compensation – Compensation – Whether the percentage of loss of earning capacity and the physical disability shall be the same – Held that both the statutes provide for the mode and manner in which the percentage of loss of earning capacity is required to be calculated – They provide that the amount of compensation in cases of this nature would be directly relatable to the percentage of physical disability suffered by the injured vis-a-vis the injuries specified in the First Schedule of the Act, 1923 – As to what would be relevant is to find out the nature of injuries as to whether the same falls within the purview of Part I of Part II thereof.
ORIENTAL INSURANCE CO. LTD. v/s MOHD. NASIR & ANR. [(2009) 6 SCC 280 = 2009 AIR(SCW) 3717 = 2009(8) SCALE 161 = JT 2009 (8) SC 26 = (2009) 8 SCR 829 = (2009) 2 SCC(Cri) 987]
The provisions of this Chapter shall also apply in relation to any claim for compensation in respect of death or permanent disablement of any person under the Workmen’s Compensation Act, 1923 resulting from an accident of the nature referred to in sub-section (1) of section 140 and for this purpose, the said provisions shall, with necessary modifications, be deemed to form part of that Act.
The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of this Act or of any other law for the time being in force.
In this Chapter,-
(a) “authorised insurer” means an insurer for the time being carrying on general insurance business in India under the General Insurance Business (Nationalisation) Act, 1972, and any Government insurance fund authorised to do general insurance business under that Act;
(b) “certificate of insurance” means a certificate issued by an authorised insurer in pursuance of sub-section (3) of section 147 and includes a cover note complying with such requirements as may be prescribed, and where more than one certificate has been issued in connection with a policy, or where a copy of a certificate has been issued, all those certificates or that copy, as the case may be;
(c) “liability”, wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under section 140;
(d) “policy of insurance” includes “certificate of insurance”;
(e) “property” includes goods carried in the motor vehicle, roads, bridges, culverts, causeways, trees, posts and mile-stones;
(f) “reciprocating country” means any such country as may on the basis of reciprocity be notified by the Central Government in the Official Gazette to be a reciprocating country for the purposes of this Chapter;
(g) “third party” includes the Government.
(1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter:
1[Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991).]
Explanation.-A person driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by this sub-section, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force.
(2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise.
(3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any vehicle owned by any of the following authorities, namely:-
(a) the Central Government or a State Government, if the vehicle is used for Government purposes connected with any commercial enterprise;
(b) any local authority;
(c) any State transport undertaking:
Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability arising out of the use of any vehicle of that authority which that authority or any person in its employment may incur to third parties.
Explanation.-For the purposes of this sub-section, “appropriate Government” means the Central Government or a State Government, as the case may be, and-
(i) in relation to any corporation or company owned by the Central Government or any State Government, means the Central Government or that State Government;
(ii) in relation to any corporation or company owned by the Central Government and one or more State Governments, means the Central Government;
(iii) in relation to any other State transport undertaking or any local authority, means that Government which has control over that undertaking or authority.
1. Ins. by Act 54 of 1994, sec. 45 (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988, Sections 158(6),146,165,166(4),168,169 – Central Motor Vehicles Rules, 1989, Rule 150,158(6) – MACT – Compensation – Problems being faced by claimants in getting compensation enumerated – Directions issued to the Police Authorities to implement Section 158(6) and 196 of the MV Act – Directions also given to the Claims Tribunal to comply with provision of Section 166(4) of the Act – Suggestions also given to the Insurance Companies and Legislative/ executive intervention also sought – Central Government also asked to consider rationalization of Second Schedule to the MV Act.
JAI PRAKASH v/s NATIONAL INSURANCE COMPANY LIMITED AND OTHERS [(2010) 2 SCC 607 = (2010) 2 SCC(Cri) 1075]
&
Motor Vehicles Act, 1988 Sections 165, 146, 196-Consumer Protection Act, 1986 Section 196-Compensation – Car purchased on hire-purchase basis – Two cheques given to bank for insurance policy – Policy not renewed – Fatal accident – Claim filed before appropriate Tribunal – Compensation also claimed before Consumer Forum – Liability of insurer. Held that bank can not be held responsible, to pay damages for not obtaining insurance. Claim of damages rejected.
PRADEEP KUMAR JAIN v/s CITIBANK AND ANOTHER [AIR 1999 SC 3119 = (1999) 6 SCC 361 = JT 1999 (5) SC 639 = (1999) 4 Scale 662 = 1999 AIR(SCW) 3067 = (1999) 7 Supreme 210 = (1999) 1 SCC(Cri) 1124]
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) is issued by a person who is an authorised insurer; or
(b) insurer the person or classes of persons specified in the policy to the extent specified in sub-section (2)-
(i) against any liability which may be incurred by him in respect of the death of or bodily 1[injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation.-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead of injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:-
(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.
(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.
1. Subs. by Act 54 of 1994, sec. 46, for “injury to any person” (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988, Sections 147 and 149 – MACT – Liability of insurance company – Papers directed to be placed before the Chief Justice of India for constituting larger Bench to decided the following questions:
NATIONAL INSURANCE CO.LTD. v/s PARVATHNENI & ANR. [(2009) 8 SCC 785 = JT 2009 (12) SC 275 = 2009(12) SCALE 82 = (2009) 3 SCC(Cri) 943]
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Workmen’s Compensation Act, 1923, Section 4 – Motor Vehicles Act, 1988, Section 147 – Compensation – Insurers liability – Workmen engaged in unloading from the tractor to an underground storage bin – While cleaning the storage bin they fell into grocery pit and died due to asphyxia – The use of the vehicle was not even claimed as being a ground on which liability is said to be fastened on the Insurance Company – View taken by the High Court that insurance company not liable held to be justified and correct and not interference called for.
MAMTAJ BI BAPUSAB NADAF & ORS. v/s UNITED INDIA INSURANCE CO. & ORS. [2010 AIR(SCW) 5872 = 2010(9) SCALE 590 = (2010) 10 SCC 536 = (2010) 10 SCR 996]
Where, in pursuance of an arrangement between India and any reciprocating country, the motor vehicle registered in the reciprocating country operates on any route or within any area common to the two countries and there is in force in relation to the use of the vehicle in the reciprocating country, a policy of insurance complying with the requirements of the law of insurance in force in that country, then, notwithstanding anything contained in section 147 but subject to any rules which may be made under section 164, such policy of insurance shall be effective throughout the route or area in respect of which, the arrangement has been made, as if the policy of insurance had complied with the requirements of this Chapter.
(1) If, after a certificate of insurance has been issued under sub-section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy) 1[for under the provisions of section 163A] is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular.
(3) Where any such judgment as is referred to in sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall he liable to the person entitled to the benefit of the decree in the manner and to be the extent specified in sub-section (1), as if the judgment were given by a Court Bin India:
Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled Hinder the corresponding law of the reciprocating country, to be made a party to he proceedings and to defend the action on grounds similar to those specified in Hub-section (2).
(4) Where a certificate of insurance has been issued under sub-section (3) of section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in clause (b) of sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under clause (b) of sub-section (1) of section 147, be of no effect:
Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this subsection shall be recoverable by the insurer from that person.
(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.
(6) In this section the expression “material fact” and “material particular” means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will take the risk and, if so, at what premium and on what conditions, and the expression “liability covered by the terms of the policy” means a liability which is covered by the policy or which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy.
(7) No insurer to whom the notice referred to in sub-section (2) or sub-section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub-section (1) or in such judgment as is referred to in sub-section (3) otherwise than in the manner provided for in sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.
Explanation.-For the purposes of this section, “Claims Tribunal” means a Claims Tribunal constituted under section 165 and “award” means an award made by that Tribunal under section 168.
1. Ins. by Act 54 of 1994, sec. 47 (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988, Sections 149(1), 166 – Compensation – Insurers liability – Insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver whereas there were 15 passengers in the vehicle and most of them died and few received injuries – The liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle – Such excess number of persons would have to be treated as third parties, but since premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned -The Appellant Insurance Company shall deposit with the Tribunal the total amount of the amount awarded in favour of the awardees and the same is to be utilized to satisfy the claims of those claimants not covered by the Insurance Policy along with the persons so covered – The Insurance Company will be entitled to recover the amount paid by it, in excess of it liability from the owner of the vehicle, by putting the decree in execution – The total amount of the six awardees which are the highest shall be construed as the liability of the Insurance Company
UNITED INDIA INSURANCE CO. LTD. v/s K.M. POONAM & ORS. [2011(2) SCALE 568 = JT 2011 (3) SC 149]
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Motor Vehicles Act, 1988, Section 149 and 166 – Motor Vehicle accident – Compensation – Liability of Insurer – Since the cheque for the premium amount was received by the company at 4.00 p.m. on May 7, 1998, the insurance must deemed to have commenced from that time and four hours late when the vehicle met with the accident, the owner must be deemed to be covered by the insurance policy despite mentioning in the cover note that insurance would commence from May 8, 1998.
ORIENTAL INSURANCE CO. LTD. v/s DHARAM CHAND & ORS. [2010(8) SCALE 501 = JT 2010 (9) SC 251]
Section 150. Rights of third parties against insurers on insolvency of the insured.
(1) Where under any contract of insurance effected in accordance with the provisions of this Chapter, a person is insured against liabilities which he may incur to third parties, then-
(a) in the event of the person becoming insolvent or making a composition or arrangement with his creditors, or
(b) where the insured person is a company, in the event of a winding- up order being made or a resolution for a voluntary winding-up being passed with respect to the company or of a receiver or manager of the company’s business or undertaking being duly appointed, or of possession being taken by or on behalf of the holders of any debentures secured by a floating charge of any property comprised in or subject to the charge,
if, either before or after that event, any such liability is incurred by the insured person, his rights against the insurer under the contract in respect of the liability shall, notwithstanding anything to the contrary in any provision of law, be transferred to and vest in the third party to whom the liability was so incurred.
(2) Where an order for the administration of the estate of a deceased debtor is made according to the law of insolvency, then, if any debt provable in insolvency is owing by the deceased in respect of a liability to a third party against which he was insured under a contract of insurance in accordance with the provisions of this Chapter, the deceased debtor’s rights against the insurer in respect of that liability shall, notwithstanding anything to the contrary in any provision of law, be transferred to and vest in the person to whom the debt is owing.
(3) Any condition in a policy issued for the purposes of this Chapter purporting either directly or indirectly to avoid the policy or to alter the rights of the parties thereunder upon the happening to the insured person of any of the events specified in clause (a) or clause (b) of sub-section (1) or upon the making of an order for the administration of the estate of a deceased debtor according to the law of insolvency shall be of no effect.
(4) Upon a transfer under sub-section (1) or sub-section (2), the insurer shall be under the same liability to the third party as he would have been to the insured person, but-
(a) if the liability of the insurer to the insured person exceeds the liability of the insured person to the third party, nothing in this Chapter shall affect the rights of the insured person against the insurer in respect of the excess, and
(b) if the liability of the insurer to the insured person is less than the liability of the insured person to the third party, nothing in this Chapter shall affect the rights of the third party against the insured person in respect of the balance.
No person against whom a claim is made in respect of any liability referred to in clause (b) of section 147 shall on demand by or on behalf of the person making the claim refuse to state whether or not he was insured in respect of that liability by any policy issued under the provisions of this Chapter, or would have been so insured if the insurer had not avoided or cancelled the policy, nor shall he refuse, if he was or would have been so insured, to give such particulars with respect to that policy as were specified in the certificate of insurance issued in respect thereof.
(2) In the event of any person becoming insolvent or making a composition or arrangement with his creditors or in the event of an order being made for the administration of the estate of deceased person according to the law of insolvency, or in the event of a winding up order being made or a resolution for a voluntary winding-up being passed with respect to any company or of a receiver or manager of the company’s business or undertaking being duly appointed or of possession being taken by or on behalf of the holders of any debentures secured by a floating charge on any property comprised in or subject to the charge, it shall be the duty of the insolvent debtor, personal representative of the deceased debtor or company, as the case may be, or the official assignee or receiver in insolvency, trustee, liquidator, receiver or manager, or person in possession of the property to give at the request of any person claiming that the insolvent debtor, deceased debtor or company is under such liability to him as is covered by the provisions of this Chapter, such information as may reasonably be required by him for the purpose of ascertaining whether any rights have been transferred to and vested in him by section 150, and for the purpose of enforcing such rights, if any; and any such contract of insurance as purports whether directly or indirectly to avoid the contract or to alter the rights of the parties thereunder upon the giving of such information in the events aforesaid, or otherwise to prohibit or prevent the giving thereof in the said events, shall be of no effect.
(3) If, from the information given to any person in pursuance of sub-section (2) or otherwise, he has reasonable ground for supporting that there have or may have been transferred to him under this Chapter rights against any particular insurer, that insurer shall be subject to the same duty as is imposed by the said sub-section on the persons therein mentioned.
(4) The duty to give the information imposed by this section shall include a duty to allow all contracts of insurance, receipts for premiums, and other relevant documents in the possession or power of the person on whom the duty is so imposed to be inspected and copies thereof to be taken.
(1) No settlement made by an insurer in respect of any claim which might be made by a third party in respect of any liability of the nature referred to in clause (b) of sub-section (1) of section 147 shall be valid unless such third party is a party to the settlement.
(2) Where a person who is insured under a policy issued for the purposes of (his Chapter has become insolvent, or where, if such insured person is a company, a winding- up order has been made or a resolution for a voluntary winding-up has been passed with respect to the company, no agreement made between the insurer and the insured person after the liability has been incurred to a third party and after the commencement of the insolvency or winding-up, as the case may be, nor any waiver, assignment or other disposition made by or payment made to the insured person after the commencement aforesaid shall be effective to defeat the rights transferred to the third party under this Chapter, but those rights shall be the same as if no such agreement, waiver, assignment or disposition or payment has been made.
(1) For the purposes of sections 150, 151 and 152 a reference to “liabilities to third parties” in relation to a person insured under any policy of insurance shall not include a reference to any liability of that person in the capacity of insurer under some other policy of insurance.
(2) The provisions of sections 150, 151, and 152 shall not apply where a company is wound-up voluntarily merely for the purposes of reconstruction or of an amalgamation with another company.
Where a certificate of insurance has been issued to the person by whom a policy has been effected, the happening in relation to any person insured by the policy of any such event as is mentioned in sub-section (1) or sub-section (2) of section 150 shall, notwithstanding anything contained in this Chapter, not affect any liability of that person of the nature referred to in clause (b) of sub-section (1) of section 147; but nothing in this section shall affect any rights against the insurer conferred under the provisions of sections 150, 151 and 152 on the person to whom the liability was incurred.
Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 (39 of 1925), the death of a person in whose favour a certificate of insurance had been issued, if it occurs I after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer.
When an insurer has issued a certificate of insurance in respect of a contract of insurance between the insurer and the insured person, then-
(a) if and so long as the policy described in the certificate has not been issued by the insurer to the insured, the insurer shall, as between himself and any other person except the insured, be deemed to have issued to the insured person a policy of insurance conforming in all respects with the description and particulars stated in such certificate; and
(b) if the insurer has issued to the insured the policy described in the certificate, but the actual terms of the policy are less favourable to persons claiming under or by virtue of the policy against the insurer either directly or through the insured than the particulars of the policy as stated in the certificate, the policy shall, as between the insurer and any other person except the insured, be deemed to be in terms conforming in all respects with the particulars stated in the said certificate.
(1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer.
1[Explanation.-For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance.]
(2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance.
1. Ins. by Act 54 of 1994, sec. 48 (w.e.f. 14-11-1994).
(1) Any person driving a motor vehicle in any public place shall, on being so required by a police officer in uniform authorised in this behalf by the State Government, produce-
(a) the certificate of insurance;
(b) the certificate of registration;
(c) the driving licence; and
(d) in the case of a transport vehicle, also the certificate of fitness referred to in section 56 and the permit, relating to the use of the vehicle.
(2) If, where owing to the presence of a motor vehicle in a public place an accident occurs involving death or bodily injury to another person, the driver of the vehicle does not at the time produce the certificates, driving licence and permit referred to in sub-section (1) to a police officer, he shall produce the said certificates, licence and permit at the police station at which he makes the report required by section 134.
(3) No person shall be liable to conviction under sub-section (1) or subsection (2) by reason only of the failure to produce the certificate of insurance if, within seven days from the date on which its production was required under sub-section (1), or as the case may be, from the date of occurrence of the accident, he produces the certificate at such police station as may have been specified by him to the police officer who required its production or, as the case may be, to the police officer at the site of the accident or to the officer-in-charge of the police station at which he reported the accident:
Provided that except to such extent and with such modifications as may be prescribed, the provisions of this sub-section shall not apply to the driver of a transport vehicle.
(4) The owner of a motor vehicle shall give such information as he may be required by or on behalf of a police officer empowered in this behalf by the State Government to give for the purpose of determining whether the vehicle was or was not being driven in contravention of section 146 and on any occasion when the driver was required under this section to produce his certificate of insurance.
(5) In this section, the expression “produce his certificate of insurance” means produce for examination the relevant certificate of insurance or such other evidence as may be prescribed that the vehicle was not being driven in contravention of section 146.
1[(6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer.]
1. Subs, by Act 54 of 1994, sec. 49, for sub-section (6) (w.e.f. 14-11-1994).
Comment / Related Citation:
Criminal Procedure Code, 1973, Sections 451,457 -Motor Vehicles Act, 1988, Section 158(6) – Central Motor Vehicles Rules, 1989, Section 159 – Motor Vehicles – Seized vehicles involved in commission of various offence – National waste while in custody of Police – Contention that earlier direction issued by the Apex Court in Suderbhai Ambalal Desai case are not complied with by the prosecuting agency – Considering the mandate of Section 451 read with Section 457 Cr.P.C. further direction with regard to seized vehicle given.
GENERAL INSURANCE COUNCIL & ORS. v/s STATE OF ANDHRA PRADESH & ORS. [2010 AIR(SCW) 2967 = 2010(4) SCALE 141 = (2010) 6 SCC 768 = (2010) 5 SCR 97 = 2010 CRI. L. J. 2883 = (2010) 3 SCC(Cri) 226]
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Motor Vehicle Act, 1988, Section 158(6) – Central Motor Vehicles Rules, 1989, Rule 159 – Section 158(6) – MACT – Statutory obligation on the concerned police officers to forward Claims Tribunal having jurisdiction about the death or bodily injury to any persons so recorded in police station – Sending copy thereof to the concerned insurer and the owner of the offending vehicle – Provision mandatory – Direction to all State Government and Union Territories to instruct all concerned police officers to comply with the requirement of section 158(6) of the Act.
GENERAL INSURANCE COUNCIL & ORS v/s STATE OF ANDHRA PRADESH & ORS [AIR 2007 SC 2696 = 2007 AIR(SCW) 4873 = (2007) 12 SCC 354 = 2007 (8) SCR 192 = (2007) 9 Scale 165 = (2008) 1 SCC(Cri) 384]
A State Government may make rules requiring the owner of any motor vehicle when applying whether by payment of a tax or otherwise for authority to use the vehicle in a public place to produce such evidence as may be prescribed by those rules to the effect that either-
(a) on the date when the authority to use the vehicle comes into operation there will be in force the necessary policy of insurance in relation to the use of the vehicle by the applicant or by other persons on his order or with his permission, or
(b) the vehicle is a vehicle to which section 146 does not apply.
A registering authority or the officer-in-charge of a police station shall, if so required by a person who alleges that he is entitled to claim compensation in respect of an accident arising out of the use of a motor vehicle, or if so required by an insurer against whom a claim has been made in respect of any motor vehicle, furnish to that person or to that insurer, as the case may be, on payment of the prescribed fee any information at the disposal of the said authority or the said police officer relating to the identification marks and other particulars of the vehicle and the name and address of the person who was using the vehicle at the time of the accident or was injured by it and the property, if any, damaged in such form and within such time as the Central Government may prescribe.
(1) For the purposes of this section, section 162 and section 163-
(a) “grievous hurt” shall have the same meaning as in the Indian Penal Code, 1860 (45 of 1860);
(b) “hit and run motor accident” means an accident arising out of the use of a motor vehicle or motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the purpose;
(c) “scheme” means the scheme framed under section 163.
(2) Notwithstanding anything contained in the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972) or any other law for the time being in force or any instrument having the force of law, the General Insurance Corporation of India formed under section 9 of the said Act and the insurance companies for the time being carrying on general insurance business in India shall provide for paying in accordance with the provisions of this Act and the scheme, compensation in respect of the death of, or grievous hurt to, persons resulting from hit and run motor accidents.
(3) Subject to the provisions of this Act and the scheme, there shall be paid as compensation-
(a) in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of 1[twenty-five thousand rupees];
(b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed sum of 2[twelve thousand and five hundred rupees].
(4) The provisions of sub-section (1) of section 166 shall apply for the purpose of making applications for compensation under this section as they apply for the purpose of making applications for compensation referred to in that sub-section.
1. Subs. by Act 54 of 1994, sec. 50, for “eight thousand and five hundred rupees” (w.e.f. 14-11-1994).
2. Subs. by Act 54 of 1994, sec. 50, for “two thousand rupees” (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988 Sections 161,163 – Compensation – Injured, 45 years old, having income of Rs. 4,000/-p.m. – Likely to be increased – Right leg amputated – Overall disability of 50%. Held that additional amount of Rs. 2 lacs be paid.
GRIFAN v/s SARBJEET SINGH [(2000) 9 SCC 338 = JT 2000 (8) SC 55 = (2000) 7 Supreme 378]
(1) The payment of compensation in respect of the death of, or grievous hurt to, any person under section 161 shall be subject to the condition that if any compensation (hereafter in this sub-section referred to as the other compensation) or other amount in lieu of or by way of satisfaction of a claim for compensation is awarded or paid in respect of such death or grievous hurt under any other provision of this Act or any other law or otherwise so much of the other compensation or other amount aforesaid as is equal to the compensation paid under section 161 shall be refunded to the insurer.
(2) Before awarding compensation in respect of an accident involving the death of, or bodily injury to, any person arising out of the use of a motor vehicle or motor vehicles under any provision of this Act (other than section 161) or any other law, the Tribunal, Court or other authority awarding such compensation shall verify as to whether in respect of such death or bodily injury compensation has already been paid under section 161 or an application for payment of compensation is pending under that section, and such Tribunal, Court or other authority shall,-
(a) if compensation has already been paid under section 161, direct the person liable to pay the compensation awarded by it to refund to the insurer, so much thereof as is required to be refunded in accordance with the provisions of sub-section (1);
(b) if an application for payment of compensation is pending under section 161 forward the particulars as to the compensation awarded by it to the insurer.
Explanation.-For the purpose of this sub-section, an application for compensation under section 161 shall be deemed to be pending-
(i) if such application has been rejected, till the date of the rejection of the application, and
(ii) in any other case, till the date of payment of compensation in pursuance of the application.
(1) The Central Government may, by notification in the Official Gazette, make a scheme1 specifying, the manner in which the scheme shall be administered by the General Insurance Corporation, the form, manner and the time within which applications for compensation may be made, the officers or authorities to whom such applications may be made, the procedure to be followed by such officers or authorities for considering and passing orders on such applications, and all other matters connected with, or incidental to, the administration of the scheme and the payment of compensation.
(2) A scheme made under sub-section (1) may provide that-
(a) a contravention of any provision thereof shall be punishable with imprisonment for such term as may be specified but in no case exceeding three months, or with fine which may extend to such amount as may be specified but in no case exceeding five hundred rupees or with both;
(b) the powers, functions or duties conferred or imposed on any officer or authority by such scheme may be delegated with the prior approval in writing of the Central Government, by such officer or authority to any other officer or authority;
(c) any provision of such scheme may operate with retrospective effect from a date not earlier than the date of establishment of the Solatium, Fund under the Motor Vehicles Act, 1939 (4 of 1939) as it stood immediately before the commencement of this Act:
Provided that no such retrospective effect shall be given so as to prejudicially affect the interests of any person who may be governed by such provision.
1. Solatium Scheme, 1989 vide S.O. 440 (E), dated 12th June, 1989, published in the Gazette of India, Extra., Pt. II, sec. 3(ii) dated 12th June, 1989. See Universal’s Central Motor Vehicles Rules, 1989 along with allied material.
1[163A. Special provisions as to payment of compensation on structured formula basis.
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation.-For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
1. Ins. by Act 54 of 1994, sec. 51 (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988, Sections 163A and 166 – Compensation – MACT claim filed u/s 166 of the Act but subsequently on an application treated the claim u/s 163-A and award passed and amount of compensation withdrawn by claimant – Thereafter, an application filed that the claim petition filed u/s 166 may be decided – Held that the respondents having obtained the compensation, finally determined u/s 163A of the Act are precluded from proceeding further with the petition filed u/s 166 of the Act – The impugned judgment of the High Court upholding the order passed by the Tribunal to permit the respondents to proceed further with the petition filed u/s 166 of the Act held not sustainable and liable to be set aside.
ORIENTAL INSURANCE CO.LTD. v/s DHANBAI KANJI GADHVI & ORS. [2011(2) SCALE 39 = 2011 AIR(SCW) 1269]
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Motor Vehicles Act, 1988, Sections 163A, 166 – Compensation – Injury cases – Assessment of future loss of earnings due to permanent disability – Principles discussed.
RAJ KUMAR v/s AJAY KUMAR & ANR. [2010(12) SCALE 265 = (2011) 1 SCC 343]
Where a person is entitled to claim compensation under section 140 and section 163A, he shall file the claim under either of the said sections and not under both.]
1. Ins. by Act 54 of 1994, sec. 51 (w.e.f. 14-11-1994).
(1) The Central Government may make rules for the purpose of carrying into effect the provisions of this Chapter, other than the matters specified in section 159.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for-
(a) the forms to be used for the purposes of this Chapter;
(b) the making of applications for and the issue of certificates of insurance;
(c) the issue of duplicates to replace certificates of insurance lost, destroyed or mutilated;
(d) the custody, production, cancellation and surrender of certificates of insurance;
(e) the records to be maintained by insurers of policies of insurance issued under this Chapter;
(f) the identification by certificates or otherwise of persons or vehicles exempted from the provisions of this Chapter;
(g) the furnishing of information respecting policies of insurance by insurers;
(h) adopting the provisions of this Chapter to vehicles brought into India by persons making only a temporary stay therein or to vehicles registered in a reciprocating country and operating on any route or within any area in India by applying those provisions with prescribed modifications;
(i) the form in which and the time limit within which the particulars referred to in section 160 may be furnished; and
(j) any other matter which is to be, or may be, prescribed.
(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.
Explanation.-For the removal of doubts, it is hereby declared that the expression “claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles” includes claims for compensation under section 140 1[and section 163A].
(2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof.
(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he-
(a) is, or has been, a Judge of a High Court, or
(b) is, or has been a District Judge, or
(c) is qualified for appointment as a High Court Judge 1[or as a District Judge].
(4) Where two or more Claims Tribunals are constituted for any area, the State Government, may by general or special order, regulate the distribution of business among them.
1. Added by Act 54 of 1994, sec. 52 (w.e.f. 14-11-1994).
(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
1[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.]
2[***]
3[(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.]
1. Subs. by Act 54 of 1994, sec. 53, for sub-section (2) (w.e.f. 14-11-1994).
2. Sub.-section (3) omitted by Act 53 of 1994, sec. 53 (w.e.f. 14-11-1994).
3. Subs. by Act 54 of 1994, sec. 53, for sub-section (4) (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988, Section 166 – Compensation – Claim petition denied by the Tribunal as well as High Court on the ground that concerned vehicle was not involved in the accidentas in the FIR lodged by the brother of the victim neither the number of the vehicle nor the name of the driver was mentioned – Evidence of witness discarded solely on the ground that name of witness was not mentioned in the FIR, so it was not possible for the witness to see the incident – Held to be not a proper assessment of the fact situation in this case – In a case relating to motor accident claims the claimants are not required to prove the case as it is required to be done in a criminal trial – The Tribunal has applied multiplier of 16 even though the age of deceased had been determined as 29 years – Considering the age of the deceased of the victim the multiplier of 17 should be applied and the amount of compensation comes to Rs. 3,93,428/- apart from the amount of funeral expenses -Keeping in view the number of claimants of which three are minor children in exercise of its power under Article 142 of the Constitution an amount of Rs. 6 lacs awarded including the amounts of consortium and funeral expenses along with interest @7% from the date of presentation of the claim petition till the date of actual payment.
KUSUM LATA AND OTHERS v/s SATBIR AND OTHERS [2011 AIR(SCW) 1593 = (2011) 3 SCC 646]
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Motor Vehicles Act, 1988, Section 166 – Compensation – Addition of income for future prospectus – Multiplier – Split multiplier – Though there was evidence on record for future promotion of deceased who was 51 years of age but that not taken into account and taking income of the deceased at Rs. 16,000/- after applying multiplier of 11 compensation of Rs. 14,27,496/- awarded by the Tribunal and the same reduced to Rs. 11,82,000/- by introducing the concept of split multiplier and departed from the multiplier used by the Tribunal without disclosing any reason therefor – Multiplier of 11 applied by the Tribunal upheld – The judgment of the High Court held to be perverse and liable to be set aside -Taking into account the future prospectus of the deceased his income taken to be 20,000/- instead of Rs. 16,000/- and by applying multiplier of 11 the total compensation award rounded off to Rs. 18,0,0000.
K.R. MADHUSUDHAN & ORS. v/s ADMINISTRATIVE OFFICER & ANR. [2011(2) SCALE 511 = 2011 AIR(SCW) 1390]
Notwithstanding anything contained in the Workmen’s Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen’s Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.
On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.
Comment / Related Citation:
Motor Vehicles Act, 1988, Sections 2(30),50 and 168 – Compensation – Liability of owner – ‘J’ registered owner of the vehicle sold the vehicle to ‘S’ – Notwithstanding the sale of vehicle neither the transferor ‘J’ nor the transferee ‘S’ took any step for change of the name of the owner in the certificate of registration of the vehicle – In view of the omission ‘J’ must be deemed to continue as the owner of the vehicle for the purpose of the Act even though under civil law he ceased to be its owner after sale of vehicle – ‘J’ whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of compensation amount – Since insurance policy in respect of the truck was taken out in ‘J’s name he was indemnified and the claim will be shifted to the insurer.
PUSHPA @ LEELA & ORS. v/s SHAKUNTALA & ORS. [2011 AIR(SCW) 562 = JT 2011 (1) SC 117 = 2011(1) SCALE 303 = (2011) 2 SCC 240 = AIR 2011 SC 682]
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Motor Vehicles Act, 1988, Sections 163A,165(1),166,168,169(2) – Compensation – Claim petition – Maintainability – Death of owner-driver in accident – Claim petition file u/s 163A in which plea raised by the Insurance Company that claim petition not competent because the deceased was not a third party being the driver-owner of the vehicle under the Act 1988 and the same upheld by the Tribunal and the High Court – Held that the inquiry under Section 168 and the summary procedure that the Claims Tribunal has to follow do not contemplate the controversy arising out of claim application being decided in piecemeal – The Claims Tribunal required to dispose of all issues one way or the other in one go while deciding the claim application -The objection raised by the Insurance Company about the maintainability of claim petition is intricately connected with its liability which in the facts and circumstances of the case is dependent on the determination of the effect of additional premium paid by the insured to cover the risk of the driver and other terms of the policy – Matter remitted to the Tribunal for decision and passing of award.
BIMLESH AND ORS. v/s NEW INDIA ASSURANCE CO. LTD. [2010 AIR(SCW) 4581 = AIR 2010 SC 2591 = (2010) 8 SCC 591 = 2010(7) SCALE 732 = (2010) 9 SCR 605 = (2010) 3 SCC(Cri) 1025]
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry.
Where in the course of any inquiry, the Claims Tribunal is satisfied that-
(a) there is collusion between the person making the claim and the person against whom the claim is made, or
(b) the person against whom the claim is made has failed to contest the claim,
it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom (he claim has been made.
Comment / Related Citation:
Motor Vehicles Act, 1988, Section 170 – MACT – Compensation – Award by Tribunal – Appeal by insurer – Dismissal by High Court on sole ground that the Tribunal while granting permission to the insurer to contest claim under Section 170 of the Act did not assign any reason for granting permission – Order of the High Court liable to be set aside.
NATIONAL INSURANCE COMPANY LIMITED v/s MEGHJI NARAN SORATIYA & ORS. [(2009) 3 SCR 875 = 2009 AIR(SCW) 2340 = 2009(4) SCALE 50 = (2009) 12 SCC 796 = (2010) 1 SCC(Cri) 750]
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Motor Vehicles Act (59 of 1988), Sections. 170(b), 173.- Advocate(S): P. K. Seth, S. K. Gupta, Anurag Pandey and Anil Arora, Advocates, for Appellant; Mehul Vakharia, P. Venugopal, P. S. Sudheer, Advocates, for M/s. K. J. John and Co., Advocates, for Respondents.
UNITED INDIA INSURANCE CO. LTD v/s JYOTSNABEN SUDHIRBHAI PATEL AND OTHERS [AIR 2003 SC 3127 = (2003) 7 SCC 212 = (2003) 6 Scale 288 = 2003 (Supp2) SCR 380 = JT 2003 (6) SC 547]
Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.
Comment / Related Citation:
Motor Vehicles Act, 1988 – Sections 163,168-A and 171- MACT – Compensation – Multiplier – Applicability of appropriate multiplier challenged – Deviation from multiplier as provided under Schedule not permissible unless special reason there for indicated – In case of first deceased aged 46 years, multiplier of 13 would be applicable and in case of second deceased aged 42 years, multiplier of 15 would be applicable – High Court applied multiplier of 11 and14 – Held that though High Court enhanced amount, refused to award interest, stating “since appeals are being disposed of at motion stage, no interest on enhanced amount of compensation will be paid to claimants” – Found it to be no good reason to deny interest on enhanced amount – It would be taken that amount enhanced liable to be paid to claimant’s right from beginning though enhanced later on appeal – By applying higher multipliers of 13 and 15 in regard to claimants of both parties respectively, amount of compensation shall be further increased – Interest would also be payable on said increased amount – Thus compensation enhanced with interest – Appeals allowed.
SWARAN LATA AND OTHERS v/s RAM CHET AND OTHERS [(2007) 15 SCC 650 = (2010) 3 SCC(Cri) 620]
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Motor Vehicles Act, 1988 – Section 166, 168, 173 and 171 – MACT – Compensation – Permanent disability to the extent of 65% to 70% – Tribunal awarded compensation of Rs 15,36,460/- enhanced to Rs 21,60,460/- by High Court – Appeal to Supreme Court. Held, enhancements by High Court under headings “fracture of both the bones of right leg”, “compound segmental fracture of shaft of right femur” and “extra nourishment food and miscellaneous expenses”, set aside -Taking future promotions as uncertain and it may or may not happen depending on exigency of service “Loss of future income” reduced. Award by Tribunal under headings “plastic surgery” and “loss of marriage prospects”, set aside. But conveyance charges as awarded by High Court upheld, considering the fact that claimant has to go to hospital for proper check-up, Compensation reduced to Rs 12,61,400 with interest @ 9% p.a.
MANAGING DIRECTOR, BMTC v/s SYED NISAR AHMED [(2009) 16 SCC 414]
(1) Any Claims Tribunal adjudicating upon any claim for compensation under this Act, may in any case where it is satisfied for reasons to be recorded by it in writing that-
(a) the policy of insurance is void on the ground that it was obtained by representation of fact which was false in any material particular, or
(b) any party or insurer has put forward a false or vexatious claim or defence, such Tribunal may make an order for the payment, by the party who is guilty of misrepresentation or by whom such claim or defence has been put forward of special costs by way of compensation to the insurer or, as the case may be, to the party against whom such claim or defence has been put forward.
(2) No Claims Tribunal shall pass an order for special costs under sub-section (1) for any amount exceeding one thousand rupees.
(3) No person or insurer against whom an order has been made under this section shall, by reason thereof be exempted from any criminal liability in respect of such mis-representation, claim or defence as is referred to in sub-section (1).
(4) Any amount awarded by way of compensation under this section in respect of any misrepresentation, claim or defence, shall be taken into account in any subsequent suit for damages for compensation in respect of such misrepresentation, claim or defence.
(1) Subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent, of the amount so awarded, whichever is less, in the manner directed by the High Court:
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.
Comment / Related Citation:
Motor Vehicles Act, 1988, Section 173 – Motor Vehicle accident – Compensation – Income – Deductions – Net income – Deduction as 30% towards income tax as assessed by the High Court not disturbed – Held that while ascertaining the income of the deceased any deductions shown in the salary certificate as deductions towards GPF, life insurance premium, repayments of loans etc. should not be excluded from the income – The deduction towards income tax/surcharge alone should be considered to arrive at the net income of the deceased.
SHYAMWATI SHARMA & ORS. v/s KARAM SINGH & ORS. [JT 2010 (7) SC 214 = 2010 AIR(SCW) 4391 = 2010(6) SCALE 763 = (2010) 8 SCR 417 = (2010) 12 SCC 378]
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Motor Vehicles Act, 1988, Sections 166,173 – Compensation – Multiplier – The age of deceased was 48 years at the time of accident – Multiplier of 13 applied by tribunal reduced to 10 by the High Court – Held that the Tribunal had rightly applied multiplier of 13 – Award of MACT restored – The interest @7.5% p.a. awarded by High Court from the date of petition till the date of payment upheld.
PODDUTOORI LALITA DEVI AND ANR. v/s A.P.S.R.T.C. REP. BY MANAGING DIRECTOR AND ANR. [2010(2) SCALE 587]
Where any amount is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue.
Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court.
A State Government may make rules for the purpose of carrying into effect the provisions of sections 165 to 174, and in particular, such rules may provide for all or any of the following matters, namely:-
(a) the form of application for claims for compensation and the particulars it may contain, and the fees, if any, to be paid in respect of such application;
(b) the procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;
(c) the powers vested in a Civil Court which may be exercised by a Claims Tribunal;
(d) the form and the manner in which and the fees (if any) on payment of which an appeal may by preferred against an award of a Claims Tribunal; and
(e) any other matter which is to be, or may be, prescribed.
Whoever contravenes any provision of this Act or of any rule, regulation or notification made thereunder shall, if no penalty is provided for the offence be punishable for the first offence with fine which may extend to one hundred rupees, and for any second or subsequent offence with fine which may extend to three hundred rupees.
(1) Whoever travels in a stage carriage without having a proper pass or ticket with him or being in or having alighted from a stage carriage fails or refuses to present for examination or to deliver up his pass or ticket immediately on a requisition being made therefor, shall be punishable with fine which may extend to five hundred rupees.
Explanation.-In this section, “pass” and “ticket” have the meanings respectively assigned to them in section 124.
(2) If the conductor of a stage carriage, or the driver of a stage carriage performing the functions of a conductor in such stage carriage, whose duty is-
(a) to supply a ticket to a person travelling in a stage carriage on payment of fare by such person, either wilfully or negligently,-
(i) fails or refuses to accept the fare when tendered, or
(ii) fails or refuses to supply a ticket, or
(iii) supplies an invalid ticket, or
(iv) supplies a ticket of a lesser value, or
(b) to check any pass or ticket, either wilfully or negligently fails or refuses to do so,
he shall be punishable with fine which may extend to five hundred rupees.
(3) If the holder of a permit or the driver of a contract carriage refuses, in contravention of the provisions of this Act or rules made thereunder, to ply the contract carriage or to carry the passengers, he shall,-
(a) in the case of two-wheeled or three-wheeled motor vehicles, be punishable with fine which may extend to fifty rupees; and
(b) in any other case, be punishable with fine which may extend to two hundred rupees.
(1) Whoever wilfully disobeys any direction lawfully given by any person or authority empowered under this Act to give such direction, or obstructs any person or authority in the discharge of any functions which such person or authority is required or empowered under this Act to discharge, shall, if no other penalty is provided for the offence be punishable with fine which may extend to five hundred rupees.
(2) Whoever, being required by or under this Act to supply any information, wilfully withholds such information or gives information which he knows to be false or which he does not believe to be true, shall, if no other penalty is provided for the offence, be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
Whoever, being the owner or person in charge of a motor vehicle, causes or permits, any other person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.
Whoever drives a motor vehicle in contravention of section 3 or section 4 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
(1) Whoever, being disqualified under this Act for holding or obtaining a driving licence drives a motor vehicle in a public place of in any other place, or applies for or obtains a driving licence or, not being entitled to have a driving licence issued to him free of endorsement, applies for or obtains a driving licence without disclosing the endorsement made on a driving licence previously held by him shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees or with both, and any driving licence so obtained by him shall be of no effect.
(2) Whoever, being disqualified under this Act for holding or obtaining a conductor’s licence, acts as a conductor of a stage carriage in a public place or plies for or obtains a conductor’s licence or, not being entitled to have a conductor’s licence issued to him free of endorsement, applies for or obtains a conductor’s licence without disclosing the endorsements made on a conductor’s licence previously held by him, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one hundred rupees, or with both, and any conductor’s licence so obtained by him shall be of no effect.
Any person who contravenes the provisions of sub-section (3) of section 109, shall be punishable with a fine of one thousand rupees for the first offence and with a fine of five thousand rupees for any subsequent offences.]
1. Ins. by Act 54 of 1994, sec. 54 (w.e.f. 14-11-1994).
(1) Whoever drives a motor vehicle in contravention of the speed limits referred to in section 112 shall be punishable with fine which may extend to four hundred rupees, or, if having been previously convicted of an offence under this sub-section is again convicted of an offence under this sub-section, with fine which may extend to one thousand rupees.
(2) Whoever causes any person who is employed by him or is subject to his control in driving to drive a motor vehicle in contravention of the speed limits referred to in section 112 shall be punishable with fine which may extend to three hundred rupees, or, if having been previously convicted of an offence under this sub-section, is again convicted of an offence under this sub-section, with fine which may extend to five hundred rupees.
(3) No person shall be convicted of an offence punishable under sub-section (1) solely on the evidence of one witness to the effect that in the opinion of the witness such person was driving at a speed which was unlawful, unless that opinion is shown to be based on an estimate obtained by the use of some mechanical device.
(4) The publication of a time table under which or the giving of any direction that any journey or part of a journey is to be completed within a specified time shall, if in the opinion of the Court it is not practicable in the circumstances of the case for that journey or part of a journey to be completed in the specified time without contravening the speed limits referred to in section 112 be prima fade evidence that the person who published the time table or gave the direction has committed an offence punishable under sub-section (2).
Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable for the first offence with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, and for any second or subsequent offence if committed within three years of the commission of a previous similar offence with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both.
Whoever, while driving, or attempting to drive, a motor vehicle,-
1[(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or]
(b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.
Explanation.-For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle.
1. Subs. by Act 54 of 1994, sec. 55, for clause (a) (w.e.f. 14-11-1994).
Whoever drives a motor vehicle in any public place when he is to his knowledge suffering from any disease or disability calculated to cause his driving of the vehicle to be a source of danger to the public, shall be punishable for the first offence with fine which may extend to two hundred rupees and for a second or subsequent offence with fine which may extend to five hundred rupees.
Whoever fails to comply with the provisions of clause (c) of sub-section (1) of section 132 or of section 133 or section 134 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both or, if having been previously convicted of an offence under this section, he is again convicted of an offence under this section, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Whoever abets the commission of an offence under section 184 or section 185 or section 186 shall be punishable with the punishment provided for the offence.
Whoever without the written consent of the State Government permits or takes part in a race or trial of speed of any kind between motor vehicles in any public place shall be punishable with imprisonment for a term which may extend to one month, or with a fine which may extend to five hundred rupees, or with both.
(1) Any person who drives or causes or allows to be driven in any public place a motor vehicle or trailer while the vehicle or trailer has any defect, which such person knows of or could have discovered by the exercise of ordinary care and which is calculated to render the driving of the vehicle a source of danger to persons and vehicles using such place, shall be punishable with fine which may extend to two hundred and fifty rupees or, if as a result of such defect an accident is caused causing bodily injury or damage to property, with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.
(2) Any person who drives or causes or allows to be driven, in any public place a motor vehicle, which violates the standards prescribed in relation to road safety, control of noise and air-pollution,’ shall be punishable for the first offence with a fine of one thousand rupees and for any second or subsequent offence with a fine of two thousand rupees.
(3) Any person who drives or causes or allows to be driven, in any public place a motor vehicle which violates the provisions of this Act or the rules made thereunder relating to the carriage of goods which are of dangerous or hazardous nature to human life, shall be punishable for the first offence which may extend to three thousand rupees, or with imprisonment for a term which may extend to one year, or with both, and for any second or subsequent offence with fine which may extend to five thousand rupees, or with imprisonment for a term which may extend to three years, or with both.
Whoever being an importer of or dealer in motor vehicles, sells or delivers or offers to sell or deliver a motor vehicle or trailer in such condition that the use thereof in a public place would be in contravention of Chapter VII or any rule made thereunder or alters the motor vehicle or trailer so as to render its condition such that its use in a public place would be in contravention of Chapter VII or any rule made thereunder shall be punishable with fine which may extend to five hundred rupees:
Provided that no person shall be convicted under this section if he proves that he had reasonable cause to believe that the vehicle would not be used in a public place until it had been put into a condition in which it might lawfully be so used.
1[192. Using vehicle without registration.
(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of section 39 shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees for a second or subsequent offence with imprisonment which may extend to one year or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both:
Provided that the Court may, for reasons to be recorded, impose a lesser punishment.
(2) Nothing in this section shall apply to the use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injuries or for the transport of food or materials to relieve distress or of medical supplies for a like purpose:
Provided that the person using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use.
(3) The Court to which an appeal lies from any conviction in respect of an offence of the nature specified in sub-section (1), may set aside or vary any order made by the Court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made.
1. Subs, by Act 54 of 1994, sec. 56, for section 192 (w.e.f. 14-11-1994).
1[192A. Using vehicle without permit.
(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of sub-section (1) of section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than three months or with fine which may extend lo ten thousand rupees but shall not be less than five thousand rupees or with both:
Provided that the court may for reasons to be recorded, impose a lesser punishment.
(2) Nothing in this section shall apply to the use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injury or for the transport of materials for repair or for the transport of food or materials to relieve distress or of medical supplies for a like purpose:
Provided that the person using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use.
(3) The court to which an appeal lies from any conviction in respect of an offence of the nature specified in sub-section (1), may set aside or vary any order made by the court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made.]
1. Subs, by Act 54 of 1994, sec. 56, for section 192 (w.e.f. 14-11-1994).
Whoever engages himself as an agent or canvasser in contravention of the provisions of section 93 or of any rules made thereunder shall be punishable for the first offence with fine which may extend to one thousand rupees and for any second or subsequent offence with imprisonment which may extend to six’, months, or with fine which may extend to two thousand rupees, or with both.
1[(1) Whoever drivers I a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of section 113 or section 114 or section 115 shall be punishable with minimum fine of two thousand rupees and an additional amount of one thousand rupees per tonne of excess load, together with the liability to pay charges for off-loading of the excess load].
(2) Any driver of a vehicle who refuses to stop and submit his vehicle to weighing after being directed to do so by an officer authorised in this behalf under section 114 or removes or causes the removal of the load or part of it prior to weighing shall be punishable with fine which may extend to three thousand rupees.
1. Subs, by Act 54 of 1994, sec. 57, for sub-section (1) (w.e.f. 14-11-1994).
(1) Whoever having been convicted of an offence under this Act or the rules made thereunder commits a similar offence on a second or subsequent occasion within three years of the commission of the previous offence, no Court shall, except for reasons to be recorded by it in writing, impose on him a fine of less than one-fourth of the maximum amount of the fine imposable for such offence.
(2) Nothing in sub-section (1) shall be construed as restricting the power of the Court from awarding such imprisonment as it considers necessary in the circumstances of the case not exceeding the maximum specified in this Act in respect of that offence
Whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of section 146 shall be punishable with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both.
(1) Whoever takes and drives away any motor vehicle without having either the consent of the owner thereof or other lawful authority shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both:
Provided that no person shall be convicted under this section if the Court is satisfied that such person acted in the reasonable belief that he had lawful authority or in the reasonable belief that the owner would in the circumstances of the case have given his consent if he had been asked therefor.
(2) Whoever, unlawfully by force or threat of force or by any other form of intimidation, seizes or exercises control of a motor vehicle, shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
(3) Whoever attempts to commit any of the acts referred to in sub-section (1) or sub-section (2) in relation to any motor vehicle, or abets the commission of any such act, shall also be deemed to have committed an offence under sub-section (1) or, as the case may be, sub-section (2).
Whoever otherwise than with lawful authority or reasonable excuse enters or moves any stationary motor vehicle or tampers with the brake or any part of the mechanism of a motor vehicle shall be punishable with fine which may extend to one hundred rupees.
(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:
Provided that nothing in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything .contained in sub-section (1), where an offence under this Act has been committed by a company, and it is proved that the offence was committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.-For the purposes of this section-
(a) “company”, means any body corporate and includes a firm or other association of individuals; and
(b) “director”, in relation to a firm, means a partner in the firm.
(1) Any offence whether committed before or after the commencement of this Act punishable under section 177, section 178, section 179, section 180, section 181, section 182, sub-section (1) or sub-section (2) of section 183, section 184, section 186, 1[section 189, sub-section (2) of section 190]; section 191, section 192, section 194, section 196, or section 198, may either before or after the institution of the prosecution, be compounded by such officers or authorities and for such amount as the State Government may, by notification in the Official Gazette, specify in this behalf.
(2) Where an offence has been compounded under sub-section (1) the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence.
1. Subs. by Act 54 of 1994, sec. 58, for “section 189″ (w.e.f. 14-11-1994).
(1) Whoever keeps a disabled vehicle on any public place, in such a manner, so as to cause impediment to the free flow of traffic, shall be liable for penalty up to fifty rupees per hour, so long as it remains in that position:
Provided that the vehicle involved in accidents shall be liable for penalty only from the time of completion of inspection formalities under the law:
1[Provided further that where the vehicle is removed by a Government agency, towing charges shall be recovered from the vehicle owner or person in-charge of such vehicle.]
2[(2) Penalties or towing charges under this section shall be recovered by such officer or authority as the State Government may, by notification in the Official Gazette, authorise.]
1. Ins. by Act 54 of 1994, sec. 59 (w.e.f. 14-11-1994).
2. Subs. by Act 54 of 1994, sec. 59, for sub-section (2) (w.e.f. 14-11-1994)
(1) A police officer in uniform may arrest without warrant any person who in his presence commits an offence punishable under section 184 or section 185 or section 197:
Provided that any person so arrested in connection with an offence punishable under section 185 shall, within two hours of his arrest, be subjected to a medical examination referred to in sections 203 and 204 by a registered medical practitioner failing which he shall be released from custody.
1[(2) A police officer in uniform may arrest without warrant any person, who has committed an offence under this Act, if such person refuses to give his name and address.]
(3) A police officer arresting without warrant the driver of a motor vehicle shall if the circumstances so require take or cause to be taken any steps he may consider proper for the temporary disposal of the vehicle.
1. Subs. by Act 54 of 1994, sec. 60, for sub-section (2) (w.e.f. 14-11-1994).
1[(1) A police officer in uniform or an officer of the Motor Vehicles Department, as may be authorised in this behalf by that Department, may require any person driving or attempting to drive a motor vehicle in a public place to provide one or more specimens of breath for breath test there or nearby, if such police officer or officer has any reasonable cause to suspect him of having committed an offence under section 185:
Provided that requirement for breath test shall be made (unless, it is made) as soon as reasonably practicable after the commission of such offence.]
(2) If a motor vehicle is involved in an accident in a public place and a police officer in uniform has any reasonable cause to suspect that the person who was driving the motor vehicle at the time of the accident had alcohol in his blood or that he was driving under the influence of a drug referred to in section 185 he may require the person so driving the motor vehicle, to provide a specimen of his breath for a breath test-
(a) in the case of a person who is at a hospital as an indoor patient, at the hospital,
(b) in the case of any other person, either at or near the place where the requirement is made, or, if the police officer thinks fit, at a police station specified by the police officer:
Provided that a person shall not be required to provide such a specimen while at a hospital as an indoor patient if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or objects to the provision of a specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient.
(3) If it appears to a police officer in uniform, in consequence of a breath test carried out by him on any person under sub-section (1) or sub-section
(2) that the device by means of which the test has been carried out indicates the presence of alcohol in the person’s blood, the police officer may arrest that person without warrant except while that person is at a hospital as an indoor patient.
(4) If a person, required by a police officer under sub-section (1) or subsection (2) to provide a specimen of breath for a breath test, refuses or fails to do so and the police officer has reasonable cause to suspect him of having alcohol in his blood, the police officer may arrest him without warrant except while he is at a hospital as an indoor patient.
(5) A person arrested under this section shall while at a police station, be given an opportunity to provide a specimen of breath for a breath test there.
(6) The results of a breath test made in pursuance of the provisions of this section shall be admissible in evidence.
Explanation.-For the purposes of this section “breath test”, means a test for the purpose of obtaining an indication of the presence of alcohol in a person’s blood carried out on one or more specimens of breath provided by that person, by means of a device of a type approved by the Central Government by notification in the Official Gazette, for the purpose of such a test.
1. Subs. by Act 54 of 1994, sec. 61, for sub-section (1) (w.e.f. 14-11-1994).
(1) A person who has been arrested under section 203 may, while at a police station be required by a police officer to provide to such registered medical practitioner as may be produced by such police officer, a specimen of his blood for a laboratory test if,-
(a) it appears to the police officer that the device, by means of which breath test was taken in relation to such person, indicates the presence of alcohol in the blood of such person, or
(b) such person, when given the opportunity to submit to a breath test, has refused, omitted or failed to do so:
Provided that where the person required to provide such specimen is a female and the registered medical practitioner produced by such police officer is a male medical practitioner, the specimen shall be taken only in the presence of a female, whether a medical practitioner or not.
(2) A person while at a hospital as an indoor patient may be required by a police officer to provide at the hospital a specimen of his blood for a laboratory test-
(a) if it appears to the police officer that the device by means of which test is carried out in relation to the breath of such person indicates the presence of alcohol in the blood of such person, or
(b) if the person having been required, whether at the hospital or elsewhere, to provide a specimen of breath for a breath test, has refused, omitted or failed to do so and a police officer has reasonable cause to suspect him of having alcohol in his blood:
Provided that a person shall not be required to provide a specimen of his blood for a laboratory test under this sub-section if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or objects to the provision of such specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient.
(3) The results of a laboratory test made in pursuance of this section shall be admissible in evidence.
Explanation.-For the purposes of this section, “laboratory test” means the analysis of a specimen of blood made at a laboratory established, maintained or recognised by the Central Government or a State Government.
In any proceeding for an offence punishable under section 185 if it is proved that the accused when requested by a police officer at any time so to do, had refused, omitted or failed to consent to the taking of or providing a specimen of his breath for a breath test or a specimen of his blood for a laboratory test, his refusal, omission or failure may, unless reasonable cause therefor is shown, be presumed to be a circumstance supporting any evidence given on behalf of the prosecution, or rebutting any evidence given on behalf of the defence, with respect to his condition at that time.
(1) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that any identification mark carried on a motor vehicle or any licence, permit, certificate of registration, certificate of insurance or other document produced to him by the driver or person in charge of a motor vehicle is a false document within the meaning of section 464 of the Indian Penal Code, 1860 (45 of 1860) seize the mark or document and call upon the driver or owner of the vehicle to account for his possession of or the presence in the vehicle of such mark or document.
(2) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that the driver of a motor vehicle who is charged with any offence under this Act may abscond or otherwise avoid the service of a summons, seize any licence held by such driver and forward it into the Court taking cognizance of the offence and the said Court shall on the first appearance of such driver before it, return the licence to him in exchange for the temporary acknowledgment given under sub-section (3).
(3) A police officer or other person seizing a licence under sub-section (2) shall give to the person surrendering the licence a temporary acknowledgment therefor and such acknowledgment shall authorise the holder to drive until the licence has been returned to him or until such date as may be specified by the police officer or other person in the acknowledgment whichever is earlier:
Provided that if any Magistrate, police officer or other person authorised by the State Government in this behalf is, on an application made to him, satisfied that the licence cannot be, or has not been, returned to the holder thereof before the date specified in the acknowledgment for any reason for which the holder is not responsible, the Magistrate, police officer or other person, as the case may be, may extend the period of authorization to drive to such date as may be specified in the acknowledgment.
(1) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of section 3 or section 4 or section 39 or without the permit required by sub-section (1) of section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle:
Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of section 3 or section 4 or without the permit required by sub-section (1) of section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.
(2) Where a motor vehicle has been seized and detained under sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.
(1) The Court taking cognizance of any offence (other than an offence which the Central Government may by rules specify in this behalf) under this Act,-
(i) may, if the offence is an offence punishable with imprisonment under this Act; and
(ii) shall, in any other case,
state upon the summons to be served on the accused person that he-
(a) may appear by pleader or in person; or
(b) may, by a specified date prior to the hearing of the charge, plead guilty to the charge and remit to the Court, by money order, such sum (not exceeding the maximum fine that may be imposed for the offence) as the Court may specify, and the plea of guilt indicated in the money order coupon itself:
Provided that the Court shall, in the case of any of the offences referred to in sub-section (2), state upon the summons that the accused person, if he pleads guilty, shall so plead in the manner specified in clause (b) and shall forward his driving licence to the Court with his letter containing such plea.
(2) Where the offence dealt with in accordance with sub-section (1) is an offence specified by the Central Government by rules for the purposes of this sub-section, the Court shall, if the accused person pleads guilty to the charge and forward his driving licence to the Court with the letter containing his plea, make an endorsement of such conviction on his driving licence.
(3) Where an accused person pleads guilty and remits the sum specified and has complied with the provisions of sub-section (1), or as the case may be, subsections (1) and (2), no further proceedings in respect of the offence shall be taken against him nor shall he be liable, notwithstanding anything to the contrary contained in this Act, to be disqualified for holding or obtaining a licence by reason of his having pleaded guilty.
No person prosecuted for an offence punishable under section 183 or section 184 shall be convicted unless-
(a) he was warned at the time the offence was committed that the question of prosecuting him would be taken into consideration, or
(b) within fourteen days from the commission of the offence, a notice specifying the nature of the offence and the time and place where it is alleged to have been committed was served on or sent by registered post to him or the person registered as the owner of the vehicle at the time of the commission of the offence, or
(c) within twenty-eight days of the commission of the offence, a summons for the offence was served on him:
Provided that nothing, in this section shall apply where the Court is satisfied that-
(a) the failure to serve the notice or summons referred to in this subsection was due to the fact that neither the name and address of the accused nor the name and address of the registered owner of the vehicle could with reasonable diligence have been ascertained in time, or
(b) such failure was brought about by the conduct of the accused.
Every Court by which any person holding a driving licence is convicted of an offence under this Act or of an offence in the commission of which a motor vehicle was used, shall send intimation to-
(a) the licensing authority which issued the driving licence, and
(b) the licensing authority by whom the licence was last renewed,
and every such intimation shall state the name and address of the holder of the licence, the licence number, the date of issue and renewal of the same, the nature of the offence, the punishment awarded for the same and such other particulars as may be prescribed.
Any rule which the Central Government or the State Government is empowered to make under this Act may, notwithstanding the absence of any express provision to that effect, provide for the levy of such fees in respect of applications, amendment of documents, issue of certificates, licences, permits, tests, endorsements, badges, plates, countersignatures, authorisation, supply of statistics or copies of documents or orders and for any other purpose or matter involving the rendering of any service by the officers or authorities under this Act or any rule made thereunder as may be considered necessary:
Provided that the Government may, if it considers necessary so to do, in the public interest by general or special order, exempt any class of persons from the payment of any such fee either in part or in full.
Comment / Related Citation:
Motor Vehicles Act, 1988, Sections 211 and 65 – Motor Vehicle – Registration – Additional fee – Charging of – Whether the State Government to exercise the power to charge additional fee at the time of registration of the vehicle under Section 211? – Point left open.
STATE OF U.P. AND OTHERS, ZODIAC COM SOLUTIONS (P) LTD. v/s CYBER INFOTEC AND OTHERS, STATE OF U.P. AND OTHERS [(2005) 12 SCC 390]
(1) The power to make rules under this Act is subject to the condition of the rules being made after previous publication.
(2) All rules made under this Act shall be published in the Official Gazette, and shall unless some later date is appointed, come into force on the date of such publication.
(3) Every rule made by any State Government shall be laid, as soon as may be after it is made before the State Legislature.
(4) Every rule made by the Central Government under this Act, every scheme made by the Central Government under sub-section (1) of section 75 and sub- section (1) of section 163 and every notification issued by the Central Government under sub-section (4) of section 41, sub-section (1) of section 58, subsection (1) of section 59, the proviso to sub-section (1) of section 112, 1[sub-section (4) of section 163A] and sub-section (4) of section 213 shall be laid, as soon as may 1 be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule, scheme or notification or both Houses agree that the rule or scheme should not be made or the notification should not be issued, the rule, scheme or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule, scheme or notification.
1. Ins. by Act 54 of 1994, sec. 62 (w.e.f. 14-11-1994).
(1) The State Government may, for the purpose of carrying into effect the provisions of the Act, establish a Motor Vehicles Department and appoint as officers thereof such persons as it thinks fit.
(2) Every such officer shall be deemed to be a public servant within the meaning of the Indian Penal Code, 1860 (45 of 1860).
(3) The State Government may make rules to regulate the discharge by officers of the Motor Vehicles Department of their functions and in particular and without prejudice to the generality of the foregoing power to prescribe the uniform to be worn by them, the authorities to which they shall be subordinate, the duties to be preformed by them, the powers (including the powers exercisable by police officers under this Act) to be exercised by them, and the conditions governing the exercise of such powers.
(4) The Central Government may, having regard to the objects of the Act, by notification in the Official Gazette prescribe the minimum qualifications which the said officers or any class thereof shall possess for being appointed as such.
(5) In addition to the powers that may be conferred on any officer of the Motor Vehicle Department under sub-section (3), such officer as may be empowered by the State Government in this behalf shall also have the power to,-
(a) make such examination and inquiry as he thinks fit in order to ascertain whether the provisions of this Act and the rules made thereunder are being observed;
(b) with such assistance, if any, as he thinks fit, enter, inspect and search any premises which is in the occupation of a person who, he has reason to believe, has committed an offence under this Act or in which a motor vehicle in respect of which such offence has been committed is kept:
Provided that,-
(i) any such search without a warrant shall be made only by an officer of the rank of a gazetted officer;
(ii) where the offence is punishable with fine only the search shall not be made after sunset and before sunrise;
(iii) where the search is made without a warrant, the gazetted officer concerned shall record in writing the grounds for not obtaining a warrant and report to his immediate superior that such search has been made;
(c) examine any person and require the production of any register or other document maintained in pursuance of this Act, and take on the spot or otherwise statements of any person which he may consider necessary for carrying out the purposes of this Act;
(d) seize or take copies of any registers or documents or portions thereof as he may consider relevant in respect of an offence under this Act which he has reason to believe has been committed;
(e) launch prosecutions in respect of any offence under this Act and to take a bond for ensuring the attendance of the offender before any Court;
(f) exercise such other powers as may be prescribed;
Provided that no person shall be compelled under this sub-section to answer any question or make any statement tending to incriminate himself.
(6) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be apply to any search or seizure under this section as they apply to any search or seizure under the authority of any warrant issued under section 94 of the Code.
(1) When an appeal has been preferred or an application for revision has been made against any order passed by an original authority under this Act, the appeal or the application for revision shall not operate as a stay of the order passed by the original authority and such order shall remain in force pending the disposal of the appeal or the application for revision, as the case may be, unless the prescribed appellate authority or revisional authority otherwise directs.
(2) Notwithstanding anything contained in sub-section (1), if an application made by a person for the renewal of permit has been rejected by the original authority and such person has preferred an appeal or made an application for revision under this Act against such rejection, the appellate authority or, as the case may be, the revisional authority may by order direct that the permit shall, notwithstanding the expiration of the term specified therein, continue to be valid until the appeal or application for revision is disposed of.
(3) No order made by a competent authority under this Act shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings, unless it appears to the prescribed appellate authority or revisional authority, as the case may be, that such error, omission or irregularity has, in fact, occasioned a failure of justice.
(1) The Central Government may, by notification in the Official Gazette, constitute for the country a National Road Safety Council consisting of a Chairman and such other members as that Government considers necessary and on such terms and conditions as that Government may determine.
(2) A State Government may, by notification in the Official Gazette, constitute for the State a State Road Safety Council consisting of a Chairman and such other members as that Government considers necessary and on such terms and conditions as that Government may determine.
(3) A State Government may, by notification in the Official Gazette, constitute District Road Safety Committee for each district in the State consisting of a Chairman and such other members as that Government considers necessary and on such terms and conditions as that Government may determine.
(4) The Councils and Committees referred to in this section shall discharge such functions relating to the road safety programmes as the Central Government or the State Government, as the case may be, may, having regard to the objects of the Act, specify.
(1) If any difficulty arises in, giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty:
Provided that no such order shall be made after the expiry of a period of three years from the date of commencement of this Act.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament
(1) The Motor Vehicles Act, 1939 (4 of 1939) and any law corresponding to that Act in force in any State immediately before the commencement of this Act in that State (hereafter in this section referred to as the repealed enactments) are hereby repealed.
(2) Notwithstanding the repeal by sub-section (1) of the repealed enactments,-
(a) any notification, rule, regulation, order or notice issued, or any appointment or declaration made, or exemption granted or any confiscation made, or any penalty or fine imposed, any forfeiture, cancellation or any other thing done or any other action taken under the repealed enactments, and in force immediately before such commencement shall, so far as it is not inconsistent with the provisions of the Act, be deemed to have been issued, made, granted, done or taken under the corresponding provision of this Act;
(b) any certificate of fitness or registration or licence or permit issued or granted under the repealed enactments shall continue to have effect after such commencement under the same conditions and for the same period as if this Act had not been passed;
(c) any document referring to any of the repealed enactments or the provisions thereof, shall be construed as referring to this Act or to the corresponding provisions of this Act;
(d) the assignment of distinguishing marks by the registering authority and the manner of display on motor vehicles in accordance with the provision of the repealed enactments shall, after the commencement of this Act, continue to remain in force until a notification under subsection (6) of section 41 of this Act is issued;
(e) any scheme made under section 68C of the Motor Vehicles Act, 1939 (4 of 1939) or under the corresponding law, if any, in force in any State and pending immediately before the commencement of this Act shall be disposed of in accordance with the provisions of section 100 of this Act;
(f) the permits issued under sub-section (1A) of section 68F of the Motor Vehicles Act, 1939 (4 of 1939) or under the corresponding provision, if any, in force in any State immediately before the commencement of this Act shall continue to remain in force until the approved scheme under Chapter VI of this Act is published.
(3) Any penalty payable under any of the repealed enactments may be recovered in the manner provided by or under this Act, but without prejudice to any action already taken for the recovery of such penalty under the repealed enactments.
(4) The mention of particular matters in this section shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals.
Comment / Related Citation:
Motor Vehicle Act, 1988, Sections 166, 147,157 and 217 – MACT – Liability of insurer – Gratuitous passenger – Whether a statutory insurance policy under Motor Vehicles Act, 1988, intended to cover the risk to life or damage to properties of third parties, would cover the risk of death or injury to a gratuitous passenger carried in a private vehicle – Held, no – Observations made in Asha Rani’s case were in connection with carrying passengers in goods vehicle – Same would apply with equal force to gratuitous passengers in other vehicle also – Insurance policy, statutory policy – It owed no liability towards the injuries suffered by the deceased who was a pillion rider
UNITED INDIA INSURANCE CO. LTD., SHIMLA v/s TILAK SINGH AND OTHERS [AIR 2006 SC 1576 = (2006) 4 SCC 404 = 2006 (3) SCR 758 = JT 2006 (4) SC 280 = (2006) 4 Scale 67 = (2006) 2 SCC(Cri) 344]
&
Motor Vehicles Act, 1939 Section 95(2)-Motor Vehicles Act, 1988 Sections 147, 217-It is quite clear that sub-section (2) of Section 147 of the New Act directs that subject to proviso to sub-section (1), a statutory policy shall cover the amount of liability incurred except in respect of damage to any property of a third party for which a limit of rupees six thousand is specified. A careful reading of the proviso to sub-section (2) discloses that any policy of insurance, issued with any limited liability and in force immediately before the commencement of the New Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
NATIONAL INSURANCE COMPANY LTD. v/s BEHARI LAL AND OTHERS [AIR 2000 SC 3053 = (2000) 7 SCC 137 = JT 2000 (10) SC 39 = (2000) 6 Scale 177 = 2000 AIR(SCW) 3352 = (2000) 5 Supreme 747 = (2000) 1 SCC(Cri) 1319 = 2000 (Supp2) SCR 698]
1[217A. Renewal of permits, driving licences and registration granted under the Motor Vehicles Act, 1939.
Notwithstanding the repeal by subsection (1) of section 217 of the enactments referred to in that sub-section, any certificate of fitness or registration or licence or permit issued or granted under the said enactments may be renewed under this Act.]
1. Ins. by Act 27 of 2000, sec. 5 (w.e.f. 11-8-2000).
1[THE FIRST SCHEDULE
MANDATORY SIGNS OF THE FIRST SCHEDULE OF THE MOTOR VEHICLES ACT, 1988
1. The Schedule subs, by S.O.475(E), dated 21 st June, 1989 (w.e.f. 1 -7-1989) and renumbered as the First Schedule by act 54 of 1994, sec. 63 (w.e.f. 14-11-1994).
1[THE SECOND SCHEDULE
(See section 163A)
SCHEDULE FOR COMPENSATION FOR THIRD PARTY FATAL ACCIDENT/INJURY CASES CLAIMS
1. Fatal Accidents:
| Annual Income | Rs. 3000 | Rs. 4200 | Rs. 5400 | Rs. 6600 | Rs. 7800 | Rs. 9000 | Rs. 10200 | Rs. 11400 | Rs. 12000 | Rs. 18000 | Rs. 24000 | Rs. 36000 | Rs. 40000 | |
| AGE OF VICTIM | MULTI- PLIER | RUPEES IN (THOUSANDS | ||||||||||||
| Compensation in case of death | ||||||||||||||
| Rs | Rs | Rs | i. Rs. | |||||||||||
| Up to 15 yrs. | 15 | 60 | 84 | 108 | 132 | 156 | 180 | 204 | 228 | 240 | 360 | 480 | 720 | 800 |
| Above 15 yrs. but not exdg. 20 yrs. | 16 | 57 | 79.8 | 102 | 125.4 | 148.2 | 171 | 193.8 | 216.6 | 228 | 342 | 456 | 684 | 760 |
| Above 20 yrs. but not exdg. 25 yrs. | 17 | 54 | 75.6 | 97.2 | 118.6 | 140.4 | 162 | 183.6 | 205.2 | 216 | 324 | 432 | 648 | 720 |
| Above 25 yrs. but not exdg. 30 yrs. | 18 | 51 | 71.4 | 91.8 | 112.2 | 132.6 | 153 | 173,4 | 193.8 | 204 | 306 | 408 | 612 | 680 |
| Above 30 yrs. but not exdg. 35 yrs. | 17 | 50 | 67.2 | 86.4 | 105.6 | 124.8 | 144 | 163.2 | 192.4 | 192 | 288 | 384 | 576 | 640 |
| Above 35 yrs. but not exdg. 40 yrs. | 16 | 50 | 63 | 81 | 95 | 117 | 135 | 153 | 171 | 180 | 270 | 380 | 540 | 600 |
| Above 40 yrs. but not exdg. 45 yrs. | 15 | 50 | 58.8 | 75.6 | 92.4 | 109.2 | 126 | 142,8 | 159.6 | 168 | 252 | 336 | 504 | 560 |
| Above 45 yrs. but not exdg. 50 yrs. | 13 | 50 | 50.4 | 64.8 | 79.2 | 93.6 | 108 | 122,4 | 136.8 | 144 | 216 | 286 | 432 | 480 |
| Above 50 yrs. but not exdg. 55 yrs. | 11 | 50 | 50 | 54 | 66 | 78 | 90 | 102 | 114 | 120 | 180 | 240 | 360 | 400 |
| Above 55 yrs. but not exdg. 60 yrs. | 8 | 50 | 50 | 50 | 52.8 | 62.4 | 72 | 81.6 | 91.2 | 96 | 114 | 192 | 286 | 320 |
| Above 60 yrs. but not exdg. 65 yrs. | 5 | 50 | 50 | 50 | 50 | 50 | 54 | 61.2 | 68.4 | 72 | 108 | 144 | 216 | 240 |
| Above 65 yrs. | 5 | 50 | 50 | 50 | 50 | 50 | 50 | 51 | 57 | 60 | 90 | 120 | 180 | 200 |
Note: The amount of compensation so arrived at in the case of fatal accident claims shall be reduced by l/3rd in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive.
2. Amount of compensation shall not be less than Rs. 50,000.
3. General Damage (in case of death):
The following General Damages shall be payable in addition to compensation outlined above:
(i) Funeral expenses -Rs. 2,000/-
(ii) Loss of Consortium, if beneficiary is the spouse -Rs. 5,000/-
(iii) Loss of Estate -Rs. 2,500/-
(iv) Medical Expenses-Actual expenses incurred before death supported by bills/vouchers but not exceeding -Rs. 15,000/-
4. General Damages in case of Injuries and Disabilities:
(i) Pain and Sufferings
(a) Grievous injuries -Rs. 5,000/-
(b) Non-grievous injuries -Rs. 1,000/-
(ii) Medical Expenses-Actual expenses incurred supported by bills/vouchers but not exceeding as one time payment -Rs. 15,000/-
5. Disability in non-fatal accidents:
The following compensation shall be payable in case of disability to the victim arising on of non-fatal accidents: Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.
PLUS either of the following:-
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.
Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen’s Compensation Act, 1923.
6. Notional income for compensation to those who had no income prior to accident:-
Fatal and disability in non-fatal accidents:-
(a) Non-earning persons -Rs. 15,000 p.a
(b) Spouse -Rs. l/3rd of income of the earning/surviving spouse.
In case of other injuries only “General Damage” as applicable.]
1. Ins. by Act 54 of 1994, sec. 64 (w.e.f. 14-11-1994).
Comment / Related Citation:
Motor Vehicles Act, 1988, Second Schedule – MACT – Compensation – Loss of income - Multiplier – Serious injuries in motor accident on left hand and right leg -Rod had to be inserted – Permanent disability assessed at 35% -Appellant’s income determined at Rs. 3,000/- p.m. – As he was aged 25 years multiplier of 17 should be applied – Calculating the amount of compensation on that basis he was entitled to Rs. 2,14,000/- towards loss of income instead of lump sum compensation of Rs. 1,75,000/- awarded by the High Court – He would also be entitled to medical expenses incurred by him and compensation on other heads would be granted to him as awarded by the Tribunal.
REJENDRA v/s PRADEEP AND OTHERS [2009(13) SCALE 13]
&
Motor Vehicles Act, 1988, Section 163-A and Sch.II – MACT – Section 163A – Nature and scope - Invoking of provision - Not necessary for claimant to establish any act of negligence on the part of driver – Not necessary even to plead that the death occurred owing to any wrongful act or neglect or default of owner of the vehicle – Quantum of compensation to be determined in terms of Schedule II appended thereto – Apart from amount of compensation only funeral expenses, loss of consortium (if beneficiary is the spouse), loss of estate, medical expense, would be payable – Schedule provides structured formula – It stipulates reduction of income of deceased by one-third in consideration of expenses which he would have incurred towards maintaining himself, had he been alive.
BANGALORE METROPOLITAN TPT. CORP. v/s SAROJAMMA & ANR. [AIR 2008 SC 3244 = (2008) 5 SCC 142 = JT 2008 (6) SC 63 = 2008 AIR(SCW) 5480 = 2008 (2) SCR 275 = (2008) 2 Scale 211 = (2008) 2 SCC(Cri) 545]
SCH2. THE SECOND SCHEDULE
| Annual Income | Rs. 3000 | Rs. 4200 | Rs. 5400 | Rs. 6600 | Rs. 7800 | Rs. 9000 | Rs. 10200 | Rs. 11400 | Rs. 12000 | Rs. 18000 | Rs. 24000 | Rs. 36000 | Rs. 40000 | |
| AGE OF VICTIM | MULTI- PLIER | RUPEES IN (THOUSANDS | ||||||||||||
| Compensation in case of death | ||||||||||||||
| Rs | Rs | Rs | i. Rs. | |||||||||||
| Up to 15 yrs. | 15 | 60 | 84 | 108 | 132 | 156 | 180 | 204 | 228 | 240 | 360 | 480 | 720 | 800 |
| Above 15 yrs. but not exdg. 20 yrs. | 16 | 57 | 79.8 | 102 | 125.4 | 148.2 | 171 | 193.8 | 216.6 | 228 | 342 | 456 | 684 | 760 |
| Above 20 yrs. but not exdg. 25 yrs. | 17 | 54 | 75.6 | 97.2 | 118.6 | 140.4 | 162 | 183.6 | 205.2 | 216 | 324 | 432 | 648 | 720 |
| Above 25 yrs. but not exdg. 30 yrs. | 18 | 51 | 71.4 | 91.8 | 112.2 | 132.6 | 153 | 173,4 | 193.8 | 204 | 306 | 408 | 612 | 680 |
| Above 30 yrs. but not exdg. 35 yrs. | 17 | 50 | 67.2 | 86.4 | 105.6 | 124.8 | 144 | 163.2 | 192.4 | 192 | 288 | 384 | 576 | 640 |
| Above 35 yrs. but not exdg. 40 yrs. | 16 | 50 | 63 | 81 | 95 | 117 | 135 | 153 | 171 | 180 | 270 | 380 | 540 | 600 |
| Above 40 yrs. but not exdg. 45 yrs. | 15 | 50 | 58.8 | 75.6 | 92.4 | 109.2 | 126 | 142,8 | 159.6 | 168 | 252 | 336 | 504 | 560 |
| Above 45 yrs. but not exdg. 50 yrs. | 13 | 50 | 50.4 | 64.8 | 79.2 | 93.6 | 108 | 122,4 | 136.8 | 144 | 216 | 286 | 432 | 480 |
| Above 50 yrs. but not exdg. 55 yrs. | 11 | 50 | 50 | 54 | 66 | 78 | 90 | 102 | 114 | 120 | 180 | 240 | 360 | 400 |
| Above 55 yrs. but not exdg. 60 yrs. | 8 | 50 | 50 | 50 | 52.8 | 62.4 | 72 | 81.6 | 91.2 | 96 | 114 | 192 | 286 | 320 |
| Above 60 yrs. but not exdg. 65 yrs. | 5 | 50 | 50 | 50 | 50 | 50 | 54 | 61.2 | 68.4 | 72 | 108 | 144 | 216 | 240 |
| Above 65 yrs. | 5 | 50 | 50 | 50 | 50 | 50 | 50 | 51 | 57 | 60 | 90 | 120 | 180 | 200 |
Note: The amount of compensation so arrived at in the case of fatal accident claims shall be reduced by l/3rd in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive.
2. Amount of compensation shall not be less than Rs. 50,000.
3. General Damage (in case of death):
The following General Demages shall be payable in addition to compensation outlined above:
(i) Funeral expenses -Rs. 2,000/-
(ii) Loss of Consortium, if beneficiary is the spouse -Rs. 5,000/-
(iii) Loss of Estate -Rs. 2,500/-
(iv) Medical Expenses-Actual expenses incurred before death supported by bills/vouchers but not exceeding -Rs. 15,000/-
4. General Damages in case of Injuries and Disabilities:
(i) Pain and Sufferings
(a) Grievous injuries -Rs. 5,000/-
(b) Non-grievous injuries -Rs. 1,000/-
(ii) Medical Expenses-Actual expenses incurred supported by bills/vouchers but not exceeding as one time payment -Rs. 15,000/-
5. Disability in non-fatal accidents:
The following compensation shall be payable in case of disability to the victim arising on of non-fatal accidents: Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.
PLUS either of the following:-
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.
Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen’s Compensation Act, 1923.
6. Notional income for compensation to those who had no income prior to accident:-
Fatal and disability in non-fatal accidents:-
(a) Non-earning persons -Rs. 15,000 p.a
(b) Spouse -Rs. l/3rd of income of the earning/surviving spouse.
In case of other injuries only “General Damage” as applicable.]
1. Ins. by Act 54 of 1994, sec. 64 (w.e.f. 14-11-1994).
(Act No.8 of 1954)
[20th July, 1954]
An Act to provide for modification of zamindari system so as to create an uniform body of preasant proprietors without intermediaries, for the unification of the Punjab and Agra systems of tenancy laws in force in the State of Delhi and to make provision for other matters connected therewith.
(1) This Act may be called the Delhi Land reforms Act 1954.
(2) It extends to the whole of the Union territory of Delhi, but shall not apply to
(a) [(Note: Subs. by s.2 of Delhi act 16 of 1956, for the words “The areas which”) the areas which are or may before the first day of November, 1956 be] included in a Municipality or a Notified Area under the provisions of the Punjab Municipal Act, 1911, or a Cantonment under the provisions of the Cantonments Act, 1924,
(b) [(Note: Subs. by s.2 of Central Act 4 of 1959 for the word “areas, controlled, notified, held, occupied or owned by the Delhi Improvement Trust“.) areas] included in any estate owned by the Central Government or any local authority, and
(c) Areas held and occupied for public purpose or a work of public utility and declared as such by the Chief Commissioner or acquired under the Land Acquisition Act. 1894, or any other enactment other than this Act, relating to acquisition of land for a public purpose.
3. It shall come into force at once.
4. The declaration of the Chief Commissioner under clause (c) of sub-section (2) shall be conclusive evidence that the land is held and occupied for a public purpose or a work of public utility.
(1) The following Act, in so far as they apply to areas to which this Act extends, are hereby repealed -
(i) The Punjab tenancy Act, 1887, as modified by Punjab Act No. 9 of 1939.
(ii) The Agra Tenancy Act 1901
(iii) The Punjab Tenants (Security of Tenure) Act, 1950,
(iv) The Punjab Land Revenue Act, 1887, in so far as its provisions are inconsistent with this Act,
(v) The U.P Land Revenue Act, 1901, in so far as its provisions are inconsistent with this Act, and
(vi) So much of any other law or of any rule having the force of law for the time being in force as is inconsistent with the provisions of this Act.
In this Act, unless the context otherwise requires,-
[(1) (Note: Subs. by s.3 of central Act, 4 of 1959) “agricultural year” or “fails year” means the year commencing on the 1st day of July and ending on the 30th day of June.]
(2) All words and expressions used to denote the possessor of any right, title or interest in land, whether the same be proprietary or otherwise, shall be deemed to include the predecessors and successors in right, title or interest of such possessor;
(3) “Charitable purpose” include relief of the poor, education, medical relief or the advancement of any other object of general public utility, but does not include a purpose which relates exclusively to religious teaching or worship;
(4) “Decree” has the meaning assigned to it in the Code of Civil Procedure, 1908;
[(5) (Note: Subs. by s.3 of Central Act, 4 of 1959) “Delhi town” means the areas which immediately before the establishment of the Municipal Corporation of Delhi were included in the limits of Delhi Municipality, Civil Station Notified Area, West Delhi Municipality and the Fort Notified Area];
[(6) (Note: Substituted by Act 1 of 1966) “Deputy Commissioner” includes -
(i) A Collector;
(ii) An Additional Collector;
(iii) A Revenue Assistant empowered by the Chief Commissioner by notification in the Official Gazette to discharge all or any of the functions of a Deputy Commissioner under this Act; and
(iv) An Assistant Collector of the first grade or class empowered as aforesaid;
(7) “Economic holding” is a holding which is not an un-economic holding;
(8) “Estate” means the area included under one entry in any of the registers prepared and maintained in any of the registers prepared and maintained under clause (a), (b) , (c) or (d) of section 31 of the Punjab Land revenue Act, 1887, or section 32 of the U.P. Land Revenue Act, 1901, and includes share in or of an estate;
(9) “Gaon sabha area fund” means the fund of the gaon sabha area constituted or established under section 150 of this Act;
(10) “Gaon sabha” and “gaon panchayat” mean the gaon sabha and the gaon panchayat established under section 150 and 151 respectively of this Act;
(11) “Gaon sabha area” means the gaon sabha area constituted under section 150 of this Act;
(11a) (Note: Ins. by s.3 of Delhi Act 16 of 1956) “holding” means—
(a) In respect of -
(i) Bhumidar or Asami; or
(ii) Tenant or sub- tenant under the Punjab Tenancy Act, 1887, or the Agra tenancy Act, 1901; or
(iii) Lessee under the Bhoodan Yagna Act, 1955, a parcel or parcels of land held under one tenure, lease, engagement or grant; and
(b) In respect of proprietors, a parcel or parcels of land held as sir or khud –kasht” ].
(12) “Improvement ” means with reference to a holding -
(i) A dwelling house erected on the holding by the tenure- holder for his own occupation or any other constructions erected or set up by him on the holding for purpose connected with agriculture, horticulture or animal husbandry which includes pisiculture and poultry farming;
(ii) Any work which adds materially to the value of the holding and is consistent with the purpose aforesaid, which if not executed on the holding, is either executed directly for its benefit or is, after execution, made directly beneficial to it; and subject to the foregoing provisions of this clause, includes -
(a) The construction of wells, water channels and other works for the supply or distribution of water for the purposes aforesaid;
(b) The construction of works for the drainage of land or for the protection of land from floods or from erosion or other damage by water;
(c) The reclaiming, clearing ,enclosing, leveling or terracing of land;
(d) The erection in the immediate vicinity of the holding otherwise than on the village site, of buildings required for the convenient or profitable use or occupation of the holding;
(e) The construction of tanks or other works for the storage of water for purposes aforesaid;
(f) The planting of trees and groves on the holding;
(g) The renewal or reconstruction of any of the foregoing works or such alterations therein or additions thereto, as are not of the nature of mere repairs:
Provide that such water channels, embankments, enclosures, temporary wells, or other works as are made by a tenure- holder in the ordinary course of his requirements for purposes aforesaid , shall not be deemed to be improvements;
[(12A) (Note: Ins. by s.3 of Central Act 4 of 1959) “Khudkasht” means land (other than Sir) cultivated by a proprietor either by himself or by servants or by hired labour, -
(a) At the commencement of this Act, or
(b) At any time during the period of five years immediately before the commencement of this Act, whether or not it was so cultivated at such commencement, provided that it has not at any time after having been so cultivate, been let out to a tenant];
(13) “Land” except in sections 23 and 24, means land held or occupied for purpose connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and includes -
(a) Buildings appurtenant thereto,
(b) Village abadis,
(c) Grovelands ,
(d) Lands for village pasture or land covered by water and used for growing singharas and other produce or land in the bed of a river and used for casual or occasional cultivation, but does not include -
Land occupied by building in belts or areas adjacent to Delhi town, which the Chief commissioner may by a notification in the official Gazette declare as an acquisition thereto ;
(14) “Legal representative” has the meaning assigned to it in the Code of Civil Procedure 1908;
(15) “New Delhi town” means the areas included in the limits of the New Delhi Municipality and Cantonment:
(16) “Prescribed” means as prescribed by rules made under this Act;
(17) “Proprietor” means as respects an estate a person owing, whether in trust or for his own benefit the estate and includes the heirs and successors – in – interest of proprietor;
(18) “Proprietor’s grove” means grove- land held or occupied by a proprietor as such;
(19) “Religious purpose” includes a purpose connected with religious worship, teaching or service or with the performance of religious rites;
[(19A) (Note: Substituted by Act 1 of 1966) “Revenue Assistant” includes any Assistant Collector of the first grade or class empowered by the Chief commissioner to perform all or any of the function of a Revenue Assistant under this Act;}
(20) “Standard acre” means a measure of area convertible into ordinary acres of any class of land according to the prescribed scale with reference to the quantity of yield and quality of soil;
(21) “State” means the [(Note: Subs. by A.O. (No.5) 1957 for the words “State of Delhi”) Union territory] of Delhi;
(22) “Uneconomic holding” means a holding of less than eight standard acres which, according to local conditions, is not sufficient to maintain a family unit consisting of a person, his minor children , his wife or her husband, as the case may be, and if the person himself is a minor, his father and mother;
(23) “Village” means any local area whether compact or otherwise recorded as a village in the revenue records of the Delhi State and includes any area which the Chief commissioner may, by a general or special order published in the official Gazette, declare to be a village;
(24) Words and expressions, grove, grove- holder, rent , cess Sir, (Note: The word “khudkasht” rep. by s.3 of Central Act 4 of 1959) rent – free grantee, landholder, ex-proprietary tenant, occupancy tenant, non-occupancy tenant, sub- tenant, (Note: The word “holding” rep. by s.3 of Delhi Act 16 of 1956) and crops or any other expressions, not defined in this Act and used in the Agra Tenancy Act, 1901, or the Punjab Tenancy Act, 1887, shall have the meaning assigned to them in the Agra Tenancy Act, 1901, or the Punjab tenancy Act, 1887, according as the context refers to the Shahdara or the remaining circles;
(25) Words and expressions , land revenue, (Note: The word “Revenue Assistant” rep. by s.3 of Central act 4 of 1959) and Tahsildar, not defined in this Act and used in the U.P Land Revenue Act, 1901, or the Punjab Revenue Act, 1887, shall have the meaning assigned to them in those Acts, as the case may be.
(1) There shall be , for the purpose of this Act, only one class of tenure- holder, that is to say, ‘Bhumidar’ and one class of sub – tenure, that is to say , ‘Asami’
(2) Tenure holder means a person who holds land directly under and is liable to pay land revenue for that land to the State, and sub- tenure holder is a person who holds land from a tenure- holder or Gaon Sabha and is liable to pay rent therefore to the tenure- holder or Gaon Sabha;
[(Note: Ins. by s.4 of Delhi Act of 1956) Provided that land given in exchange to a tenure holder or a sub tenure holder, as a result of consolidation of holdings, shall for the purposes of this Act be deemed to be land originally held by the tenure holder or the sub tenure holder as the case may be.]
Every person belonging to any of the following classes shall be a Bhumidhar and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumidhar by or under this Act, namely:
(a) A proprietor holding Sir or Khudkasht land (Note: The word “under his cultivation” rep. by s.4 of Central Act of 1959) a proprietor’s grove holder , an occupancy tenant under section 5 of the Punjab Tenancy Act, 1887, paying rent at revenue rates or a person holding land under Patta Dawami, [(Note: The words “or Istamrari” Ins. by s.4 of Central Act of 1959) or Ist amrari] with rights of transfer by sale , who are declared Bhumidhar on the commencement of this Act;
(b) Every class of tenants other than those referred to in clause (a) and sub-tenants who are declared Bhumidhars on the commencement of this Act; or
(c) Every person who, after the commencement of this Act, is admitted to land as Bhumidhar or who acquires Bhumidhar in rights under any provisions of this Act.
Every person belonging to any of the following classes shall be an Asami and shall have all the rights and be subject to all the liabilities conferred or imposed upon an Asami by or under this Act, namely -
(a) Every person who, in the agricultural year immediately before the commencement of this Act, occupied or held land—
(i) As a non- occupancy tenant of proprietor’s grove;
(ii) As a sub-tenant of tenant ‘s grove;
(iii) As a non-occupancy tenant of pasture land, or of land covered by water and used for the purpose of growing singhara and other produce or land in the bed of a river and used for casual or occasional cultivation;
(b) Every person who, in accordance with the provisions of [(Note: Substituted by Act 38 of 1965) section 36, or section 64A], becomes a lessee of land comprised in the tenure of a Bhumidhar referred to in that section;
(c) Every person who is admitted as a lessee of land referred to in sub-clause (iii) of clause (a) by the Gaon Sabha or a person authorised to do so under the provisions of this Act;
(d) Every person who is a tenant of Sir or a sub-tenant of an occupancy tenant under section 5 of the Punjab Tenancy Act, 1887, or of a Pattadar Dawami or Istamrari, with right of transfer by sale, who belongs to any of the categories of persons referred to in sub section (2) of section 10, and every person who is a sub-tenant of tenants referred to in clauses (a) , (b) and (c) of sub-section (1) of section 12 to whom the provision of sub-section (2) of section 10 applies; and
(e) Every person who acquires the rights of an Asami under any other provisions of this Act.
(1) All rights of an individual proprietor or proprietors pertaining to waste lands, grazing or collection of forest produce from forest or fish from fisheries lands of common utility, such as customary common pasture lands, cremation or burial grounds, abadi sites pathways, public wells, tanks and water channels, or Khalihans , whether covered by an existing contract between such proprietor or proprietors and any other person or not, shall with effect from the commencement of this Act be terminated in accordance with the provision of sub-section (2) and the said contracts, if any, shall become void with effect from such commencement:
[(Note: Ins. by s.5 of Delhi Act 16 of 1956) Provided that where such land was as a result of consolidation of holdings made available for use for any purposes other than those referred to in this sub-section, land kept aside in exchange thereof, as a result of such consolidation, shall for the purposes of this Act be deemed to be land originally meant for purposes referred to in this sub section].
Explanation – For the purposes of this sub-section-
(i) “Waste land” shall include cultivable and uncultivable waste area of the village (Note: The words “recorded as such on 1st July, 1950″ rep. by s.5 of Central Act 4 of 1959.)] [(Note: Ins. by s.5 of Delhi Act 16 of 1956) including any land in the bed of a river occupied or held by an Asami referred to in section 6 (a) (iii) of the Act ] [(Note: Subs. by s.5 of Central Act 4 of 1959 for the words “except the uncultivated areas included in the holdings of such proprietor or proprietors”) except the uncultivated areas -
(a) Included in the holdings of such proprietor or proprietors, or
(b) Used for purposes other than those mentioned in clause (13) of section 3, at any time before the 28th day of October, 1956, or
(c) Acquired by a bona fide purchaser for value at any time before the 28th day of October, 1956, for purpose other than those mentioned in clause (13) of section 3.
(ii) “Lands of common utility” shall include such lands as are recorded as such at the last settlement or have been or would have been customarily recorded as such on 1st July, 1950.]
(2) On the commencement of this Act, the Deputy Commissioner shall pass an order in respect of the proprietor or proprietors of each village either singly or collectively divesting the individual proprietor or proprietors of the rights mentioned in sub- section (1) and vesting those rights in the Goan Sabha (Note: The words “consisting of all the adults residents of the village” Rep. by s.5 of Central Act 4 of 1959) or in any person or authority appointed by the Chief Commissioner under section 161 with effect from the commencement of this Act and stating that a compensation equal in value to four times the amount of annual land revenue assessed at the last settlement for the cultivable and uncultivable waste area of the village (Note: The words “recorded as such on 1st July, 1950″ rep. by s.5 of Central Act 4 of 1959) shall be paid by the government to the proprietor or proprietors concerned.
[(Note: Ins. by s.5 of Delhi Act 16 of 1956) If no such assessment of land revenue was made at the last settlement the rate of land revenue applied at the last settlement for similar areas in any other village in the same assessment circle shall be taken to be the rate of land revenue applicable to such areas or failing this the rate of land revenue applicable to such areas shall be computed at 75 per cent of the land revenue assessed on the lowest class of soil in the village.]
(3) The amount of compensation shall be calculated separately for each village for the respective proprietor or proprietors in accordance with rules made under this Act and payments thereof shall be made in such number of annual installments, [(Note: Subs. by s.5 of Central Act 4 of 1959 for the words, “not exceeding two, as the Chief Commissioner may determine, commencing from the fasli year next following the commencement of this Act.”) not exceeding four, as the Chief Commissioner may determine, the first of which shall be paid
(a) In any case where such calculation has been made before the date on which the Delhi Land Reforms (Amendment) Act, 1959, receives the assent of the President, on the first day of fasli year next following such date; and
(b) In any other case, on the first day of the fasli year next following the date of such calculation.]
[(4) (Note: Ins. by s.5 of Central Act 4 of 1959) Where the amount of compensation is not paid by the due date specified in sub-section (3), such amount shall be paid with interest thereon at the rate of 21/2 percent. Per annum from the said date until payment.
(1) All private wells in or outside holdings, all tanks, groves and all buildings situate within the limits of an estate belonging to or help buildings situate within the limits of an estate belonging to or held by a proprietor tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such proprietor, tenant or person, as the case may be, on such terms and conditions as may be prescribed by the Chief Commissioner.
(2) [(Note: Ins. by s.6 of Delhi Act of 1956) Trees planted by a person other than a proprietor of land other than land comprised in his holding shall continue to belong to or be held by such person on such terms and conditions as may be prescribed by the Chief Commissioner].
The Chief Commissioner may make (Note: For Delhi Land Reforms Rules, 1954, see Notification No.F.3(16)/54-GA&R dated the 11th November, 1954, see Delhi State Gazette, Part V, dated 20-1-1955, p.27) rules for the purpose of carrying into effect the provisions of this chapter.
(1) Every tenant of Sir and sub-tenant of an occupancy tenant under section 5 of the Punjab Tenancy Act, 1887, or sub- tenant of a tenant holding land under a Patta Dawami or Istamrari, with right of transfer by sale, who in the fasli year immediately before the commencement of this Act, is recorded as a tenant of Sir or as a sub- tenant, shall be deemed to be a non occupancy tenant of land held by him at the rate of rent payable by him in the said year and the land held by such tenant and sub-tenant shall not for the purposes of section 11 be available to the Sir-holder, occupancy tenant under section 5 of the Punjab Tenancy Act, 1887, or to the Pattadar Dawami or Istamrari for acquisition to Bhumidhari rights.
(2) Nothing in sub-section (1) shall apply to a tenant of Sir or a sub-tenant of occupancy tenant under section 5 of the Punjab Tenancy Act or of the said Pattadar, if his land holder belongs to any of the following categories of persons—
(i) A women,
(ii) A minor,
(iii) A linatic,
(iv) An idiot,
(v) A person incapable of cultivation by reason of blindness or physical infirmity, or
(vii) A person under detention or imprisonment, on the commencement of this Act:
Provided that where a holding is held jointly by several landholders of whom one or more but not all are persons belonging to any of the above categories, nothing in sub-section (1) shall apply to the share of these persons in the holding and such share shall be available for the acquisition of Bhumidhari rights by these persons.
(1) Subject to the provisions of section 10, the Deputy Commissioner shall declare as Bhumidhars persons holding the following lands, namely:-
(a) Khud Kasht land or a proprietor’s grove in the tracts to which the Punjab tenancy Act, 1887, was applicable or Sir land or Khud Kasht land or a proprietor’s grove in the tracts to which the Agra Tenancy Act, 1901, was applicable;
(b) Land held by occupancy tenant under section 5 of the Punjab Tenancy Act, 1887, with right of transfer by sale; and
(c) Land held under Patta Dawami or Istamrari by tenants with right of transfer by sale.
[(2) (Note: Subs. by s.6 of Central Act 4 of 1959 for the words “the basis for the purpose of this section shall be the records of the fasli year immediately proceeding the commencement of this Act”) For the purposes of sub-section (1), the Deputy Commissioner shall take into consideration the entries in the revenue records which shall be presumed to be correct unless the contrary is proved]:
Provided that where land held as Khud Kasht by a proprietor belonging to any of the categories of persons referred to in sub-section (2) of section 10 has been before the commencement of this Act, let out to another person by or on behalf of such proprietor within six moths of the commencement of this Act and after giving an opportunity to the tenant of being heard, shall declare such land to be the proprietor’s Khud Kasht for purposes of this section.
(3) While making a declaration under clauses (b) and (c) of sub-section (1), the deputy Commissioner shall order the occupancy tenant or the Pattadar to deposit in Government Treasury an amount equal to four times the land revenue as ascertained in sub- section (4) for the area of which he is declared as Bhumidhar as compensation thereof . If he fails to deposit the amount within six months of the date of declaration, the same shall be realized as arrears of land revenue. The amount deposited or so realized shall be disbursed to the proprietor under the order of the Revenue Assistant.
(4) Every person , who is declared as Bhumidhar under this section, shall, with effect from the commencement of this Act, be liable to pay to the Government for land , held by him as such , on account of land revenue, an amount which shall proportionately correspond to the land revenue payable immediately before the commencement of this Act for the area in respect of which he is declared Bhumidhar, with due regard to the class of soil comprised therein, together with the cesses and local rates.
(1) Every sub tenant
(a) Of an occupancy tenant other than an occupancy tenant under section 5 of the Punjab Tenancy Act, 1887, or
(b) Of an ex-proprietary tenant, or of a non – occupancy tenant of over twelve years or less, or [(Note: Ins. by s.7 of Delhi Act 16 of 1956) of a rent free grantee or a grantee at a favorable rate of rent or]
(c) Of a tenant holding land under a Patta Dawami or Istamrari but without right of transfer by sale,
Who is recorded as such in the fasli year, before the commencement of this Act, shall be deemed to be a non- occupancy tenant of the land held by him and such land, for the purposes of section 13, shall not be available to the occupancy tenant, ex-proprietary tenant [(Note: Subs. by s.7 of Delhi Act 16 of 1956 for the words “non-occupancy tenants or Pattadar”) non-occupancy tenant, rent free grantee or a grantee at rate of rent or Pattadar] for acquisition of Bhumidhari rights.
(2) The provisions of sub-section (2) of section 10 shall apply, mutatis mutandis, to this section.
(1) On the commencement of this Act, the Deputy Commissioner shall also declare the following classes of tenants as Bhumidhars, who shall, with effect from the same date, have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidhars under this Act, namely:-
(a) A rent free grantee or a grantee at favorable rate of rent;
(b) An ex-proprietary tenant in Shahdara Circle;
(c) An occupancy tenant except those under section 5 of the Punjab Tenancy Act,1887;
(d) A non-occupancy tenant, who pays rent at revenue rates with or without Malikana;
(e) A tenant of Sir or a sub-tenant declared as non- occupancy tenant under section 10or 12;
(f) [(Note: Substituted by Act 1 of 1966) a tenant of or over twelve years in Shahdara Circle and a non occupancy tenant in any part of the Union territory of Delhi other than a non- occupancy tenant referred to in clause (d);]
(g) A tenant grove holder; and
(h) S holder of Patta Dawami or Istamrari without any right to sell.
(2) Every person who, after the commencement of this Act, is admitted to land as Bhumidhar or who acquires Bhumidhari rights under any provisions of this Act, shall have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidhars under this Act with effect from the date of admission or acquisition, as the case may be.
(1) Every person, declared as Bhumidhar under sub- section(1) of section 13, shall with effect from the commencement of this Act, cease to pay rent of the land in respect of this Act, cease to pay rent of the land in respect of which the declaration has been made to the proprietor or the landholder, as the case may be.
(2) Every such person, other than a sub- tenant deemed to be a non- occupancy tenant under section 10 or 12, shall
(a) Be liable for payment of such amount on account of land revenue for the holding or his share therein , as the case may be , as shall be one half of the amount of rent payable by him in the fasli year immediately preceding the commencement of this Act together with cesses and local rates of the area of which he is declared Bhumidhar from the commencement of this Act;
Provided that where half the amount of rent payable or deemed to be payable by him in the fasli year immediately preceding the commencement of this Act is less than the actual amount of land revenue payable immediately before the commencement of this Act for the holding or his share therein, the land revenue shall be the said actual amount of land revenue, and where the said half the amount of rent is greater than twice the actual amount of land revenue payable immediately before the commencement of this Act, the land revenue shall be twice the said actual amount of land revenue,
(b) Be liable to pay as compensation in the Government Treasury to the credit of the proprietor concerned an amount which shall in the case of tenants with permanent and heritable rights, i.e., in the case of tenants under clauses (b), (c) and (h) of sub-section (1) of section 13 , he eight times the amount of land revenue so determined and in the case of non- occupancy tenants, i.e., tenants, of Sir or tenants under clauses (a), (d), (f) and (g) of sub section (1) of section 13, be sixteen times the land revenue so determined.
(3) Every such person, being a sub-tenant who is declared as Bhumidhar under clause (e) of sub- section (1) of section 13 shall —
(a) Be liable for payment of such amount on account of land revenue for the holding or his share therein as is determined on the same principle as laid down in clause (a) of sub-section(2).
(b) And be liable to pay as compensation an amount equal to 20 times the land revenue so determined under clause (a) which shall be distributed between his immediate landholder and the proprietor in accordance with the following scale:–
| Tenants with a right of transfer, i.e. tenants holding land under clauses (b) & (c) of sub-section (1) of section 11. | Occupancy tenants with permanent and heritable rights, i.e., tenants under clauses (b), (c) (h) of sub-section (1) of section 13. | Non-occupancy tenants, i.e., tenants of Sir and tenants under clauses (a) (d), (f) and (g) of sub-section (1) of section 13. | |
| Compensation to the Proprietor | 4 | 5 | 16 |
| Compensation to the Landholder | 16 | 12 | 4 |
(4) The tenant or sub tenant declared as Bhumidhar under section 13 shall pay the compensation either in one lump sum within six months of his declaration, or if he does not elect to pay the compensation in one lump sum, in ten annual equal installments together with interest at such rate as may be prescribed, beginning from the commencement of this Act.
(5) In the case of default in the payment on the date fixed of any installment under sun- section (4), the amount shall be recovered as arrear of land revenue.
(6) If during the period of installment the land revenue is postponed, suspended or remitted for reasons of agricultural calamity in the area concerned, the payment of compensation shall also be postponed or suspended but in the case of remission of land revenue, the payment of compensation shall not be remitted but recovered in subsequent installments to be fixed by the Deputy Commissioner.
(7) The Revenue Assistant shall annually disburse the installment of the compensation paid by the Bhumidhar under sub- section (4) or direct the payment of the amount deposited as compensation by the Bhumidar in one lumpsum under sub section (2) or (3) of this section to the proprietor or to the proprietor and landholder or their successor- in – interest, as the case may be , in accordance with the rules on the subject. The annual disbursements made to a proprietor and landholder in cases under sub section (3) , where payments are made by installments, shall be in the same proportion as the total compensations payable to them bear to each other,
(8) In this section the expression “rent deemed to be payable” means -
(i) Where the rent is paid in kind, or is based on an estimate or appraisement of standing crops or on rates varying with the crops sown or partly in one of such ways and partly in another or other of such ways, the rend shall be deemed to be an amount, which the average value of the landlord’s share of the crops grown in the preceding five years, subject to such rules as may be prescribed and
(ii) Where there was no rent payable or fixed for the holding or area concerned or part thereof, or where it was held rent-free or at favorable rate of rent, the rent for the said area shall be calculated at the prevailing village rate of rent.
(iii) [(Note: Ins. by s.8 of Delhi Act 16 of 1956) Where it is not possible to ascertain the crops grown in the preceding five years, the rent shall be calculated at the prevailing village rate of rent].
(9) Every person, who, after the commencement of this Act, is admitted to land as Bhumidhar or who acquired Bhumidhari rights under any provisions of this Act , shall pay the same amount of land revenue as was payable for the land immediately before his admission to or acquisition of Bhumidhari rights in the land, together with cesses and local rates :
Provided that if the last Bhumidhar, [(Note: Subs. by s.8 of Delhi Act 16 of 1956 for the words, “when”) whom] he has replaced was [(Note: Subs. by s.8 of Delhi Act 16 of 1956 for the words “making payment of compensation by installment”) to pay compensation] , he shall resume and complete the payments in the same manner:
Provided further that in any other case, i.e., where the last Bhumidhar had already paid up the total amount of compensation to the proprietor, he shall not be called upon to pay any compensation.
(1) A mortgage in possession of an estate or share therein shall cease to have any right in such estate or share, if the proprietor mortgagor deposits the mortgage money together with interest thereon in Government Treasury and applies for redemption of the mortgage in the proper court, within a period of nine months from the commencement of this Act.
(2) [(Note: Subs. by s.7 of Central Act 4 of 1959 for the original sub-section) If the proprietor mortgagor deposits the amount and applies for redemption as provided in sub section (1), he shall be declared as Bhumidhar in respect of the mortgaged area which was under the personal cultivation of the mortgage on the date of such application for redemption, and if any part of the mortgaged area was on the said date let out to a tenant , such tenant shall be declared as Bhumidhar in respect of the area that was so let out to him.]
(3) Where the proprietor mortgagor fails to take action under sub section (1) within the time specified therein, the mortgage of the area mortgaged with possession, (Note: The words “whether or not it was the Sir or Khudkasht of the mortgagor on the date of the mortgage” rep. by s.7 of Central Act 4 of 1959) shall be declared as the Bhumidhar of so much of the area mortgaged as is under the personal cultivation of the mortgage.
(4) Where the area mortgaged or part thereof is let out to tenants, the mortgage shall be declared as the Bhumidhar of the part under his personal cultivation and the tenants shall be declared as Bhumidhars of their respective areas let out to them.
(5) Subject to section 11 or 13 the provisions of sub section (1) to (4) shall apply mutatis mutandis to mortgages with possession where the mortgagors were -
(a) Occupancy tenants under section 5 of the Punjab Tenancy Act, 1887,
(b) Tenants holding land on Patta Dawami or Istamrari, with right of transfer by sale , or
(c) Exproprietary tenants, occupancy tenants other than those under section 5 of the Punjab Tenancy Act, 1887, grove holders or tenants holding land on Patta dawami or Istamrari without right of transfer by sale.
Notwithstanding anything contained in any other law for the time being in force or in any mortgage deed or other instrument or agreement, where a proprietor mortgagor fails to apply for the redemption of his mortgage within the time specified in sub section (1)of section 15 and the mortgage and tenants, if any, in respect of the mortgaged property or any portion thereof are declared Bhumidhars in accordance with the provisions of sub section (3) or sub section (4) as the case may be, of that section, the following consequences shall follow, namely:-
(1) The proprietor mortgagor shall be absolutely debarred of his right to redeem the mortgage;
(2) The mortgage and the tenants, if any; in respect of the mortgaged property or any portion thereof, who have been declared as Bhumidhars as aforesaid, shall pay to the proprietor mortgagor compensation which shall be determined as follows:
(a) The amount of compensation payable by the mortgage and each of the tenants, if any, shall be determined separately in accordance with the provisions laid down in clauses (a) and (b) of sub section (2) of section 14 for determining the amount of compensation, payable by a Bhumidhar;
(b) The amount of compensation as determined under clause (a) payable by each of the tenant shall be paid by him to the proprietor mortgagor through court either in one lump sum or in installments in the manner laid down in sub section (4) of section 14 ;
(c) The total amount due from the proprietor mortgagor to the mortgage under the mortgage deed on the date of the commencement of this Act shall then be determined in the prescribed manner after deducting the receipts if any , by the mortgage from the mortgaged property;
(d) If the amount of compensation payable by the mortgage to the proprietor mortgagor to the proprietor mortgagor is greater than the amount determined under clause (c) the mortgage shall pay through court to the proprietor mortgagor as compensation the difference between the two in one lump sum; [(Note: Ins. by s.9 of delhi Act 16 of 1956) within six months from the date of the order] and where the amount of compensation payable by the mortgage is less than the amount determined under clause
(c), the entire mortgage money with interest , if any thereon, shall be deemed to have been fully satisfied by the enjoyment of the usufruct of the mortgaged property and the proprietor mortgagor shall not be required to pay anything under the mortgage deed to the mortgage.
(3) Where a tenant mortgagor, referred to in sub section (5) of section 15 , fails to apply for redemption within the period specified in sub section(1) and of clause (a) of sub section(2) shall apply mutatis mutandis and the amount of compensation payable by the mortgage and his tenants, if any, in respect of mortgaged land in possession of each to the proprietor shall be determined separately, in accordance with the provisions of clauses (a) and (b) of sub section (2) of section 14 . the compensation so determined shall be paid as follows:-
(i) Where the mortgagor tenant is an occupancy tenant under section 5 of the Punjab Tenancy Act, 1887, or a Pattadar Dawami or Istamrari with right of transfer by sale, the amount due from the mortgagor to the mortgage under the mortgage shall also be determined in accordance with clause (c) of sub section (2) . The mortgage or his tenants shall each first pay out of the total compensation determined above, an amount equal to four times the land revenue payable for the land in his possession immediately before the commencement of this Act, to the proprietor, If the balance of the compensation payable by the mortgage and his tenants, is greater than the amount due to the mortgage from the mortgagor under the mortgage, the difference shall be paid by the mortgage and his tenants, as compensation to the mortgagor tenant [(Note: Ins. by s.9 of Delhi Act 16 of 1956) in one lump sum within six months from the date of the order, first by the mortgage’s tenant upto the extent of the amount left over , if any] If it is less, the entire mortgage money with interest shall be deemed to have been fully satisfied by the enjoyment of the usufruct and nothing shall be payable to the mortgage in adjustment of the mortgage money.
(ii) Where the mortgagor tenant is a tenant, other than an occupancy tenant under section 5 of the Punjab Tenancy Act, 1887, or a Pattadar Dawami or Istamrari with right of transfer by sale, the entire amount of compensation payable by the mortgage and his tenants, if any, shall be paid direct to the proprietor of the mortgagor tenant and the mortgage money , shall be deemed to have been fully satisfied by the enjoyment of the usufruct.
Where tenant is declared as Bhumidhar in respect of any part of mortgaged area that has been redeemed under sub- section (1) of section 15, the compensation payable by such tenant to the mortgagor shall be determined and paid in the manner provided in clause (2) or clause (3) of section 16 according as such tenant is declared a Bhumidhar under sub- section (2) or sub- section(5) of section 15.
Notwithstanding any contract made or anything done or permitted to be done, on or after the first day of July, 1950 by or on behalf of a proprietor or a tenant , in respect of any land in the State , the rent payable therefore by the tenant in the fasli year immediately preceding the commencement of this Act shall be deemed to be an amount equal to the rent payable by the tenant or his predecessor – in – title on the date aforesaid and any reduction or remission made therein after the said date otherwise than in pursuance of a decree or order of a court shall not be taken into account:
Provided that where the rent reduced in pursuance of any decree or order aforesaid is less than the amount computed at the prevailing village rate of rent the rent payable shall be an amount so computed.
(1) Any contract or agreement made between a proprietor and any person on or after the 1st day of July, 1950, which has the effect, directly or indirectly of defeating the provisions of this Act shall be and is hereby declared null and void.
(2) Notwithstanding any decree or order where a tenant of Sir or sub tenant of tenants referred to in sub section (1) of section 10 or sub-tenant of tenants referred to in section 12 or a non-occupancy tenant referred to in clause (f) or sub- section (1) of section 13 was evicted from land after 1st July 1950 , on any ground other than for arrears of rent, the tenant or the sub- tenant shall be entitled to regain possession thereof on his making an application in this behalf to the Revenue Assistant [(Note: Ins. by s.9 of Central Act 4 of 1959) and, shall on regaining possession have the same rights as he would have had but for such eviction decree of order].
Provided that the land is not in the possession of any other tenant in the fasli year immediately before the commencement of this Act.
(3) (Note: Ins. by ibid) Nothing in this section shall affect the rights of a proprietor in any land held or occupied at the commencement of this Act for purposes other than those mentioned in clause(13) of section 3.
A Bhumidhar shall pay to Government all the cesses, local rates and sayar proportionately to his land revenue, in respect of his holding.
Any contract or agreement between the proprietor and any person compounding, releasing or reducing the payment of cesses, local rates or sayar after the 1st of July, 1950, shall be void.
All proceedings whether of the first instance, appeal or revision, of the nature specified in Schedule II, pending in any court for hearing on the commencement of this Act shall be stayed.
All proceedings whether of the first instance , appeal or revision, of the nature specified in Schedule II, pending in any court for hearing on the commencement of this Act and all proceedings (except in so far as they relate to the realisation, otherwise than by ejectment of the judgement debtor, of cost of compensation awarded in any suit or proceedings) upon any decree or order, unless it is a decree or order which become final before the commencement of this Act, but is not decree which may be executed by ejectment of the judgement debtor passed in any such suit or proceedings previous to the commencement of this Act, shall be stayed.
A Bhumidhar or Asami shall , subject to the provisions of this Act, have the right to the exclusive possession of all land comprised in his respective holding and to use land for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming and make any improvement.
(1) A Bhumidhar or Asami shall not be entitled to use his holding or part thereof for industrial purposes, other than those immediately connected with any of the purposes referred to in section 22, unless the land lies within the belt declared for the purpose by the Chief Commissioner by a notification in the official Gazette:
Provided that the Chief Commissioner may , on application presented to the Deputy Commissioner in the prescribed manner, sanction the use of any holding or part thereof by a Bhumidhar for industrial purposes even though it does not lie within such a belt.
(2) Where permission for industrial purposes is accorded, the provisions of this Chapter relating to devolution shall cease to apply to the Bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.
(1) Whenever any land held by a Bhumidhar which is used for industrial purposes has become land used for purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, the Deputy Commissioner on being so satisfied, may with the sanction of the Chief Commissioner make a declaration to that effect and thereupon the Bhumidhar shall, as respects the land, be subject to the provisions relating to devolution in this chapter.
(2) Upon the grant of the declaration under sub- section (1) in respect of any land any person other than the Bhumidhar in possession of the land shall -
(a) If he holds it under any contract or lese which is inconsistent with any of the provisions of this chapter, be deemed to be an occupant liable to ejectment under section 84.
(b) If he holds it under any contract or lease which is not inconsistent with any of the provisions of this chapter, be entitled to the rights in the land determined in accordance with the provisions thereof.
(3) Any contract or lease referred to in sub-clause (a) of sub section (2) which in inconsistent with the provisions of this chapter shall, to the extent of the inconsistency, become void with effect from the date of declaration:
Provided that any mortgage with possession existing on any such land shall, to the extent of the amount due and secured on such land , be deemed to have been substituted by a simple mortgage carrying such rate of interest as may be prescribed.
A copy of every sanction given or declaration made under section 23 or 24 shall be forwarded by the Deputy Commissioner to the Sub-Registrar concerned, who shall , notwithstanding anything contained in the Indian Registration Act, 1908, register the same free of cost in the manner prescribed.
No Bhumidhar or Asami shall make an improvement on, or detrimental to, any land which is not included in the holding to be benefited thereby (Note: Subs. by s.10 of Central Act 4 of 1959, for the words “except with the written permission of the land holder of such land lord the Gaon Panchayat, as the case may be.”) except
(a) With the written permission of the landholder of such land or the Gaon Panchayat, as the case may be, or
(b) Where such permission is not given within the within the prescribed period, with the written permission of the Revenue Assistant granted in accordance with rules made under this Act this behalf.
(1) Where a Bhumidhar or Asami has made an improvement on land and such land is sold in lieu of arrears of land revenue or in execution of a decree for payment of money or the Bhumidhar or Asami is ejected from such land, the purchaser or the landholder, as the case may be, shall become the owner of the improvement but the Bhumidhar or Asami shall be entitled to other benefit of the improvement in respect of the land remaining in his possession to the same extent and in the same manner as it had hitherto benefited thereby.
(2) Where the Bhumidhar or Asami has made an improvement on land which remains in his possession after a portion of his land has been sold in lieu of arrears of land revenue or in execution of a decree or order of Court for payment of money or after he has been ejected from a portion of his land, the purchaser or the landholder, as the case may be, shall be entitled to the benefit of such improvement in respect of land which does not remain in the possession of the Bhumidhar or Asami to the same extent and in the same manner as it had hitherto benefited thereby.
(1) An Asami who has made any improvement with the [(Note: Subs. by s.11 of Central Act 4 of 1959, for the words “written consent of the Gaon Panchayat or the land holder”.) written permission of the landholder the Gaon Panchayat or the Revenue Assistant ], as the case may be, shall be entitled to compensation—
(a) When a decree or order for his ejectment is passed on any ground other than his making any transfer in contravention of the provisions of this Act or on the ground of his using the land for any purpose other than agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming;
(b) When he has been wrongfully deprived of possession by the Gaon Panchayat or his landholder, as the case may be, and has not recovered possession of his holding; or
(c) When he vacates the holding on the expiry of his lease or on becoming liable to ejectment on any ground mentioned in clause (a)
(2) No compensation shall be payable to an Asami where the improvement was made without the written [(Note: Subs. by s.11 of Central Act 4 of 1959 for the word “Consent”) permission] as aforesaid.
In determining the amount of compensation for improvement regard shall be had to –
(a) The cost of the work,
(b) The condition of the work and the period during which it is likely to add materially to the value of the holding,
(c) The amount by which the quantity or value of the produce of the holding is increased by the work.
(d) The length of time during which the Asami claiming compensation has had the benefit of the improvement, and
(e) The age of the trees, their class and the income likely to accrue from them.
(1) In any suit or other proceeding for ejectment of an Asami, the Court shall, where compensation for improvement is payable , before passing a decree or order for ejectment, assess the amount of compensation payable to the Asami under section 29.
(2) If the amount of compensation exceeds the amount recoverable from the Asami as arrears of rent , whether decreed or not, on account of the holding, together with costs, if any, the decree of order for ejectment shall be conditional on the payment by the landholder or the Gaon Sabha of the balance due to the Asami within such time as the Court may direct.
(3) If the amount of compensation dies not exceed the amount recoverable from the Asami as specified in sub-section (2), the same shall be deemed to have been satisfied on his ejectment, and the balance shall, subject to the Asami rights to the value of the standing crops and trees be recoverable from him.
The interest of a Bhumidhar shall be transferable subject to the conditions hereinafter contained.
The interest of an Asami shall not be transferable except as expressly permitted by this Act.
[(1) (Note: Renumbered by Act 38 of 1965)] No Bhumidhar shall have the right to transfer by sale or gift or otherwise any land to any person, other than a religious or charitable institution or any person in charge of any such Bhoodan movement, as the Chief Commissioner may, by notification in the Official Gazette, specify , where as a result of the transfer, the transferor shall be left with less than eight standard acres in the Union Territory of Delhi :
Provided that the Chief Commissioner may exempt from the operation of this section, the transfer of any land made before the 1st day of December, 1958, if the land covered by such transfer does not exceed on e acre in area and is used or intended to be used for purposes other than those mentioned in clause (13) of section 3.
(2) (Note: Inserted by Act 38 of 1965) Nothing contained in sub section (1) shall preclude the transfer of land by a Bhumidhar who holds less than eight standard acres of land, if such transfer is of the entire land held by him;
Provided that such Bhumidhar may transfer a part of such land to any religious or charitable institution or other person referred to in sub section (1)
Explanation – For the purposes of this section, a religious or charitable institution shall mean an institution established for a religious purpose or a charitable purpose, as the case may be.
No Bhumidhar shall have the right to mortgage any land belonging to him as such where possession of the mortgaged land is transferred or is agreed to be transferred in future to the mortgage as security for the money advanced or to be advanced.
No Bhumidhar or Asami shall let, for any period whatsoever, any land comprised in his holding except in the cases provided for in section 36.
Explanation.- Any arrangement whereby a person is entitled to a right merely to share in the produce grown on the land in consideration of such person assisting or participating with the tenure holder in the actual performance of agricultural operations is not a “lease”.
(1) A Bhumidhar who is -
(a) An unmarried woman, or if married, divorced or separated from her husband , or a widow ;
(b) A minor whose father has died;
(c) A lunatic or an idiot;
(d) A person incapable of cultivating by reason of blindness or physical infirmity:
(e) Prosecuting studies in a recognize institution and does not exceed 25 years in age;
(f) In the armed forces of the Indian union; (Note: Omitted by Act 38 of 1965).
(g) [(Note: Inserted by Act 38 of 1965) Dependent for assistance in agricultural operation on a person serving in the armed forces of the Union and certified by the Deputy Commissioner to be so dependent; or]
(h) (Note: Relettered by Act 38 of 1965 for ‘g’) Under detention or imprisonment; may let the whole or any part of his holding;
Provided that in the case of a holding held jointly by more persons than one where but one or more of them, but not all, are subject to the disabilities mentioned in [(Note: Substituted by Act of 38 of 1965) clauses (a) to (h) , the person or persons may let out his or their share in the holding.
(2) Where any share of a holding has been let out under the proviso to sub-section (1), the Court may, on the application of the Asami or any tenure – holder, determine the share of the lessor in the holding and partition the same.
(3) A Bhumidhar, who holds only less than 8 standard acres in the State, may where he does not join a co-operative farm lease the whole of his holding to an Asami;
Provided that the lease is for not less than 5 years.
Provided further that the Bhumidhar shall not be entitled to resume it except for self-cultivation or for breach of terms of the lease.
Notwithstanding anything contained in the Transfer of Property Act, 1882, or the Indian Registration Act, 1908, a lease for a term exceeding one year or from year to year may be made either by a registered instrument or in the prescribed manner.
A lease which fails merely to comply with the provisions of section 37 shall not , for purposes of [(Note: Substituted by Act 38 of 1965) section 42], be deemed to be a transfer made in contravention of the provisions of this Act.
When a holding has been let in accordance with the provisions of section 36, the successor in interest of the Bhumidhar shall be bound by the terms of the lease in so far as they are not consistent with the provision of this Act.
(1) Subject to the provisions of section 33, Bhumidhar may exchange lands held by him as such -
(a) For lands held by any other Bhumidhar as such or
(b) For lands for the time being vested in a Gaon Sabha or local authority or in Government:
Provided that no such exchange shall be made except with permission of the Deputy Commissioner, who will refuse permission if the difference between the area of the land given in exchange and of land received in exchange in terms of standard acres is more than ten per cent. Of the area in standard acres of the land which is smaller in area.
(2) Where the Deputy Commissioner permits exchange , he shall also order the relevant annual register to be corrected accordingly.
(3) On exchange made in accordance with the sub section (1), the parties to such exchange shall have the same rights in the land received in exchange as they had in the land given in exchange.
Nothing in section 40 shall affect the amount of the land revenue assessed on or payable for land so exchanged.
(1) Where a transfer of any holding or part thereof has been made in contravention of the provisions of [(Note: Substituted by Act 38 of 1965 for ‘section 33′) this chapter by a Bhumidhar or Asami] , [(Note: Substituted by Act 38 of 1965 for “the transferee”) the transferee and every person who may have obtained possession of such holding or part] shall, notwithstanding anything in any law, be liable possession of such holding or part] shall , notwithstanding anything in any law, be liable to ejectment from such holding or part on the suit of the [(Note: Subsituted by Act 38 of 1965 for “Gaon Sabha”) Gaon Sabha, or the landholder as the may be], which shall thereupon become vacant land; but nothing in this section shall prejudice the right of the transferor to realize the whole or portion of the price remaining unpaid, or the right of any other person other than the transferee to proceed against such holding or land in enforcement of any claim thereto .
(2) To every suit for ejectment under this section the transferor shall be made a party.
[(3) (Note: Substituted by Act 38 of 1965) Notwithstanding anything contained in sub section (1), the Revenue Assistant also may on receiving information or on his own motion, take action to eject the transferee and every person who have may obtain possession aforesaid, after following such procedure as may be prescribed.
Any transfer of any holding or part thereof made by a Bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan, and existing or future debt or the performance of an engagement which may give wise to a pecuniary liability, shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale to the provisions of section 33 and 42 shall apply.
When a Bhumidhar other than one referred to in section 36 has let out his holding or any part thereof, the lessee will, notwithstanding anything contained in any law or contract or document of lease become and be deemed to be a purchaser and the provisions of section 33 and 42 shall mutatis mutandis apply.
(1) Any transfer made by or on behalf of a Bhumidhar or Asami in contravention of the provision of this Chapter shall be void.
(2) (Note: Ins. by s.i3 of Central Act 4 of 1959) Nothing in sub- section (1) shall apply to any transfer which has been exempted by the Chief Commissioner [(Note: Substituted by Act 38 of 1965) under the proviso to sub- section (I) of section 33.
Upon ejectment [(Note: Subsituted by Act 38 of 1965) under section 42], all the rights and interests of the Bhumidhar or Asami in the holding or in any improvements made therein or to get compensation for such improvements shall be extinguished.
(1) A Bhumidhar may by will bequeath his holding or any part there of except as provided in sub- section.(2).
(2) No Bhumidhar entitled to any holding or part in the right of a widow, mother step- mother, father’s father, father’ mother, unmarried daughter, or unmarried sister, may bequeath by will such holding or part.
(3) Every will made under provisions of sub-section (1) shall , notwithstanding anything contained any law, custom or usage, be in writing and attested by two persons.
No Asami shall have the right to bequeath by will his holding or part thereof.
Subject to the provisions of section 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of the succession given below :
(a) Male lineal descendants in the male line of the descent :
Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive:
Provided further that the son or sons of a predeceased on how lowsoever shall inherit the share which would have devolved upon the deceased if he had been then alive:
(b) Widow
(c) Father
(d) Mother, being a widow;
(e) Step mother, being a widow;
(f) Father’s father
(g) Father’s mother, being a widow;
(h) Widow of a male lineal descendant in the male line of descent;
(i) Brother, being the son of same father as the deceased;
(k) Unmarried sister;
(l) Brother’s son, the brother having been a son of the same father as the deceased;
(m) Father’s father’s son;
(n) Brother’s son’s son;
(o) Father’s father’s son’s son;
(p) Daughter’s son.
(1) When a Bhumidhar or Asami, who has after the commencement of this Act inherited an interest in any holding as a widow, mother, step-mother, father’s mother, unmarried daughter or unmarried sister, [(Note: Subs by s.10 of Delhi Act 16 of 1956 for the words “dies, marries, abandons or surrenders such holding or part there of, the holding or the part”) dies or marries or the Asami abandons or surrenders such holding, it] shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of section 50) of the last male Bhumidhar or Asami other than one who inherited as a father’s father.
(2) When a Bhumidhar who has before the commencement of this Act, inherited an interest in any holding as a widow, mother, step- mother, father-mother, father’s mother, daughter, sister or step- sister
(a) Dies and such Bhumidhar was on the date a proprietor of the land comprised in the holding and -
(i) She was in accordance with the personal law applicable to her entitle to a life estate only in the holding, the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provision of section 50) of the last male proprietor or tenant aforesaid; and if
(ii) She was in accordance with the personal law applicable to her entitled to the holding absolutely the holding shall devolve in accordance with the table mentioned in section 53;
(b) [(Note: Subs. by s.10 of Delhi Act 16 of 1956, for the words “dies, marries, abandons or surrenders such holding”) dies or marries] and such Bhumidhar on the date immediately before the sad date held the holding otherwise than as a proprietor, the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provision of the section 50) of the last male tenant other than one who inherited as a father’s father.
(3) The provision of sub section (1) shall muttdis mutandis apply to an Asami who inherited the holding before the commencement of this Act.
(4) Nothing in sub- section (1) shall apply to a person, succeeding to an interest in any holding under the provision of section 53.
When a Bhumidhar or Asami, who has , whether before or after the commencement of this Act, inherited an interest in a holding as a father’s father [(Note: Subs. by s.11 of Delhi Act 16 of 1956, for the words “dies, marries, abandons or surrenders such holding or part thereof, such holding or part”) dies or the Asami abandons or surrenders such holding, it] shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of section 50) of the last male Bhumidhar or Asami from whom such father’s father inherited the interest in the holding.
When a Bhumidhar or Asami, other than one mentioned in section 50 or 51, who is a woman dies, her interest in the holding shall devolve in accordance with the order of succession given below:
(a) Male lineal descendants in the male line of descent:
Provided that no member of this class shall inherit of any male descendant between him and the deceased is alive:
Provided further that the son or sons of a predeceased son how lowsoever shall inherit the share which would have developed upon the deceased if he had been then alive;
(b) Husband
(c) Widow of male lineal descendant in the male line of descent;
(d) Daughter;
(e) Daughter’s son;
(f) Husband’s brother;
(g) Husband brother’s son
In the case of a co- widow or a co-tenure or co-sub-tenure holder, who dies living no heir entitled to succeed under the provision of this Act, the interest in such holding shall pass by survivorship.
(1) A Bhumidhar may sue for partition of his holding.
(2) To every such suit the Gaon Sabha concerned shall be made a party.
One suit may be instituted for the partition of more than one holding provided that all the parties to the suit are jointly interested in each of the holdings.
(1) Except as provided in sub-section (3) whenever in a suit for partition, the Court finds -
(a) That the aggregate area of holding or holdings to be partition does not exceed eight standard acres, or
(b) That the partition will result in a holding of less than eight standard acres,
The Court shall in the cases falling under clause (a) instead of proceeding to divide the holding or holdings direct the sale of the same and a distribution of the proceeds thereof, and incases falling under clause (b) either proceed to divide the holding in accordance with such principles as may be prescribed or in the alternative dismiss the suit.
(2) The rules framed under sub-section (1) shall prescribe the circumstances in which compensation may be awarded to a co-tenure holder to land under provisions of section 73.
(3) In the case of a co-tenure – holder to whom the provisions of section 36 apply and such tenure holder has let out his share or part thereof in the holding, the Court shall divide the holding by separating the share aforesaid, but in respect on the remainder of the holding the Court will proceed in accordance with the provisions of this section, if applicable.
Where a Court has under section 57, ordered a sale of the holding or holdings, it shall a order a valuation of the same to be made in such manner as may be prescribed and shall offer to sell the same at the price so ascertained to the co-tenure holders in such order of preference as may be prescribed.
If two or more co-tenure holders having an equal preferential right severally ask for leave to buy, the Court shall order the sale of the same to such one of them as offers to pay the highest price above the price ascertained under section 58.
If no shareholder offers to buy at or above the price ascertained under section 58, the Court shall order the sale of the same to the share – holder who offers to pay the highest price.
Save as hereinbefore provided, when any holding is ordered to be sold in pursuance of any order made under section 57, the Court shall follow such procedure as may be prescribed.
An Asami may surrender the whole of his holding but not any part thereof by giving a notice in writing to the Gaon Sabha or the land holder, as the case may be, intimating his intention to do so and by giving up possession thereof.
Notwithstanding the surrender, unless the Asami applies or gives notice in writing before the first day of April, he shall be able to pay the rent for the holding for the agricultural year next following the date of surrender.
(1) Where an Asami has not used his holding for a purpose connected with agriculture, horticulture, or animal husbandry, which includes pisciculture and poultry farming, for two consecutive agricultural years, the Gaon Sabha or the land-holder may apply to the Tahsildar for a notice to such Asami to show cause why the holding be not treated as abandoned.
(2) The application shall contain such particulars as may be prescribed.
(3) If the Tahsildar finds that the application has been duly made he shall cause to be served on the Asami or publish in the manner prescribed a notice in the from to be prescribed requiring him to appear and show cause on a date to be fixed why the holding be not held as abandoned.
(4) If the Asami does not appear in answer to the notice or appears but does not contest it, the Tahasildar shall declare the holding as abandoned and thereupon , except as provided in section 51 and 52, the holding shall be deemed to be vacant land.
Where a Bhumidhar, being minor, lunatic or idiot, has not used his holding for a purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, for two consecutive agricultural years, the Gaon Sabha may, notwithstanding anything contained in any law, after notice to the Bhumidhar and his guardian and after such enquiry as may be prescribed, after the expirty of the two years aforesaid, admit on behalf of the Bhumidhar, any person as Asami to the land comprised in the holding inthe manner and upon the terms as may be prescribed and all the provisions of this Act applicable to an Asami shall apply to him as if he had been admitted to the land by the Bhumidhar personally.
(1) Where on the basis of any information received by him or otherwise the Deputy Commissioner has reason to believe that any land included in the holding of a Bhumidhar or Asami has not been used for two consecutive agricultural years immediately preceding for a purpose connected with agriculture, horticulture or animal husbandry which includes or poultry farming, he may , unless the land lies within the belt referred to in section 23 or unless sanction under that section has been obtained in respect thereof, notice require -
(i) The Bhumidhar to appear and show cause why the land may not be let out for any such purpose as aforesaid to any person;
(ii) The Asami to appear and show cause why his interest may not be extinguished and the land restored to the Bhumidhar or the Gaon Sabha, as the case may be.
(2) The notice under sub-section (1) shall state the grounds for believing that the land has not been used for any purpose referred to in that sub- section and such other particulars as may be prescribed.
(3) If the Bhumidhar or the Asami appears and satisfies the Deputy Commissioner—
(a) That the land was used for a purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming during the period mentioned in sub-section (1);
(b) That he had sufficient cause for not using it as aforesaid; or
(c) That he shall, within one year next following the date of service of the notice under sub-section (1), use the land for any such purpose as aforesaid unless in the meantime the land is included within any belt referred to in section 23 or the use of the land for industrial purposes is sanctioned under that section, the Deputy Commissioner shall, in a case falling under clause (a) or clause (b), discharge the notice forthwith and in a case falling under clause (c), postpone further proceedings to a date one year after the date of service of the said notice.
(4) On the date fixed under sub-section (3) or any other date to which the proceeding may be adjourned, the Deputy Commissioner, if he is satisfied that the land has been used for any such purpose as aforesaid during the said period of one year or that the land has been included within the belt referred to in section 23 or that sanction as aforesaid has been obtained in respect thereof, discharge the notice of if he is not so satisfied, unless for reasons to be recorded in writing he allows further time, he shall -
(i) If the land is that of the Bhumidhar, lease it on behalf of the Bhumidhar to any person for a period of five years in such manner and on such terms and conditions as may be prescribed;
(ii) If the land is that of the Asami of the Bhumidhar, terminate the lease and restore the land to the Bhumidhar subject to the condition that the Bhumidhar shall undertake to cultivate the land within six months from the date it is restored to him; and if the Bhumidhar does not give such undertaking or fails, after giving such undertaking, to cultivate the land within the said period, the Deputy commissioner may lease the land on behalf of the Bhumidhar, to any person for a period of five years in such manner and on such terms and conditions as may be prescribed; and
(iii) If the land is that of the Asami of Goan Sabha, terminate the lease and restore the land to the Gaon Sabha;
Provided that the restoration of the land of the Asami under this sub—section shall be without prejudice to any right of the Bhumidhar or Gaon Sabha, as the case may be, to recover any rent due from the Asami.
(5) If the Bhumidhar or Asami appears in response to the notice under sub-section (1) but does not undertake to use the land as provided in clause (c) of sub section (3) or if the Bhumidhar or Asami does not appear in response to such notice and the Deputy Commissioner, after such inquiry as he may consider necessary, is satisfied that the Bhumidhar or Asami has failed to use the land as aforesaid during the period referred to in sub-section (1), he shall , unless for reasons to be recorded in writing he decides to discharge the notice, take action under clause (I) or clause (ii) or, as the case may be, clause (iii) of sub section (4).
(6) On the expiry of the period of any lease of land under sub-section (4) or sub section (5), if the Deputy Commissioner, after making such inquiry as he thinks fit, is satisfied -
(a) That the land has been properly cultivated, he may declare the lessee to be Bhumidhar in respect of such land subject to the payment by him to the original Bhumidhar of compensation equal to twenty times the land revenue then payable for such land either in one lump sum or in such installments together with interest as may be prescribed and upon such declaration the interest of the original Bhumidhar shall be extinguished;
(b) That the land has not been properly cultivated by the lessee, the Deputy Commissioner shall terminate the lease and may lease the land on behalf of the Bhumidhar, to another person for a period of five years in such manner and on such terms and conditions as may be prescribed and on the expiry of the period of such lease, the provisions of this sub-section shall apply:
Provided that no lease shall be terminated unless the lessee has been given reasonable opportunity of being heard.
(7) Nothing contained in this section shall apply to Bhumidhar to whom the provisions of section 65 apply.
A Gaon Sabha or a landholder who enters upon a holding in contravention of the provisions of section 64 shall be deemed to have ejected the Asami otherwise than in accordance with the provisions of this Act.
The interest of Bhumidhar in his holding or any part thereof shall be extinguished
(a) When he dies interstate leaving no heir entitled to inherit in accordance with the provisions of this Act,
(b) When the land comprised in the holding has been acquired under any law for the time being in force relating to the acquisition of land, (Note: The word “or” rep. by s.12 of Delhi Act of 1956).
(bb) [(Note: Inserted by Act of 38 of 1965) When a declaration in respect of such holding or part is made under clause (a) of sub section (6), of section 65 A.
(c) When he has been ejected in accordance with the provisions of this Act, or
(d) When he has been deprived of possession and his right to recover possession is barred by limitation .
Subject to the provisions of section 51 and 52, the interest of an Asami in holding or any part thereof shall be extinguished
(a) When he dies leaving no heir entitled to inherit in accordance with the provisions of this Act,
(b) When the holding has been declared as abandoned in accordance with the provisions of section 64,
(c) When he surrenders his holdings. (Note: The word “or part thereof” rep. by s.13 of Delhi Act of 1956)
(d) When the land comprised in the holding has been acquired under any law for the time being in force relating to the acquisition of land,
[(dd) (Note: Inserted by Act 38 of 1965) Where his lease is terminated under clause (ii) or clause (iii) of sub- section (4), or clause (b) of sub section (6), of section 65A.
(e) When he has been ejected in accordance with the provisions of this Act or
(f) When he has been deprived of possession and his right to recover possession is barred by limitation.
(1) The extinction of the right , title and interest of a Bhumidhar shall operate to extinguish the interest of any Asami holding under him.
Notwithstanding the provisions of section 75, whenever the interest of an Asami is extinguished under sub- section (1)m the Goun Sabha shall admit the Asami as an Asami to some other vacant land of such valuation computed at prevailing village rate of rent applicable to the land as shall be equal to the valuation of the land on which his right has determined.
The interest of an Asami in his holding shall determine when his interest and the interest of the Bhumidhar in the whole of the holding become vested in one person in the same right.
When the interest of a Bhumidhar or Asami is extinguished he shall vacate his holding and he shall, except in cases where his interest has extinguished under or in accordance with the provisions of any law for the time being in force relating to the acquisition of land, have in respect of removal of his standing crops and any construction existing on the holding the same right as he would have upon ejectment under the provisions of this Act.
The Gaon Sabha shall be entitled to take possession of land comprised in holding or part thereof if -
(a) The land was held by Bhumidhar and his interest in such land is extinguished under [(Note: Subs. by s.14 of Delhi Act 16 of 1956, for the word “clause (a) of clause (a) or clause (c) of] section 67 , or
(b) The land, being land falling in any of the clauses mentioned in sub- clause (iii) of clause (a) of section 6, was held by an Asami and the Asami has been ejected or his interest therein have otherwise extinguished under provisions of this Act.
The Gaon Sabha shall have the right to admit any person as Bhumidhar to any land, other than land falling in any of the classes mentioned in sub- clause (iii) of clause (a) of section 6, where -
(a) The land is vacant land ,
(b) The land is vested in the Gaon Sabha under section 72 or under any other provision of this Act.
(c) The land has come into the possession of Gaon Sabha under section 72 or under any other provision of this Act,
(d) The land is let in accordance with sub- section (4) of section 74.
(1) The Gaon Sabha shall have the right to admit any person as Asami to any land falling in any of the classes mentioned in sub- clause (iii) of clause (a) of section 6 where -
(a) The land is vacant land,
(b) The land is vested in the Gaon Sabha , or
(c) The land has come into the possession of the Gaon Sabha under section 72 or under any other provision of this Act.
(2) In order to encourage the reclamation of waste land, the Gaon Sabha shall also have the right to admit any person as Asami on a five years lease to any land which forms part of the cultivable or uncultivable waste area of the village, not included in holdings, which are vested in the Gaon Sabha under section 7, but which do not fall in any of the classes mentioned in sub-clause (iii) if clause (a) of section 6.
(3) The Asami shall have the right to hold the land for the period of five years at a rate of rent, which shall not be more than 50 per cent. Of the prevailing rate of rent of the village, payable for the land.
(4) At the end of five years, the Gaon Sabha shall report to the Revenue Assistant the extent to which reclamation has been made. The Revenue Assistant shall, after necessary enquiry and after hearing the Asami , either order the termination of the lease and his ejectment if there has been no reclamation or extend his lease for another period of two years. If, however, the land has been duly reclaimed during the period of five years or the extended period, the Revenue Assistant shall direct the Gaon Sabha to admit the Asami as Bhumidhar under section 73. The Asami on his admission as Bhumidhar shall be liable to pay such land revenue as shall be equal to 50 percent of the rent calculated at the prevailing village rate of rent together with cesses and local rates, but he shall not be liable to pay any compensation.
(1) In admitting any person as Bhumidhar or Asami under section 73 or 74, Gaon Sabha shall subject to the rules framed or any order made by Court in a suit for partition or in any other suit, observe the following order of preference
(a) (Note: Inserted by Act 38 of 1965) Persons in the armed forces of the Union and the dependents of such of those persons as are killed in action, special preference being given in the case of persons decorated for gallantry.
(aa) (Note: Reentered by Act 38 of 1965 for “a”) A co- operative farm established under this Act holding land within l the jurisdiction of the Gaon Sabha to enable it to possess a suitable area of agricultural or cultivable land,
(b) A group of landless labourers or a landless labourer residing in the village,
(c) A Bhumidhar residing in the village, who is holding land less than eight standard acres in area in the State,
(d) An Asami holding land than eight standard acres in area in the village, and
(e) Any other person:
Provided that the land allotted to a co-operative farm under [(Note: Substituted by Act 38 of 1965 for “clause a”) clause (aa) ] shall, if the registration of such farm is cancelled within two years of the allotment, revert upon such cancellation to the Gaon Sabha, and any person holding or retaining possession of such land shall be deemed to be a person occupying it without title liable to ejectment under clause (b) of [(Note: Substituted by Act 38 of 1965) sub section (1)section 84].
Provided further that in the cases to which clauses (b), (c), (d) and (e) apply the area to which the person concerned is admitted together with the total area of any other tenure held by him shall in no case exceed 8 standard acres:
Provided also that in the case of reclamation of waste land under sub-section (2) of section 74, where available, preference in the first instance shall be given to either the co-operative farm or a tenure holder having established provision for mechanised farming in the Gaon Sabha area, and the Gaon Sabha in that case shall be entitled to let out in excess of eight standard acres with the previous sanction in writing of the Chief Commissioner.
[(2) (Note: Substituted by Act 38 of 1965) The Deputy Commissioner may, on his own motion, and shall , on the application of any person aggrieved by an order of the Gaon Sabha passed under subsection (1), enquire in other prescribed manner and if he is satisfied that the Gaon Sabha has acted with substantial irregularity or otherwise than in accordance with the provisions of this Act, he may cancel such order.
(3) Where the deputy Commissioner cancels an order relating to admission of a person as Bhumidhar or Asami, the right, title and interest of such person or any person claiming through him shall cease in the land to which the order relates and shall revert to the Gaon Sabha and any person holding or retaining possession of such land after such cancellation shall be deemed to be a trespasser in respect of such land and shall be liable to ejectment in the manner prescribed.”]
Subject to the provisions of section 33, 42 [(Note: Substituted by Act 38d 1965) 81,85,86,86 A and 87], no Bhumidhar shall be liable to ejectment.
[(1) (Note: Renumbered by Act 38 of 1965) An Asami shall be liable to ejectment from his holding on the suit of the land- holder or Gaon Sabha, as the case may be , on the following grounds only
(a) Those mentioned in [(Note: Substituted by Act 38 of 1965) sections 42, 69,74,81,)
(b) That he belongs to any of the classes mentioned in sub-clauses (I), (ii) and (iii) of clause (a)or in clause (c) of section 6 and that he holds the land from year to year or for a period which has expired or will expire before the end of the current agricultural year.
(c) That he belongs to the class mentioned in clause (b) or (d) of section 6 and that
(i) That land holder wishes to bring the under his personal cultivation and in cases where the lease is for a fixed term such term has expired, or
(ii) The disability was determined, or
(d) That there is an unsatisfied decree of arrears of rent outstanding against him and such decree can be executed by ejectment.
[(2) (Note: Inserted by Act 38 of 1965) Notwithstanding anything contained in sub-section (1), a Bhumidhar referred to in clause (f) of sub-section (1) of section 36 may, on retirement or discharge from the armed forces of the Union or on being sect on Reserve, within six months of such retirement or discharge or of his being sent on Reserve, apply to the Deputy Commissioner for ejectment of the Asami of his land, and the Deputy Commissioner may , after notice to the Asami and subject to such conditions as he may think fit to impose, cause possession of the land to be delivered to such Bhumidhar as soon as possible or, where there are standing crops on such land , within one month of the harvesting of such crops.”]
(1) Where in execution of any decree (other than a decree under section 84) or order for delivery of possession the Court is satisfied that any ungathered crops or trees which are the property of the judgment debtor exist on the land to be delivered, the Court executing the decree or order shall, notwithstanding anything in the Code of Civil Procedure, 1908, proceed as follows:
(a) If the amount due from the judgment debtor is equal to or greater than the value of such crops or trees, the Court shall deliver the possession of the land with the crops and the trees to the Gaon Sabha or the land holder, as the case may be, and all rights of the judgment debtor in or upon such crops or trees shall pass to the decree holder.
(b) If the amount due from the judgment debtor is less than the value of such crops or trees and—
(i) The Gaon Sabha or the land holder pays the difference between such amount and the value to the judgment debtor, the Court shall deliver the possession of the holding the Gaon Sabha or land holder concerned and all rights, of the judgment debtor in such crops or trees shall pass to decree holder;
(ii) The Gaon Sabha or the land holder does not pay such difference , the judgment debtor shall have a right of tending, gathering or removing such crops or trees of fruits of such trees until such crops or trees have been gathered and removed or die or are cut down, as the case may be, paying such compensation for the use and occupation of land as the Court may fix.
(2) The Court executing the decree or the order of ejectment may on the application of any party determine the value of crops or trees and the compensation payable by the judgment debtor under the provisions of clause (b) of sub section (1).
If a suit for ejectment of an Asami, to whom any of the sub clauses (I) and (ii) of clause (a) or clause (b) or (d) of section 6 applies, is not instituted or a decree obtained in such suit not executed within the period of limitation prescribed therefore , the Asami shall, on the expiry of the period, become a Bhumidhar of the land held by him.
Where an asami has been ejected form his holding on the ground mentioned in clause (c) (I) of [(Note: Substituted by Act 38 of 1965) sub-section (1) of section 77)], the land holder shall not grant a lease thereof any person within 2 years of the date of ejectment.
[(1) (Note: Renumbered by Act 38 of 1965)] A Bhumidhar or an Asami shall be liable to ejectment on the suit of the Gaon Sabha or the land holder, as the case may be, for using land for any purpose other than a purpose connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and also pay [(Note: Substituted by Act 38 of 1965 for “damage”) damages] equivalent to the cost of works which may be required to render the land capable of use for the said purposes.
[(2) (Note: Inserted by Act 38 of 1985) Notwithstanding anything contained in sub section (1) the Revenue Assistant also may, on receiving information or on his own motion, eject the Bhumidhar or Asami, as the case may be, and also recover the damages referred to in sub-section (1), after following such procedure as may be prescribed”]
(1) A decree for ejectment under Section 81 may direct the ejectment of Bhumidhar or Asami form the whole or part of the holding as the Court, having regard to the circumstances of the case , may direct.
(2) The decree shall further direct that, if the Bhumidhar or Asami repairs the damage within three months next after the decree, the same shall not be executed except in respect of costs.
Notwithstanding anything in section 81, the Gaon Sabha or the land holder may, in lieu of suing for ejectment sue
(a) For injunction with or without compensation, or
(b) For the repair of the waste or damage caused to the holding.
[(1) (Note: Renumbered by Act 38 of 1965) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and
(a) Where the land forms part of the holding of a Bhumidhar or Asami without the consent of such Bhumidhar or Asami, or
(b) Where the land does not form part of the holding of a Bhumidhar or Asami without the consent of the Gaon Sabha.
Shall be liable to ejectment on the suit of the Bhumidhar, Asami or Gaon Sabha, as the case may be and shall also be liable to pay damages.
[(2) (Note: Inserted by Act 38 of 1965) Where any person against whom a decree for ejectment from any land has been executed in pursuance of a suit under sub-section (1) re-enters or attempts to re-enter upon such land otherwise than under authority of law , he shall be presumed to have done so with intent to intimidate or annoy the person in possession or the Gaon Sabha, as the case may be, within the meaning of section 441 of the Indian Penal Code.
(iii) the Gaon Sabha.
The Act envisaged only these three classes of persons who would possess right in agricultural land after the commencement of the Act. Proprietors as such having ceased to exist could not therefore, institute a suit for possession.
(ii) Section 84 of the Delhi Land Reforms Act does not govern the proceedings before the Civil Court. It does not take into consideration the acts of the Civil Court delivering possession to a party in execution of its order or decree. Such a matter would be determined by the provisions of the Civil Procedure Code itself and not by Section 84 of the Act.
If a suit is not brought under [(Note: Substituted by Act 38 of 1965) Sub-section(1) of section 84] or a decree obtained in any such suit is not executed within the period of limitation provided for the filing of the suit or the execution of the decree, the person taking or retaining possession shall -
(i) Where the land forms part of the holding of a Bhumidhar, become a Bhumidhar thereof;
(ii) Where the land forms part of the holding of an Asami on behalf of the Gaon Sabha, become an Asami thereof;
(iii) In any case to which the provisions of clause (b) of section 84 apply, become a Bhumidhar or Asami as if he had been admitted to the possession of the land by the Gaon Sabha.
[(Note: Inserted by Act 38 of 1965) “Provided that if in the revenue records of the fails year ending on the 30th June, 1954,the land referred to in clause (iii) was not included in the holding of the person taking or retaining possession or his predecessor-in interest, then , notwithstanding the expiry of the aforesaid period of limitation for such suit or decree, the suit may be filed or the decree obtained in such suit may be executed within a period of three years from the date of passing of the Delhi Land Reforms (Amendment) Act, 1965.]
Provided further that the benefit of the extension of the period of limitation under the proceeding proviso shall not be availed fin any case where a person who has become a Bhumidhar in respect of any land under clause (iii) has transferred such land to another person for valuable consideration before 10the May, 1965.
(1) Any person, who becomes a Bhumidhar under the provisions of clause (I) of section 85, may notwithstanding anything hereinbefore contained, be ejected form the land at the instance of the Gaon Sabha within such period as may be prescribed.
(2) Where a Bhumidhar has been ejected, his rights in the holding shall be extinguished and the land shall become vacant land.
Notwithstanding anything contained in section 84, 85 and 86, the Revenue Assistant also may, on receiving information or on his own motion, eject any person who is liable to be eject form any land on a suit of the Gaon Sabha under any of those section, after following such procedure as may be prescribed”.
Any person who, on or after the first day of July, 1950, has been admitted as a tenure or grove holder of, or being proprietor has brought under his own cultivation or has planted a grove upon, land which was recorded as or was customary common pasture land, cremation or burial ground, tank , pathway or Khalian, shall be liable, on the suit of the Gaon Sabha to ejectment from the land , on payment of such compensation, if any, as may be prescribed.
An Asami shall be liable to pay such rent as may be agreed upon between him and his land-holder or the Gaon sabha, as the case may be, subject to the condition that it shall not exceed one fifth of the produce of the land or (Note: Subs. by s.14 of central Act 4 of 1959, for the words “if the words “if the rent is paid in cash, its equivalent value”) four times the land revenue payable for the land held by the Asami, whichever is less.
The rent payable by an Asami shall not be varied except in the manner and to the extent provided under this Act.
(1) Where any person is admitted to or permitted to retain possession of any land as an Asami thereof by any person having a right to so admit or permit him, but no rent is fixed, the Asami or the land – holder may, at any time during the period of occupation or within three years after the expiry of this period, instituted a suit for fixation of rent.
(2) In any such suit the plaintiff may, subject to the law of limitation, ask for a decree for the arrears of rent.
(3) The rent decreed in any such suit, shall be the rent payable in the years previous to the year of admission, permission or accrual of asami rights, or if no rent was payable in such year, it shall be fixed at the prevailing village rate of rent applicable to the land, subject to the maximum laid down in section 88.
The produce of every holding in the cultivation of an Asami and the fruit of every tree in such holding shall be deemed to be hypothecated for the rent payable by him in respect of the holding and, until the rent has been paid or otherwise satisfied, no other claim on such produce or fruit shall be enforced by sale thereof in execution of a decree or order of a Court.
An Asami may pay his rent either direct or by postal money order , but the acceptance by the Gaon Sabha or the land holder of a sum so paid shall not debar the Gaon Sabha or the land holder , as the case may be, form proving that the amount due for any year or installment was different from the amount paid.
(2) Where rent is remitted by money order, the payee’s receipt or the endorsement of refusal on the money order duly stamped by the post office shall be admissible in evidence without formal proof and shall, until the contrary is proved, be presumed to record the receipt or refusal thereof.
Where the rent is payable in kind or on estimate or appraisement of the standing crop or on rates varying with crops sown or partly in one of such ways and partly in another or other of such ways , the Revenue Assistant may at his own instance and shall at the instance of the Gaon Sabha or the person by or to whom rent is payable commute the rent in the manner prescribed.
In the absence of contract to the contrary the rent shall be payable in two equal installments on the fifteenth day of November and the fifteenth day of may of the agricultural year in respect of which the rent is due.
(1) The Gaon Sabha or the land- holder, as the case may be, may apply for an order for payment of the arrears and in default for the ejectment of an Asami from his holding , if the Asami has been in arrears for the whole or part of the rent of the holding for a period of more than three months.
(2) The application shall be signed and verified in the manner prescribed for plaints in the Code of Civil Procedure,1908.
(1) On receipt of the application mentioned in section 95, the Court of the Tahsildar having jurisdiction shall cause to be served on the Asami a notice requiring him to pay the amount of arrears together with the cost of the application within thirty days from the date of the service thereof or to show cause, within a period to be specified, why an order directing him to be ejected from the holding be not passed against him.
(2) If within the period allowed the Asami pays to the applicant or deposits in the Court the amount mentioned in the notice, the Court shall enter full satisfaction and dismiss the application and the amount deposited shall be paid to the applicant.
(1) If the Asami , who has been duly served under section 96, fails to pay or deposit the said amount in the Court and also does not file any objection the Tahsildar shall make any order for the payment of the amount and in default for the ejectment of the Asami from the holding.
(2) If the Asami appears and contests the claim, the application shall be treated as a suit and, if necessary, the Court shall order the applicant to pay any additional court – fee payable according to the law relating to suit for arrears of rent or ejectment .
(3) If the applicant fails to pay the court fee within the time so allowed, the application shall be rejected.
(4) If the court fee has been duly paid, the Court shall, where the Asami pleads that the applicant is not the land holder or that he himself is the Bhumidhar of the holding or any part thereof, transfer the case to the civil court having jurisdiction and the civil court shall thereupon proceed to hear and determine it as if it were a suit for arrears and ejectment instituted in such Court.
(5) The rejection of an application under sub section (3) shall not preclude the applicant from filing a suit for recovery of arrears of rent.
(1) Notwithstanding anything contained in the Code of Civil Procedure 1908. a decree or order for the payment of arrears of rent against an Asami may, in addition to any other mode of execution , be executed in default of payment of the amount decreed by ejectment of the Asami from the holding:
Provided that no order for delivery of possession shall be passed unless notice has been served upon the judgment debtor to show cause on a date to be fixed why the order be not passed.
(2) If within one month after the delivery of possession the tenant deposits the full amount in respect of which he has been ejected, the ejectment order shall be cancelled and possession restored forthwith to the tenant.
An Asami shall , from the date rent becomes due, be liable to pay interest at 61/4 per cent. Per annum on any installment remaining unpaid.
Arrear of rent due in respect of property vesting in the Government or in respect of area attached for arrears of land revenue may be recovered as arrear of land revenue.
(1) It shall be lawful for the Court hearing a suit for recovery of arrears of rent , where it is satisfied that the area of the holding was substantially decreased by dilution or otherwise , or the produce thereof was substantially diminished by drought, hail, deposit of sand or other calamity during the period for which the arrear is claimed, to allow such remission from the rent as may appear to it to be just:
Provided that no such remission shall be deemed to very the rent payable by the Asami otherwise than for the period in respect of which it is made.
(2) Where a court allows remission under sub section (1), the Chief Commissioner or any authority empowered by him in this behalf shall order consequential remissions in the land revenue in accordance with such principles as may be prescribed.
Any person to whom any sum is due on account of irrigation dues under section 47 of the Northern Indian Canal and Drainage Act, 1873, may sue for the recovery of such sum.
Any tree existing on the boundary of the holding of a tenant on the commencement of this Act and not belonging to such tenant shall with effect from the commencement of this Act belong to and vest in the Bhumidhars of the holding adjoining the said boundary in equal shares.
Explanation – Where the holding belongs jointly to two or more Bhumidhars, all of them shall for the purposes of this section collectively count as one.
Notwithstanding anything to the contrary in section 42 of the Specific Relief Act, 1877, the Gaon Sabha may institute a suit against any person claiming to be entitled to any right in any land for the declaration of the right of such person in such land, and the Court in its discretion may make a declaration of the [(Note: Subs. by s.15 of Delhi Act 16 of 1956, for the words “right f such person, and the Gaon Sabha need not in such suit ask for any further relief.”) right of such persons:]
Provided that no Court shall make any such declaration where the plaintiff , being able to seek further relief than a mere declaration of title, omits to do so.
The Chief Commissioner may make (Note: For the Delhi Land Reforms Rules, 1954, See Notification No. F.3 (16)/54 GA&R dated the 11th November, 1954 Delhi State Gazette, Part V, dated 20-1-1955, p.27) rules for the purpose of carrying into effect the provisions of this Chapter.
(1)The aggregate of the land revenue payable by all the Bhumidhars in respect of land situate in any village shall be deemed to be the land revenue assessed on that village.
(2) The Land revenue assessed on any village shall be the first charge on all land in the entire village and on the rents, profits or produce thereof.
(1) All land held by a Bhumidhar as such and wherever situate is liable to the payment of land revenue to the Government, except such land as may be exempted wholly or partially from such liability under the provisions of section 122 or under any law for the time being in force.
(2) Land revenue may be assessed on land notwithstanding that such land revenue , by reason of its having been assigned, released, compounded for or redeemed, is not payable to the Government.
(3) No length of occupation of any land nor any grant made before the commencement of this Act by the Government or the landholder shall release such land from the liability to pay land revenue .
(1) All Bhumidhars in any village shall be jointly and severally responsible to the Government for the payment of the land revenue for the time being assessed thereon, and all persons succeeding whether by devolution or otherwise, to the interests of such Bhumidhars shall be responsible for all arrears of land revenue due at the time of their succession.
(2) Notwithstanding the provisions of sub-section (1) a Bhumidhar shall not be compelled to pay any arrear of land revenue other than an arrear in respect of his holding to which he is wholly or in part entitled, unless the Chief Commissioner has, by notification in the official Gazette, declared that the provisions of sub-section (1) shall apply to any specific area.
(1) Subject to the provisions of this Act, every person , who is a Bhumidhar, shall be liable to pay to the Government for land , held by him as such, on account of land revenue -
(a) If he is declared a Bhumidhar under section 11, the amount of land revenue , cesses and local rates as given in that section;
(b) If he becomes a Bhumidhar under section 13, the amount of land revenue, cesses and local rates as given in section 14;
(c) If he is declared a Bhumidhar under sub section (4) of section 74 , the amount of land revenue, cesses and local rates as given in that section.
(2) The payment of land revenue, cesses and local rates shall take effect from the commencement of this Act except in cases of admission or acquisitions of Bhumidhari rights after the commencement of this Act, in which case, it shall take effect from the date of admission or acquisition.
(1) The Chief commissioner may prescribe the date or dates from which and the installments in which the land revenue shall be payable by Bhumidhars referred to in section 109.
(2) The land revenue or any installment thereof not paid on or before the due date becomes an arrear of land revenue and the persons liable for it become defaulters.
(1) Notwithstanding anything contained in this Act, the land revenue payable by a Bhumidhar shall not be varied until the next settlement, except on the ground of increase or decrease in the area of his holding or in the productivity of the land comprised therein by fluvial action or other natural causes.
Provided that the Chief Commissioner may at any time, by a notification in the official Gazette, direct that any urban area that may have developed in any par of the State be taken out of the scope of the revenue settlement for levy of special urban rates in place of land revenue.
(2) Whenever the land revenue is enhanced or abated under sub-section (1), the Chief Commissioner may order the enhancement or abatement of the rent payable by an Asami in occupation of such land.
The Chief Commissioner may, at any time after the commencement of this Act, direct a settlement (hereinafter referred to as first settlement) of the land revenue of the whole or part of the State.
The Chief Commissioner may , at any time after a period of thirty years from the first settlement, direct a fresh settlement (hereinafter referred to as revision settlement) of land revenue of the whole or part of the State;
Provided that no enhancement of revenue shall take effect before the expiration of the settlement for the time being in force.
As soon as may be after the Chief Commissioner has decided that the whole or part of the State should be brought under a fresh settlement, he shall so notify in the official Gazette and thereupon the whole or part of the State shall be held to be under settlement, until a notification declaring settlement operations thereto be closed is published.
The Chief Commissioner shall appoint a Settlement Officer to be in charge of the State or part thereof and as many Assistant Settlement Officers as he may deem fit; and such officers shall ,during the settlement operations, exercise the powers conferred upon by this Act.
Where the State or any part thereof is under settlement, the Chief Commissioner may, by a notification in the official Gazette, transfer to the Settlement Officer the duty of maintaining the maps and the field books and preparing the annual register and the Settlement Officer shall thereupon possess all the powers conferred on the Deputy Commissioner under Chapter III of the U.P Land Revenue Act , 1901; or the Punjab Land Revenue Act, 1887, as the case may be.
A settlement shall remain in force for a period of thirty years:
Provided that in the case of any precarious tracts or alluvial areas the Chief Commissioner may direct that the settlement shall, for such tracts or areas as may be specified, remain in force for any period less than thirty years:
Provided further that when in the opinion of the Chief Commissioner a revision settlement is inexpedient or when such settlement has for any cause been delayed, the Chief Commissioner may extend the term of the settlement for the time being in force by such period as he deems fit.
Where the period of settlement fixed in the case of any precarious tract or alluvial area is less than 30 years and such period expires or is about to expire, the Deputy commissioner shall assess and settle such tracts and areas in such manner as may be prescribed.
(1) For the purposes of making settlements or revising assessments under section 118 the Deputy Commissioner shall have all the powers of a Settlement Officer.
(2) No settlement, revision of assessment made under section 118 or suspension of revenue made under section 127 shall be final until it has been sanctioned by the Chief Commissioner.
When the State or a part thereof has been brought under settlement, the Settlement Officer or an Assistant Settlement Officer shall inspect every village under settlement and shall, in such manner and on such principles as may be prescribed, divide the State or the part into soil classes and assessment circles.
Settlement Officer shall enquire into the case of all land released conditionally or for a term from the payment of land revenue , and shall assess such land if it appears to him that the conditions have been transgressed or the term has expired.
(1) Any person claiming land free of revenue not recorded as revenue free shall be bound to prove his title to hold such land free of revenue.
(2) If he proves his tiled to the satisfaction of the Settlement Officer, the case shall be reported to the Chief Commissioner whose orders shall be final.
(3) If the title is not so proved , the Settlement Officer shall proceed to assess the land and to make the settlement of it with the persons entitled to the land.
The land which shall ordinarily be assessed to land revenue shall, except as hereinafter excepted, be the aggregate holdings area of Bhumidhars in a village in the year of record.
Exceptions:-
(1) Lands occupied by building which are not improvements:
(2) All lands of common utility such as customary common pasture lands, cremation or burial grounds, abadi sites and pathways etc., that are vested in Gaon sabha under section 7;and
(3) Such other lands as may be prescribed.
(1) In assessing the land revenue payable for a holding in an assessment circle, the Settlement Officer shall consider the estimated average surplus produce of such holding remaining after deducting the ordinary expenses of cultivation as ascertained or estimated in such manner as may be prescribed, The land revenue shall be such percentage of surplus produce as may be fixed by the Chief Commissioner on the recommendations of the Settlement Officer. (Note: Rep. by A.O. 1957).
(2) The percentage of land revenue to the surplus produce shall vary according to a graduated scale prescribed by the chief commissioner being largest on holding with the highest surplus produce and smallest on holdings with lowest surplus produce.
The Settlement Officer shall publish his proposals in such manner as may be prescribed as soon as he has completed the assessment of each village. He shall consider objections, if any, that may be preferred and shall them submit the proposals together with the objections, if any and such orders as he may have passed to the prescribed authority, who shall forward them to the Chief Commissioner with his comments.
After considering the proposals and the comments of the prescribed authority, the Chief Commissioner shall pass such orders as he deems fit. The orders of the Chief Commissioner shall not be called in question in any Court.
(1) Notwithstanding anything contained in this Act the Chief Commissioner may , on the occurrence of an agricultural calamity affecting the crops of any village or part thereof, remit or suspend for any period the whole or any part of the land revenue of any holding affected by such calamity.
(2) Whenever the Chief Commissioner takes action under sub section (1) he may remit or suspend the whole or any part of the rent payable by an Asami in occupation of such land.
(3) Where the payment of rent has been suspended under sub-section (2), the period of suspension shall be excluded in computing limitation allowed for a suit for the recovery of rent.
An order passed under section 127 shall not be questioned in a civil or revenue court, and no suit or application shall lie for the recovery of any sum the payment of which has been remitted under section 127, or, during the period of suspension, of any sum the payment of which has been suspended under the said section.
Notwithstanding anything contained in this Act or in any other enactment for the time being in force, the Chief Commissioner, if he is satisfied that there has been a substantial decline in the price of agricultural produce which is likely to continue for sometime, may, by a notification in the official Gazette, direct a revision of settlement in any area.
After the issue of notification under section 129, the Chief Commissioner may appoint in such area any officer with the powers of a Settlement Officer subject to such restrictions and conditions as he may think fit but not so as to enable him to enhance the land revenue thereof.
The Deputy Commissioner shall enquire annually into the case of all lands released conditionally for a term from the payment of land revenue.
If the condition is broken, he shall report the case to the Chief Commissioner for orders; and if the period has expired or if the grantee, where the grant is for the life of the grantee, has died, he shall assess the land and report his proceedings to the Chief Commissioner for sanction.
The chief Commissioner may make such arrangements and employ such agency for the collection of land revenue as he may deem fit.
(1) The Chief Commissioner may by general or special order published in the Official Gazette charge the Gaon Sabha constituted under section 150 of this Act with the duty of collecting and realizing the land revenue and such other dues as may be prescribed, for and on behalf of the Government, in the area for which the Gaon Sabha is established or any part thereof.
(2) Where the Gaon Sabha has been so charged, it shall be the duty of the Gaon Panchayat concerned to collect and realize, in accordance with the provisions of this Act or the rules made there under, the land revenue and the dues aforesaid payable to the Government form time in respect of the land comprised in its area.
Where a Gaon Sabha has been charged with the duty of collecting and realizing the land revenue or other dues under section 133 the following consequence will follow:-
(a) Every Bhumidhar shall, without prejudice to the provisions of section 108, be liable to the Gaon Panchayat for the payment of the land revenue or other dues for the time payable by the Bhumidhars,
(b) The amount of land revenue or other dues collected or realized by any member (including Pradhan or Up- Pradhan) or the Gaon Panchayat or any member of the Gaon Sabha and not paid to the Government may, without prejudice to his liability under any other law for the time being in force, be realized as arrears of land revenue from him or his property in the hands of his legal representatives, and
(c) The gaon Panchayat shall be paid a remuneration at such rate as may be prescribed on the collections made by it after the amount of land revenue or other dues collected have been credited to the prescribed fund.
A statement of account certified by the Tahsildar shall, for the purposes of this Chapter, be conclusive evidence of the existence of the arrears of land revenue or its amount and of the person who is the defaulter:
Provided that in any village in respect of which an order under section 133 has been made, such statement, may, in respect of any individual defaulter, be certified by the Gaon Panchayat.
An arrear of land revenue may be recovered by any one or more of the following processes:
(a) By serving a writ of demand or a citation to appear on any defaulter,
(b) By arrest and detention of his person,
(c) By attachment and sale of his moveable property including produce,
(d) By attachment of the holding in respect of which the arrear is due,
(e) By sale of the holding in respect of which the arrear is due or
(f) By attachment and sale of other immovable property of the defaulter.
(1) As soon as arrear of land revenue has become due a writ of demand may be issued by the Tahsildar on the defaulter calling upon him to appear and deposit the arrear due on a date to be specified.
(2) In addition to or in lieu of a writ of demand the Tahsildar may issue a citation against the defaulter to appear and deposit the arrear due on a date to be specified.
(3) Where a Gaon Sabha has been charged with the duty of collecting and realizing revenue under section 133, the Chief Commissioner may authorise a Gaon Panchayat, by a general or special order published in the official Gazette, to issue a writ of demand or a citation to appear on any defaulter under clause (a) of section 136, but for action under any other clause of section 136,the Gaon Sabha shall report to Tahsildar for necessary action.
Any person who had defaulted in the payment of an arrear of land revenue may be arrested and detained in custody up to a period not exceeding 15 days unless the arrear with costs, if any, of the arrest and detention are sooner paid:
Provided that no woman or minor shall be liable to arrest or detention under this section: (Note: Second proviso omitted by Act 38 of 1965).
(1) The Deputy Commissioner may , whether the defaulter has been arrested or not, attach and sell his movable property .
(2) Every attachment and sale under this section shall be made according to the law in force for the time being for the attachment and sale of movable property in execution of a decree of a civil court.
(3) In addition to the particulars mentioned in clauses (a) to (o) of the proviso to section 60 of the Code of Civil Procedure, 1908, articles set apart exclusively for the use of religious worship shall be exempted from attachment and sale under this section.
(4) The costs of attachment and sale shall be added to the arrear of land revenue .
(1) Notwithstanding anything contained in this Act, where the land revenue payable in respect of a holding is in arrear, the deputy Commissioner may, either of his own motion or on the application of the Gaon Panchayat, sell the holding in such manner as may be prescribed and utilize the proceeds in satisfaction of the arrear and refund the excess, if any to the Bhumidhar.
(2) The Deputy Commissioner shall report to the prescribed authority any sale made under this section.
(3) Where any holding is sold under the provisions of this section, the proceeds thereof shall be utilized first in defraying the expenses of the sale and secondly in discharging the amount due as arrear of land revenue and the balance shall be payable to the person entitled.
(1) If any arrear of land revenue cannot be recovered by any of the processes mentioned in clauses (a) to (e) of section 136, the Deputy Commissioner may realize the same from the interest of defaulter in any other immovable property of the defaulter as if the said arrears were arrears of land revenue assessed on and due in respect of such other property.
(2) Sums of money recoverable as arrears of land revenue, but not due in respect of a specific land, may be recovered under this section from any immovable property of the defaulter.
A Bhumidhar or a person appointed under section 132 or a member of a Gaon Panchayat, who has paid the arrear of land revenue due on account of any other Bhumidhar may, in addition to any other mode of recovery open to him, within six months of the payment of such amount, apply to the Deputy Commissioner to recover such arrear on his behalf as if it were an arrear of land revenue payable to Government.
The Deputy Commissioner shall on receipt of such application satisfy himself that the amount claimed is due to such a person and may then proceed to recover, as if it were an arrear of land revenue, such amount with costs and interest from the said Bhumidhar or any persons in possession of his tenure.
The Deputy Commissioner shall not be a defendant to any suit in respect of the amount for the recovery of which an order has been passed under this section.
No appeal shall lie against the order of the Deputy Commissioner under this section, but nothing contained therein and no order passed under this section shall debar the Bhumidhar from maintaining a suit for arrear of land revenue.
The provisions of this Act with regard to the recovery of arrear of land revenue shall apply to all arrears of land revenue and sums of money recoverable as arrear of land revenue due at the commencement of this Act.
(1) At any time after an arrear of land revenue has accrued, the Deputy Commissioner may attach the village or any area therein in respect of which the arrear is due and place it under his own management or that of an agent appointed by him for that purpose for such period as he may consider necessary:
Provided that the period for which any village or any area therein may be so attached shall not exceed three years from the commencement of the agricultural year next following the date of attachment and the attachment shall be cancelled, if the arrears are sooner liquidated.
(2) Upon the expiry of the period of attachment, the village shall be restored free of any claim on the part of the Government for any arrear of land revenue due in respect thereof.
While an area is so held by the Deputy Commissioner under his own management, he shall be bound by any engagement which at the time of attachment existed between the defaulter and the Asamis and shall be entitled to manage the property so held and to receive all rents and profits accruing therefrom. The collections so made from the property shall be applied to the payment of any installment of land revenue which may become due after attachment and the cost of attachment and management, and the surplus, if any, shall be applied to wards discharge of the arrears on account of which the attachment is made.
(1) Where an arrear of land revenue is due in respect of a holding the Deputy Commissioner may, notwithstanding anything contained in this Act, let out the holding to any person other than the defaulter for a period not exceeding ten years commencing from the first day of July next following upon such terms and conditions as the Chief Commissioner may fix with due regard to the provisions of section 88.
(2) Nothing in this section shall affect the liability of any tenure –holders who may be liable under this Act for the payment of the arrear of land revenue.
(3) Upon the expiry of the period of lease the holding shall be restored to the tenure-holder concerned free on any claim on the part of the Government for any arrears in respect of such holding.
When any area is attached under section 144 or is let out under section 146 no payment on account of rent or other dues made by the Asami or person in possession in respect of the land after the date of the attachment to any person other than the deputy commissioner shall be valid discharge.
The provisions of Chapters V, VI and VII of Punjab Land Revenue Act 1887, as amended by this Act, shall, in so far as they are not inconsistent with the provisions of this Act , apply to applications and proceedings made or taken under this Chapter.
The Chief Commissioner may make (Note: For the Delhi Land Rules 1954, see Notification No. F.3 (16)/54 GA&R dated the 11th November, 1954; Delhi State Gazette, part V’, dated 20-1-1955, p.27) rules for the purpose of carrying into effect the provisions of this Chapter.
(1) The Chief commissioner may by notification in the official Gazette divide the entire area of the State into Gaon Sabha areas each comprising one or more contiguous revenue villages for the purposes of this Act and may by notification alter the boundaries of any area so notified:
[(Note: Subs. by s.15 of Central Act 4 of 1959, for “original proviso”.) Provided that such areas shall not include any area to which the Delhi Panchayat Raj Act, 1954, does not extend.]
(2) There shall be established for each Gaon Sabha Area and from such date or dates and by such name as may be prescribed, a Gaon Sabha having perpetual succession which shall be a body corporate and subject to any other enactment vested with the capacity of suing and being sued in its corporate name of acquiring, holding , administering and transferring property, both movable and immovable, and of entering into contracts.
[(3) (Note: Inserted by Act 38 of 1965 (deemed to have come into force on 7-4-1958) If the whole of a Gaon Sabha area ceases to be included in rural areas as defined in the Delhi Municipal Corporation Act, 1957, by virtue of a notification under section 507 of that Act, the Gaon Sabha constituted for that area shall thereupon stand dissolved and on such dissolution,
(a) All properties, movable and immovable, and all interests of whatsoever nature and kind therein , including moneys held in Gaon Sabha Area Fund, vested in the Gaon Sabha immediately before such dissolution, shall , with all rights of whatsoever description, used , enjoyed or possessed by Gaon Sabha, vest in the central Government.
(b) All duties, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for the Gaon Sabha before such dissolution shall be deemed to have been incurred, entered into or engaged to be done with or for the central Government;
(c) All rates, taxes, fees, rents and other charges due to the Gaon Sabha immediately before such dissolution shall be deemed to be due to the Central Government;
(d) All suits, prosecutions and other legal proceedings instituted or which might have been instituted by or against the Gaon Sabha may be continued or instituted by or against the Union of India;
(e) The provisions of this Act shall apply in relation to lands in such Gaon Sabha area, not being lands vested in the Central Government under clause (a), subject to the codification that references therein to Gaon Sabha and Gaon Panchayat shall be construed as references to the Central Government;
(f) Notwithstanding anything contained in clause (b) of sub- section (2) of section 1, the provisions of section 84, 85 86A and 87 and any other provision of this Act. Relating to ejectment of persons shall apply in relation to land vested in the Central Government under clause (a) subject to the modification that references therein to Gaon Sabha and Gaon Panchayat shall be construed as references to the Central Government.
(4) If only a portion of a Gaon Sabha area ceases to be included in rural areas as aforesaid, the jurisdiction of the Gaon Sabha constituted for that area shall cease in respect of that portion and upon such cesser, the provisions of clause (a) to (f) of sub section (3) shall apply to that portion as if the Gaon Sabha had been constituted for that portion alone and dissolved, subject to such incidental and consequential orders as the Chief Commissioner may deem necessary to make.
(5) If the size of a Gaon Sabha area is reduced as a result of a portion thereof ceasing to be included in rural areas as aforesaid and the Chief Commissioner is of the opinion that the size of the Gaon Sabha area is not sufficiently large to be under the jurisdiction of a separate Gaon Sabha area is not sufficiently large to be under the jurisdiction of a separate Gaon Sabha, he may, by notification in the Official Gazette, declare that such Gaon Sabha area shall, from a date to be specified in the notification, cease to be a separate Gaon Sabha area and the Gaon sabha area and the Gaon Sabha constituted there for shall stand dissolved any may direct that the said area shall be included in one or more adjoining Gaon Sabha areas, and thereupon, the provisions of section 3 of the Delhi Panchayat Raj Act, 1954, shall, so far as may be, apply.”]
All persons registered by virtue of the provisions of the Constitution and the Representation of the People Act, 1950, as voters in so much of the electoral roll for any parliamentary constituency for the time being in force as relates to a Gaon Sabha Area shall be the members of the Gaon Sabha for that area.
Explanation – In this section, the expression “Parliamentary constituency” has the meaning assigned to it under the Representation of the People Act,1950.
(2) Every Gaon Sabha shall have an executive body to be known as the Gaon Panchayat.
(3) A Gaon Panchayat shall consist of a Pradhan and such number of panches, not less than four and not more than ten, as the Chief Commissioner may fix from time to time in this behalf.
(4) The Pradhan and the panches shall be elected by the members of the Gaon Sabha from among themselves.
(5) The Chief Commissioner shall, by order in the Official Gazette, determine the number of seats, if any, reserved for women and the Scheduled Castes in each Gaon Panchayat :
Provided that the number of seats so reserved for the Scheduled Castes shall bear as nearly as may be the same proportion to the total number of seats in the Gaon Panchayat as the population of the Scheduled Castes in the area of the Gaon Sabha bears to the total population of such area.
The Chief Commissioner shall arrange for the election of the Up- Pradhan by the members of the gaon Panchayat from amongst themselves and for the appointment of such other officers or office bearers of the gaon Panchayat as may be prescribed.
No person shall be entitled to be or remain a member of the Gaon Panchayat , if he –
(a) [(Note: Subs. by s.14 of Central Act 4 of 1959, for the word “is of unsound mind”) ceases to be a member of the Gaon Sabha or]
(b) Is suffering from leprosy; or
(c) Is an undercharged insolvent; or
(d) Is a servant of the Government ; or
(e) Is convicted of an offence involving moral turpitude or ordered to give security for good behavior under section 110 of the Code of Criminal Procedure, 1898:
Provided that the disqualifications under clause (c) or (e) may be removed by an order of the Chief Commissioner or the prescribed authority.
[(1) Renumbered by Act 38 of 1965)] On the commencement of this Act -
(i) All lands whether cultivable or otherwise, except land for the time being comprised in any holding or grove,
(ii) All trees (other than trees in a holding or on the boundary thereof or in a grove or abadi) [(Note: Ins. by s.16 of Delhi Act of 1956) or planted by a person other than a proprietor on land other than land comprised in his holding],
(iii) Public wells,
(iv) Fisheries,
(v) Hats, bazaar and meals, except hats, bazaar and meals held on land to which provisions of clauses (a) to (c) of sub- section (1) of section 11 apply,
(vi) Tanks, ponds, water channels, pathways and abadi sites,
(vii) Forest, if any. Situate in a Gaon Sabha Area, shall vest in the Gaon Sabha :
Provided that if the uncultivated area situate in any Gaon Sabha area is, in the opinion of the Chief Commissioner, more than the ordinary requirements of the Gaon Sabha, he may exclude any portion of the uncultivated area from vesting in the Gaon Sabha , he may exclude any portion of the uncultivated area from vesting in the Gaon Sabha under this section and may make such incidental and consequential order as may be necessary.
[(2) “(Note: Inserted by Act 38 of 1965) Where any land which is vested in the Central Government under sub section (3) or sub section (4) of section 150, is held immediately before such vesting by an Asami of a Gaon Sabha , then , notwithstanding anything contained in clause (b) of sub section (2) of section 1, and so long as it is held by such Asami, the provisions of this Act shall continue to apply to such land subject to the modification that all references therein to Gaon Sabha and Gaon Panchayat shall in relation to such land be construed as references to the Central Government.”]
(1) Subject to the provisions of this Act, the Gaon Sabha shall, from the date, this Act comes into force, be charged with the general superintendence, management and control of all lands, trees (other than trees in a holding, grove or abadi [(Note: Ins. by s.17 of Delhi Act 16 of 1965) or planted by a person other than a proprietor on land other than land comprised in his holding]) , public wells, fisheries, tanks , ponds, water channels, pathways, abadi sites, and hats, bazaar, melas, and forest, if any, vested in the Gaon Sabha under section 154.
(2) Notwithstanding anything contained in this and the foregoing section, the Chief commissioner, may, at any time, by notification in the official Gazette declare that as from the date to be specified hats, bazaar, melas, and water channels, hereinbefore vested in the Gaon Sabha, shall be transferred to and be vested in the District Board or any other authority as may be specified, who shall thereupon, notwithstanding anything contained in this Act, be charged with the management, superintendence and control thereof in accordance with the law as may be applicable for the time being in force.
Without prejudice to the generality of the provisions contained in sections 154 and 155, the functions and duties of Gaon Panchayat shall include -
(a) The development and improvement of agriculture and horticulture,
(b) The preservation, maintenance and development of forest and trees,
(c) The Maintenance and development of abadi sites and village communications,
(d) The management of hats, bazaar and melas,
(e) The development of co-operative farming.
(f) The development of animal husbandry, which includes pisciculture and poultry farming, and the development of piggery,
(g) The consolidation of holdings,
(h) The development of cottage industries;
(i) The maintenance and development of fisheries, wells and tanks, and
(j) Such other matters as may be prescribed.
The term of gaon Panchayat, the method of filling up casual vacancies, the procedure of its working and the conduct of its business shall be such as may be prescribed.
There shall be credited to the Goan Sabha Area Fund
(1) All sums received by the Gaon Sabha or the Gaon Panchayat under this Act whether on its own behalf or for and on behalf of all the adult members of the Gaon Sabha Area, and
(2) Such other sums as may be prescribed.
Notwithstanding anything contained in any law for the time being in force, the Gaon Panchayat may utilize, in the manner prescribed, the Gaon Sabha Area Fund to meet the charges in connection with the discharge of its duties or performance of its functions under this Act or rules made thereunder:
Provided that nothing in this section of in any for the time being in force, shall mean or be constructed to mean as authorising the Gaon Sabha to so utilize any sums, collected or realised or and on behalf of the Government, except as specifically provided in this Act.
(1)Notwithstanding anything contained in any law for the time being in force, the Chief Commissioner may issue such orders and directions to the Gaon Sabha or the Gaon Panchayat as may appear to be necessary for this Act.
(2) It shall be the duty of the Gaon Sabha or the Gaon Panchayat and its office bearers to forthwith carry out such orders and comply with such directions.
(1) If at the commencement of this Act, the Chief Commissioner finds that there is an unavoidable delay in bringing the provisions of this Chapter into operation or if at any time the Chief Commissioner is satisfied that—
(a) A Gaon Sabha or Gaon Panchayat has failed without reasonable cause or excuse to discharge the duties or to perform the functions imposed or assigned by or under this Act,
(b) Circumstances have so arisen that a Gaon Sabha or a Gaon Panchayat is rendered unable or may be rendered unable to discharge the duties or perform the functions imposed or assigned by or under this Act, or
(c) It is otherwise expedient or necessary so to do, he may, by notification in the official Gazette, declare that the duties, powers and functions of the Gaon Sabha or the Gaon Panchayat under this Act shall be discharged, exercised and performed by such person or authority of a rank not inferior to that of Deputy Commissioner and for such period and subject to such restrictions as may be specified.
(2) The Chief Commissioner may make such incidental and consequential provisions an may appear to be necessary for this purpose.
(1) If at the commencement of this Act, the Chief Commissioner finds that there is an unavoidable delay in bringing the provisions of this Chapter into operation or if at any time the Chief Commissioner is satisfied that—
(a) A Gaon Sabha or Gaon Panchayat has failed without reasonable cause or excuse to discharge the duties or to perform the functions imposed or assigned by or under this Act,
(b) Circumstances have so arisen that a Gaon Sabha or a Gaon Panchayat is rendered unable or may be rendered unable to discharge the duties or perform the functions imposed or assigned by or under this Act, or
(c) It is otherwise expedient or necessary so to do, he may, by notification in the official Gazette, declare that the duties, powers and functions of the Gaon Sabha or the Gaon Panchayat under this Act shall be discharged, exercised and performed by such person or authority of a rank not inferior to that of Deputy Commissioner and for such period and subject to such restrictions as may be specified.
(2) The Chief Commissioner may make such incidental and consequential provisions an may appear to be necessary for this purpose.
Notwithstanding anything contained in the code of Civil Procedure, 1908, or any other law for the time being in force. -
(a) No suit or other proceeding under sub-section (2) of section 36 of the Delhi Panchayat Raj Act, 1954, shall , after the date of passing of the Delhi Land Reforms (Amendment) Act, 1965, be instituted or, as the case may be, continued in any civil or revenue court unless the Union of India has been added as a plaintiff or defendant according as the case is by or against the Gaon Sabha;
(b) No such suit or other proceeding shall be decided on the admission by the Pradhan or any representative of the Gaon Sabha with respect to the right or title of any person to the property in dispute, whether made on his own motion or on the authority of a resolution of the Gaon Panchayat unless such admission has been authorised in writing by the Director of Panchayats. Delhi, or by such other officer as the Chief commissioner may specify in this behalf.
(1) Where in any suit or proceeding before any civil or revenue court filed under sub-section (2) of section 36 of the Delhi Panchayat Raj Act, 1954, the ownership of any land has been decided if favour of any person other than the Gaon Sabha before the date of passing of the Delhi Land Reforms (Amendment ) Act, 165, then notwithstanding anything contained in clause (b) of sub section (2) of section 1 or in any other law for the time being in force, such decree or order shall, on an application made by the Government of India within twelve months from that date or within such further period as the court may, for sufficient cause, allow, be set aside if in the revenue records of the fasli year ending on the 30th June, 1954,such land was not included in the holding of the person in whose favour the decree or order was passed or his predecessor in interest, or was not recorded as being in the cultivation of such person or his predecessor in interest.
(2) On the setting aside of any decree or order in any suit or proceeding by or against the Gaon Sabha under sub section (1), such suit or proceeding shall be tried or heard afresh with the Union of India added as party.”]
The Chief Commissioner may make (Note: For the Delhi Land Reforms Rules 1954 see Notification No.F.3 (16)/54 GA & R, date the 11th November, 1954; Delhi State Gazette, Part V, dated 20-1-1955, p.24) rules for the purpose of carrying into effect the provisions of this chapter.
Any ten or more members of a Gaon Sabha holding between them Bhumidhari rights in thirty standard acres or more in the area of a Gaon Sabha and desiring to start a co operative farm may apply in writing to the Registrar appointed under the Bombay co- operative farm may apply in writing to the Registrar appointed under the Bombay Co-operative Societies Act, 1925 as extended to the State (hereinafter referred to as the Registrar ) for the registration thereof.
An application for the registration of a co operative farm shall be accompanied by extracts from the record of rights showing the total area with the recorded numbers of all the fields offered by each of the applicants in the Gaon Sabha Area and shall contain such further particulars as may be prescribed.
(1) The Registrar may , if he is satisfied after such inquiry as may be prescribed that the application has been duly made, register the co operative farm under the Bombay Co- operative Societies Act, 1925, as extended to the State and grant a certificate of registration.
(2) The Registrar shall cause a copy of the certificate to be forwarded to the Deputy Commissioner for such action as may be prescribed.
When a co operative farm has been registered under section 165, all land in the Gaon Sabha Area offered by a member, whether as Bhumidhar or by Asami, shall for so long as the registration of the co operative farm is not cancelled, be deemed to be transferred to and held by the co operative farm which shall thereupon hold such land in accordance with the provisions of this Chapter, and may, notwithstanding anything contained in this Act, use it for any purpose mentioned in section 22 or the development of cottage industries.
Not less than two thirds of the total number of persons other than those who have applied under section 163 holding Bhumidhari right in un economic holdings in a Gaon Sabha Area or holding between them not less than two thirds of the aggregate area comprised in all un-economic holdings in the Gaon Sabha Area may apply jointly to the Deputy Commissioner that a co-operative farm be established, and on such application the Deputy Commissioner may, by notice, require all Bhumidhars of the remainder of un-economic holdings in the Gaon Sabha Area to show cause why a co-operative farm comprised of all the land included in un-economic holdings in the Gaon Sabha Area be not established and constituted.
(1) The Deputy Commissioner shall hear the objection or objections of the tenure- holders who may desire to be heard and after hearing them he shall unless he is satisfied that it is not in the best interests of the persons affected, order that a co- operative farm consisting of all the land comprised in the un-economic holdings in the Gaon Sabha Area be established.
(2) Notice of an order passed directing a co-operative farm to be established shall be served on every person affected and shall also be proclaimed in the Gaon Sabha area in the prescribed manner.
Any person aggrieved by an order of the Deputy Commissioner under section 168 may appeal to the Chief Commissioner within sixty days from the date thereof and the order passed by the Chief Commissioner in appeal shall be final and conclusive.
(1) The Deputy Commissioner shall cause a copy of the order passed under section 168 or 169 directing that a co- operative farm be established to be forwarded to the Registrar, who may thereupon register the farm under the Bombay Co- operative Societies Act, 1925, as extended to the State, and if he agrees to do so, shall grant a certificate of registration .
(2) The Registrar shall cause a copy of the certificate to be forwarded to the Deputy Commissioner for such action as may be prescribed.
When a co- operative farm has been registered under section 170, all land comprised in the un- economic holdings in the Gaon Sabha Area held by any Bhumidhar or an Asami under him shall, for so long as the registration of the co- operative farm is not cancelled, be deemed to be transferred to and held by the co- operative farm which shall thereupon hold such land in accordance with the provisions of this Chapter and may, notwithstanding anything contained in this Act, use it for any purpose mentioned in section 22 or the development of cottage industries.
When a certificate of registration in respect of any co – operative farm has been granted under section 165 or 170 the provisions of the Bombay Co- Operative Societies Act, 1925 , as extended to the State, shall , in so far as they are not inconsistent with the provisions of this Act or rules made there under, be applicable thereto.
Every application submitted under section 163 or 167 shall be accompanied with a copy of the proposed bye laws of the co – operative farm and such Bye laws shall be deemed to be the bye laws required to be filed under sub section (3) of section 9 of the Bombay Co- operative Societies Act, 1925 as extended to the State.
Nothings in this Chapter shall be construed to mean that the interest of a Bhumidhar in the land contributed to the co-operative farm by or on his behalf has ceased to vest in him.
(1) No member of a co-operative farm shall except as provided in sub-section (2), be entitled to make any disposition of any land contributed by him to the farm.
(2) Every member of a co-operative farm, who is a Bhumidhar of any land contributed by him to the co-operative farm, may make a testamentary disposition of such land, and with the permission of co operative farm, any other disposition. Such permission shall not be withheld if the transferee is willing to join the farm.
Every member of a co- operative farm shall be entitled to such rights and privileges, be subject to such obligations and liabilities, and be bound to discharge such duties as may be conferred or imposed upon him by or under this Act.
The co-operative farm, shall ,as from the date it is constituted, be liable for the payment of all the land revenue, cesses, local rates or rent payable by the Bhumidhar or Asami in respect of the land held by it under section 166 or 171.
(1) Any person, who is a resident of the Gaon Sabha Area where the co operative farm is situate or who intents to settle down in the Gaon Sabha Area or who cultivates land therein, may be admitted as a member thereof upon such terms and conditions as may be laid down by the farm.
(2) When a member, whose land is held by a co- operative farm, dies, his heirs under this Act shall become members of the co- operative farm.
(1) A co-operative farm shall be entitled to such concessions and facilities as may be prescribed.
(2) Without prejudice to the generality of the foregoing provision , the concessions and facilities may include -
(a) Reduction of land revenue,
(b) Reduction of or exemption from any tax on agriculture,
(c) Free technical advice from experts employed by the Government on farming and use of mechanical aids,
(d) Financial aid and grant of subsidy and loans with or without interest, including loans for purchase of agricultural machinery such as tractors, etc.,
(e) Admission to land by the Gaon Sabha,
(f) Priority in irrigation from State irrigation works, and
(g) Priority in consolidation proceedings.
The Chief Commissioner may made (Note: For Delhi Land Reforms Rules, 1954, see Notification No. F.3(16)/54 GA&R, dated the 11th November, 1954; Delhi State Gazette, Part V, dated 20-1-1955, p.27) rules for the purpose of carrying into effect the provisions of this Chapter.
The chief Commissioner may, by notification in the official Gazette, delegate to any officer or authority subordinate to him any of the powers conferred on the Chief Commissioner by this Act to be exercised subject to any restrictions and conditions as may be specified in the notification.
Subject to any conditions or restrictions that may be prescribed, any officer appointed under this Act may, for the purposes of this Act, enter at any time upon any land with such public servants as he considers necessary and make a survey or take measurements thereof or do any other act which he considers to be necessary for carrying out any of his duties under this Act.
Any notice or other document required or authorised to be served under this Act may be served either-
(a) By delivering it to the person on whom it is to be served , or
(b) By leaving it at the usual or last known place of abode of that person , or
(c) By sending it in a registered letter addressed to that person at his usual or last known place of abode, or
(d) Incase of an incorporated company or body, by delivering it or sending it in a registered letter addressed to the Secretary or other principal functionary of the company or body at its principal office, or
(e) In such other manner as may be laid down in the code of Civil Procedure, 1908.
All documents, statements and registers maintained under this Act or the rules framed there under shall be open to inspection during such hours and subject to such conditions, and payments of fees, as may be prescribed, and any person shall, on payment of such fees, be entitled to be furnished with a copy of or any portion of any such documents , statement or register.
(1) Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule I shall , notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof.
(2) Except as hereinafter provided no appeal shall lie form an order passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid.
(3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof.
(4) A second appeal shall lie from the final order passed in an appeal under sub section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid.
(1) Notwithstanding anything contained in section 185, if in any suit or proceeding mentioned in column 3 of Scheduled I, question is raised regarding the title of any party to the land which is the subject matter of the suit or proceeding and such question is directly and substantially in issue the Court shall, unless the question has already been decided by a competent civil court for the decision of that issue only.
Explanation:- A plea regarding the title to the land which is clearly untenable and intended solely to oust the jurisdiction of the revenue court shall not be deemed to raise a question regarding the title to the land within the meaning of this section.
(2) The civil court, after reframing the issue, if necessary, shall decide such issue only and return the record together with its finding thereon to the revenue court which submitted it.
(3) The revenue court shall then proceed to decide the suit or , accepting the finding of the civil court on the issue referred to it.
(4) An appeal from a decree of a revenue court in a suit or proceeding in which an issue regarding title has been decided by a civil court under sub-section (2)shall lie to the civil court which having regard to the valuation of the suit has jurisdiction to hear appeal from the Court to which the issue of title has been referred.
The Chief Commissioner may call for the record of any suit or proceeding referred to in Schedule I decided by any subordinate court in which no appeal lies, or where an appeal lies but has not been preferred, and if such subordinate court appears -
(a) To have exercised a jurisdiction not vested in it in law ,or
(b) To have failed to exercise a jurisdiction so vested, or
(c) To have acted in the exercise of jurisdiction illegally or with material irregularity.
The Chief Commissioner may pass such order in the case as he thinks fit.
(1) No officer or servant of Government shall be liable in any civil or criminal proceeding in respect of any act done or purporting to be done under this Act or under any rule made thereunder, if the act was done in good faith and in the course of executing of the duties or the discharge of functions, imposed by or under this Act.
(2) No suit or other legal proceeding shall lie against the Chief Commissioner for any damage caused or likely to be caused or any injury suffered or likely to be suffered by virtue of any provisions of this Act or by anything done or intended to be done in good faith in pursuance of this Act or any rules made thereunder.
(1) Notwithstanding anything contained in any law, custom, usage or agreement, the right of pre-emption shall not exist in respect of any sale of any immovable property in the area to which this Act applies whether made voluntarily or under order of court.
(2) All suits for pre-emption pending in respect of any such property in any court whether of the first instance or appeal or revision shall stand dismissed, but award of the costs incurred in any such suit shall be in the discretion of the court.
(1) Unless otherwise expressly provided by or under columns 4 and 6 of Schedule I of this Act, the provisions of the Indian Court Fees Act, 1870, the Code of Civil Procedure, 1908, and the Indian Limitation Act, 1908, shall apply to the proceedings under this Act.
(2) The provision of the General Clauses Act, 1897 shall mutatis mutandis apply, as far as may be, to this Act in the same manner as they apply to a Central Act.
(1) Every power to make (Note: For Delhi Land Reforms Rules 1954, see Notification No.F.3(16)/54, GA&R dated the 11th November, 1954; Delhi State Gazette, Part V, dated 20-1-95, p.27) rules given by this Act shall be deemed to include the power to provided for -
(a) Imposing limits of time within which things to be done for the purposes of the rules must be done, with or without powers to any authority therein specified to extend limits imposed;
(b) The procedure to be followed in suits, applications and other proceedings under this Act, in cases for which no specific provisions has been made herein;
(c) The duties of any officer or authority having jurisdiction under this Act, the procedure to be followed by such officer and authority;
(d) The time within which applications and appeals may be presented under this Act, in cases for which no specific provision in that behalf has been made herein;
(e) The fees to be paid in respect of appeals and applications under this Act, in cases for which no specific provisions in that behalf has been made herein;
(f) The application of the provisions of the Indian Limitation Act, 1908, to applications, appeals and proceedings under this Act, other than those mentioned in Schedule I;
(g) The delegation of powers conferred by this Act on the Chief Commissioner or any other authority, officer or person; and
(h) The transfer of proceedings from one authority or officer to another.
(2) All rules made under this Act, shall be published in the Official Gazette, and shall, unless some later date is appointed, come into force on the date of such publication.
(3) (Note: Ins. by s.19 of Central Act 4 of 1959) All rules made under this Act shall be laid for not less than thirty days before both Houses of Parliament as soon as possible after they are made and shall be subject to such modifications as Parliament may make during the session in which they are so laid or the session immediately following.
Nothing contained in this Act shall apply to any land which is evacuee property as defined in the Administration of Evacuee Property Act, 1950, except in the following cases:-
(1) Evacuee land held by tenants under lease or agreement entered into before the 15th day of August 1947, and
(2) Evacuee’s share in lands of common utility which would vest in the Gaon Sabha.
| Sl. No. | Section of the Act | Description of suit application and other proceedings | Period of Limitation | Time from which period beings | Proper Court fees | Court of original jurisdiction | Court of | ||
| 1st Appeal | 2nd Appeal | ||||||||
| [(Note: Subs. by s.20 of Central Act 4 f 1959 for the figure “15(2)) 15(1)] | Application by mortgagor depositing mortgage money. | Nine months | From the commencement of this Act. | [(Note: Substitmted by Act 38 of 1965 for “fifteen Annas’) Rs. 1.25p] | Revenue Assistant. | Deputy Commissioner. | - | ||
| [(Note: Subs. by ibid. for original entry) 15(2) (3) (4) and (5)] | Application by mortgagor or mortgagee or tenants to be declared Bhumidhar.] | None | None | - | |||||
| 13 | Application to regain possession | One year | From the commencement of this Act. | Chief Commissioner | |||||
| 10, 11, 12, 13, 73, 74, 79 and 85 | Application for declaration of Bhumidhari rights. | None | None | As in Court Fees Act. | 1870 | ||||
| 23 | Application for the use of holding for industrial purposes. | Deputy Commissioner | Chief Commissioner | - | |||||
| 24 | Application for reversion form industrial purposes to Agriculture. | - | |||||||
| 36(2) | Application for determination of the share of the lessor and partition of holding. | Revenue Assistant. | Deputy Commissioner. | - | |||||
| 40 | Application for exchange or for the record of an exchange of land. | None | None | As in the Court Fees Act, 1870, according to the amount of [(Note: Subs. by s.t8. of Delhi Act 16 of 1956, for the word “Rent”) land revenue] to be payable for the more highly [(Note: Subs. by s.t8 of Delhi Act 16 of 1936, for the word “Rented”) and revenue assessed] of the two pieces of land exchanged. | Revenue Assistant. | ||||
Deputy Commissioner
–
.(Note: Substituted by Act 38 of 1965) 42(i) Suit for ejectment of transferee under sub-section (i).NoneNoneAs in the Court fees act, 1870.Revenue Assistant.Deputy Commissioner.Chief Commissioner in the case of Bhumidhar only. (ii) Proceedings for ejectment of transferee under sub-section (3).Do.Do.Nil.Do.Do.Do. (Note: Serial No.10 and entries omitted by act 38 of 1965) 11.55Suit for partition of holding of a Bhumidhar.Do.Do.As in the Court Fees Act, 1870, on land revenue payable.Do.Do.- 12.62Application for surrenderDo.Do.Fifteen annasTahsildar.Do.- 13.64Application for service of notice in respect of abandoned holding.Do.Do.Do.Do.Do.- 13A.65A(i) Proceedings for leasing land on behalf of Bhumidhar under clause (i) or clause (ii) of sub-section (4) or under sub-section (5).Do.Do.Nil.Deputy CommissionerChief Commissioner.- (ii) Proceedings for terminating the lease under clause (ii) or clause (iii) of sub-section (5).Do.Do.Do.Do.Do.- (iii) Proceedings for declaring the lessee to be Bhumidhar and extinguishing the interest of the original Bhumidhar under clause (a) of sub-section (6).Do.Do.Do.Do.Do.- (iv) Proceedings for terminaiton of lease and for fresh lease of land under clause (b) of sub-section (6)Do.Do.Do.Do.Do.- 14.69Application by an Asami to get land if Gaon Sabha fails to give.Six monthsFrom the date of extinction[(Note: Subsituted by Act 38 of 1965 for “fifteen Annas”) Rs.1.25p]Revenue AssistantDeputy Commissioner- 15.75(i) Application for cancellation of order of Gaon Sabha relating to admission of a person to land.Six monthsFrom the date of order of Gaon Sabha.Rs.1.25p.Deputy Commissioner.Chief Commissioner.- (ii) Proceedings of Deputy Commissioner for such cancellation.Do.When the Deputy Commissioner first knew of the irregular allotment.Nil.Do.Do.- 16.[(Note: Substinted by Act 58 of 1965 77(1)(a)] read with Section 69.Suit for ejectment of Asami.One yearFrom the date of extinction of the rights of Bhumidhar or Asami.[(Note: Substinted by Act 38 of 1965) Rs.1.25p.Revenue AssistantDeputy Commissioner]- [(Note: Substituted by Act 38 of 1965) 77(1)(b)] read with Section 6(a) (i) & (ii)Do.Do.From the commencement of this Act where the cause of action arose under Section 77(b) before the date of Commencement of this Act and in all other cases from the dae on which the cause of action arose.Do.Do.Do.- [(Note: Substituted by Act 38 of 1965) 77(1)(b)] read with Section 6(a) (iii).Do.None.None.Do.Do.Do.- [(Note: Substituted by Act 38 of 1965) 77(1)(a)] (i) read with Section 6(b) & (d).Do.Do.Do.Do.Do.Do.- [(Note: Substituted by Act 38 of 1965) 77(1)(c)] (ii) read with Section 6(b) & (d).Do.Two years.From the date of determination of disability.Do.Do.Do.- [(Note: Substituted by Act 38 of 1965) 77(1) (d)]Suit for ejectment of an Asami on the ground of an unsatisfied decree of arears of rent.Three years.The date of final decree in the case.As in the Court Fees Act, 1870.Revenue Assistant.Deputy Commissioner.- 16A.(Note: Inserted by Act 38 of 1965) 77(2)Application by member of armed forces of the Union for ejectment of Asami.Six monthsFrom the date of retirement of discharge or of being sent on Reserve.Rs. 1.25p.]Deputy Commissioner– 17.(Note: Substituted by Act 38 of 1965) 81(i) Suit for ejectment of Bhumidhar or Asami and for damages under sub-section (i).Three yearsFrom the date of unlawful use of the land.As in the Court fees Act, 1870.Revenue Assistant.Deputy Commissioner.- (ii) Proceedings under sub-section (2).Three years or one year from the date of passing of the Delhi land Reforms (Amendment) Act, 1965, Whichever period expires later.Do.Nil.Do.Do.- 18.83Suit for injunction or for the repair of the waster or damage caused to the holding.Do.From the date the damage is done or the waste begins.As in the Court fees Act, 1870.Do.Do.- 19(Note: Substituted by s.20 of Central Act of 1959 for original entry) 84Suit for ejectment of a person occupying land without title and damages.Three years.From the date of issue of the prescribed declaration form to the tenure holder or the sub-tenure-holder concerned.Do.Do.Do.- (i) By a Bhumidhar declared under Chapter III of the Act or by an Asami falling under section 6 of the Act where such unlawful occupat was in possession of the land before declaration form; (ii) By a Gaon Sabha where the unlawful occupant was in possession of the land before the constitution of Gaon Panchayat.Do.From the date of constitution of Gaon Panchayat under section 151.Do.Do.Do.- (iii) By a Bhumidhar, Asami or Gaon Sabha in any other case.Do.From the 1st of July following the date of occupation]Do.Do.Do.- 19A.(Note: Inserted by Act 38 of 1965) 85Suit for ejectment of a person referred to in the first proviso.Three years.From the date of passing of the Delhi Land Reforms (Amendment) Act, 1965.Do.Do.Do.- 20.86Suit for ejectment of a Bhumidhar to whom clause (i) of Section 85 applies.One yearFrom the date of acquiring Bhumidhari rights.Do.Do.Do.- 20A.(Note: Inserted by Act 38 of 1965) 86AProceedings for ejectment of persons occupying land without title.Same as tht provided for a suit under section 84, 85 or 86, as the case may be.Same as that provided for a suit under section 84, 85 or 86, as the case may be.Nil.Revenue AssistantDeputy Commissioner.- 21.(Note: Subs. tiruted by s.20 of Central Act 4 of 1959 for original entry.) 87Suit for ejectment of person from lands of public utility.Three years.From the date of constitution of Gaon Panchayat under section 151][(Note: Substituted by Act 38 of 1965) As in the Court Fees Act, 1870]Do.Do.Chief Commissioner 22.88Objection of an Asami against the fixation of rent by Gaon Sabha or land holder.One year.From the date of fixation of rent.[(Note: Substituted by Act 38 of 1965 for “Fifteen Annas”) Rs.1.25p]Do.Do.- 23.89Application against variation of rent.One year.From the date of variationAs in the Court Fees Act, 1870.Do.Do.- 24.90Suit for determination of rent and for arrears of rent.During the period of occupationor within three years after the expiry of such period.Date of occupation.Do.Do.Do.- 25.93Suit for commutation of rentDo.Do.Do.Do.Do.- 26.95Application for recovery of arrears of rent and ejectment in default.Three years.Three months after the date the rent becomes due.Do.Tahsildar.Do.- 27.102Suit for recovery of irrigation duesDo.From the date of delivery of Jamabandi.Do.Do.Do.- 28.104Declaratory suit.None.None.Fifteen annasRevenue Assistant.Do.Chief Commissioner. 29.111Application for variation of land revenue.None. As in the Court fees Act, 1870.Revenue AssistantDeputy Commissioner- 30.142Application by a Bhumidhar or others for reimbusement of land revenue.Three years.From the date of the arrears become due.Do.Do.Do.- 31.167Application by tenure-holder of uneconomic holding for formation of a Co-operative Farm.None.None.Nil.Deputy Commissioner.Chief Commissioner.-
Stay of suits and proceedings
(i) Appointment of lambardars under section 45 of Land Revenue Act, U.P. 1901, or appointments of Headman, Zaildar or Inamdars under section 28, Punjab Land Revenue Act, 1887.
(ii) Partition or Union of Mohals under Chapter VII, land Revenue Act, U.P. 1901, or Partition of Land under Chapter IX, Punjab Land Revenue Act, 1887.
(iii) Suits, applications or proceedings (including appeals, reference and revisions) relating to or pending under:
| Sl. No. | Agra Tenancy Act, 1901 | Punjab Tenancy Act, 1887 |
| Section 31, Remedies against illegal sublease. | ||
| Sections 52 and 53, Commutation, abatement or enhancement of rent. | ||
| Sections 57 (b), (c) and (d) and 58, Ejectments. | Sections 39, 40 and 41, Ejectments - | |
| except against those persons who are Asamis of the land referred to in clause (b) of section 77 of Delhi land Reforms Act, 1954. | ||
| Section 85, Notice of surender through Tahsildar. | Section 36, Notice of surrender through Revenue Officer. | |
| Section 94, Disputes as to right to make improvement. | Disputes arising from right to make improvements under sections 61 to 68. | |
| Section 96, right to written leases or counterparts. | - | |
| Section 150, Resumption of or assessment of rent or revenue on rent-free grants. | - | |
| Section 155, Ejectment when rent-free grant is resumed. | - | |
(43 OF 1951)
[17th July, 1951]
An Act to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt 1[***] practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.
BE it enacted by Parliament as follows:-
——————–
1. The words “and illegal” omitted by Act 27 of 1956, sec. 2.
This Act may be called the Representation of the People Act, 1951.
(1) In this Act, unless the context otherwise requires,-
(a) Each of the expressions defined in section 2 or sub-section (1) of section 27 of the Representation of the People Act, 1950 (43 of 1950), but not defined in this Act, shall have the same meaning its in the Act;
(b) “Appropriate authority” means, in relation to an election to the House of the People or the Council of States 1[***], the Central Government, and in relation to an election to the Legislative Assembly or the Legislative Council of a State, the State Government;
2[(bb) “Chief electoral officer” means the officer appointed under section 13A of the Representation of the People Act, 1950 (43 of 1950);]
(c) “Corrupt practice” means any of the practices specified in section 123 3[***];
4[(cc) “District election officer” means the officer designated or nominated under section 13AA of the Representation of the People Act, 1950 (43 of 1950);]
(d) “Election” means an election to fill a seat or seats in either House of’ Parliament o in the House or either house of the Legislature of a State other than the State of Jammu and Kashmir 5[***];
6[(e) “Elector” in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950);]
7[(f) “Political party” means an association or a body of individual citizens of India registered with the Election Commission as a political party under section 29A;]
(g) “Prescribed” means prescribed by rules made under this Act;
8[(h) “Public holiday” means any day which is a public holiday for the purposes of section 25 of the Negotiable Instruments Act, 1881 (26 of 1881);]
9[*** ]
10[***]
11[(i)] “Sign” in relation to a person who is unable to write his name means authenticate in such Banner as may be prescribed.
12[***]
13[*** ]
(2) For the purposes of this Act, 14[***] a Parliamentary constituency, an Assembly constituency, a Council constituency, a local authorities’ constituency, a graduates’ constituency and a teachers’ constituency shall each be treated as a constituency of a different class.
(3) Any requirement under this Act that a notification, order, rule, declaration, notice or list issued or made by any authority shall be published in the Official Gazette, shall, unless otherwise expressly provided in this Act, be construed as a requirement that the notification, order, rule, declaration, notice or list shall-
(a) Where it is issued or made by the Central Government, be published in the Gazette of India;
(b) Where it is issued or made by a State Government, be published in the Official Gazette of the State; and
(c) Where it is issued or made by any other authority, be published in the Gazette of India if it relates to an election to, or membership of, either House of Parliament 14[***] and in the Official Gazette of the State if it relates to an election to, or membership of, the House or either House of the Legislature of a State.
(4) Where under any of the provisions of this Act, anything is to be prescribed, different provisions may be made for different cases or classes of cases.
15 [***]
16[(5) Any reference in this Act to a law which is not in force in the State of Jammu and Kashmir shall, in relation to that State, be construed as a reference to the corresponding law, if any, in force in that State.]
15[***]
——————–
1 Certain words omitted by Act 103 of 1956, sec. 66.
2. Ins. by Act 27 of 1956, sec. 3.
3. The words and figures “or section 124” omitted by, sec. 3.
4. Ins. by Act 47 of 1966, sec. 15 (w.e.f. 14-12-1966).
5. Certain words omitted by Act 58 of 1958, sec. 14.
6. Subs. by Act 27 of 1956, sec. 3, for clause (e).
7. Clause (f) which was omitted by Act 27 of 1956, sec. 3 and ins. by Act 1 of 1989, see. 3 (w.e.f. 15-6-1989).
8. Ins. by Act 47 of 1966, sec. 15 (w.e.f. 14-12-1966).
9. Clauses (h) and (i) omitted by Act 27 of 1956, sec. 3.
10. Clause (i) re-lettered as clause (h) by Act 27 of 1956, sec. 3 and omitted by the Adaptation of Laws (No. 2) Order, 1956.
11. Clauses (k) and (i) re-lettered as clauses (i) and (k) by Act 27 of 1956, sec. 3.
12. Clause (j) ins. by Act 27 of 1956, sec. 3 and omitted by the Adaptation of Laws (No. 2) Order, 1956.
13. Clause (k) omitted by Act 47 of 1066, sec. 15 (w.e.f. 14-12-1966
14. Certain words omitted by Act 103 of 1956, sec. 66.
15. Subsections (5) and (7) omitted and subsection (6) renumbered as sub-section (5) by Act 27 of 1956, sec. 3.
16. Subs. by Act 47 of 1966, sec. 15, for sub-section (5).
1[QUALIFICATIONS AND DISQUALIFICATIONS]
Chapter I-Qualifications for Membership of Parliament
——————–
1. Subs. by Act 47 of 1966, sec. 16, for the previous heading (w.e.f. 14-12-1966).
1[3. Qualification for membership of the Council of States
A person shall not be qualified to be chosen as a representative of any State 2[***] or Union territory in the Council of States unless he is an elector for a Parliamentary constituency in that State or territory.]
——————–
1. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for section 3.
2. The words and brackets “other than the State of Jammu and Kashmir” omitted by Act 47 of 1966, sec. 17 (w.e.f. 14-12-1966).
A person shall not be qualified to be chosen to fill a scat in the House of the People 1[***]. unless-
(a) In the case of a seat reserved for the Scheduled Castes in any State, he is a member of any of the Scheduled Castes, whether of that State or of any other State, and is an elector for any Parliamentary constituency;
(b) In the case of a scat reserved for the Scheduled Tribes in any State (other than those in the autonomous districts of Assam), lie is a member of any of the Scheduled Tribes, whether of the State or of any other State (excluding the tribal areas of Assam), and is an elector for any Parliamentary constituency;
(c) In the case of a seat reserved for the Scheduled Tribes in the autonomous districts of Assam, he is a member of any of those Scheduled Tribes and is an elector for the Parliamentary constituency in which such seat is reserved or for any other Parliamentary constituency comprising any such autonomous district; 2[***]
3[(cc) In the case of the seat reserved for the Scheduled Tribes in the Union territory of 4[Lakshadweep], he is a member of any of those Scheduled Tribes and is all elector for the Parliamentary constituency of that Union territory; 5[***]
6[(ccc) In the case of the seat, allotted to the State of Sikkim, he is an elector for the Parliamentary constituency for Sikkim;]
(d) In the case of any other seat, he is all elector for any Parliamentary constituency.
——————–
1. Certain words omitted by Act 29 of 1975, sec. 12 (w.e.f. 15-8-1975).
2. The word “and” omitted by Act 47 of 1966, sec. 18 (w.e.f. 14-12-1966).
3. Ins. by Act 47 of 1966, sec. 18. (w.e.f. 14-12-1966)-
4. Subs. by the Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Adaptation of Laws Order, 1974 (w.e.f. 1-11-1973).
5. The word “and” omitted by Act 10 of 1976, sec. 2 and Sch. (w.e.f. 9-9-1975).
6. Ins. by Act 10 of 1976, sec. 2 and Sch. (w.e.f. 9-9-1975).
A person shall not be qualified to be chosen lo fill a seat in the Legislative Assembly of a State unless-
(a) In the case of a seat reserved for the Scheduled Castes or for the Scheduled Tribes of that State, he is i member of any of those castes or of those tribes, as the case may be, and is all elector for any Assembly constituency in that State;
(b) In the case of a seat reserved for all autonomous district of Assam, 1[***] he is member of a 2[Scheduled Tribe of any autonomous districts] and is all elector for the Assembly constituency in which such scat or any other scat is reserved for that district; and
(c) In the case of any other seat, lie is all elector for any Assembly constituency in that State:
3[Provided that for the period referred to in clause (2) of article 371A, a person shall not be qualified to be chosen to fill any scat allocated to the Tuensang district in the Legislative Assembly of Nagaland unless lie is a member of the regional council referred to in that article.]
——————–
1. Certain words omitted by the North-Eastern Areas (Reorganisation) (Adaptation of Laws on Union Subjects) Order, 1974 (w.e.f. 21-1-1972).
2. Subs. by Act 47 of 1966, sec. 19, for “Scheduled Tribe of that district” (w.e.f. 14-12-1966).
3. Ins. by Act 27 of 1962, sec. 11
1[Qualification for membership of Legislative Assembly of Sikkim. 2[(1)] Notwithstanding anything contained in section 5, a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State duly constituted under the Constitution) unless-
(a) In the case of a scat reserved for Sikkimese of Bhutia-Lcpcha origin, he is a person either of Bhutia or Lepcha origin and is an elector for any Assembly constituency in the State other than the constituency reserved for the Sanghas;
(b) In the case of a scat reserved for Sikkimese of Nepali origin, he is a person of Nepali origin and is an elector for any Assembly constituency in the State;
(c) In the case of a seat reserved for Scheduled Castes, he is a member of any of the castes specified in the Representation of Sikkim Subjects Act, 1974 and is an elector for any Assembly constituency in the State; and
(d) In the case of a seat reserved for Sanghas, he is an elector of the Sangha constituency.]
3[(2) Notwithstanding anything contained in section 5, a person shall not be qualified to be chosen to fill a scat in the Legislative Assembly of the State of Sikkim, to be constituted at any time after the commencement of the Representation of the People (Amendment) Act, 1980 (8 of 1980), unless-
(a) In the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, he is a person either of Bhutia or Lepcha origin and is and elector for any Assembly constituency in the State other than the constituency reserved for the Sanghas;
(b) In the case of a seat reserved for Scheduled Castes, he is a member of any of those castes in the State of Sikkim and is an elector for any Assembly constituency in the State;
(c) In the case of a seat reserved for Sanghas, he is an elector of the Sangha constituency; and
(d) In the case of any other seat, he is an elector for any Assembly constituency in the State.
Explanation.In this sub-section “Bhutia” includes Chunibipa, Dopthapa ,Dukpa, Kagatey, Sherpa, Tibetan, Tromopa and Yolimo.]
——————–
1. Ins. by Act 10 of 1976, sec. 2 and Sch. (w.e.f 9-9-1975).
2. Section SA renumbered as sub-section (1) of that section by Act 8 of 1980, sec. 3 (w.e.f. 1-9-1979).
3. Ins. by Act 8 of 1980, sec. 3 (w.e.f. 1-9-1979).
(1) A person shall not be qualified to be chosen to fill a scat in the Legislative Council of a State to be filled by election unless he is an elector for any Assembly constituency in that State.
A person shall not be qualified to be chosen to fill a scat in the Legislative Council of a State to be filled by nomination by the Governor 1[***] unless he is ordinarily resident in the State.
——————–
1. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.
1[Chapter III.Disqualifications for Membership of Parliament and State legislatures
——————–
1. Subs. By Act 47 of l966, sec. 20, for Chapter III (w.e.f. 14-2-1966)
In this Chapter,-
(a) “Appropriate Government” means in relation to any disqualification for being chosen as or for being a member of either House of Parliament, the Central Government, and in relation to any disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative Council of a State, the State Government;
(b) “Disqualified” means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.
Section 8. Disqualification on conviction for certain offences
1[(1) A person convicted of an offence punishable under-
(a) Section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171 F (offence of undue influence or personation at an election) or sub-section (l) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or subsection (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) or the Indian Penal Code (45 of 1860), or
(b) The Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the preaching and practice of “untouchability”, and for the enforcement of any disability arising therefrom; or
(c) Section 11 (offence of importing or exporting prohibited goods) or the Customs Act, 1962 (52 of 1962); or
(d) Sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or
(e) The Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) The Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(g) Section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(h) Section 7 (offence of contravention of the provisions of section 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
(i) Section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) or clause (a) of sub-section (2) of section 13 6 (offence of Fraudulently defacing or fraudulently destroying any nomination paper) of this Act; 2[or]
2[(j) Section 6 (offence of conversion of a place or worship) of the Places of Worship (Special Provisions) Act 1991], 3[or]
4[(k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971);] 7[ or]
7[(l) the Commission of Sati (Prevention) Act, 1987(3 of 1988.); or
(m) the Prevention of Corruption Act, 1988;( 49 of 1988) or
(n) the Prevention of Terrorism Act, 2002(15 of 2002.)]
“shall be disqualified, where the convicted person is sentenced to—
(i) only fine, for a period of six years from the date of such conviction;
(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release]
(2) A person convicted for the contravention of-
(a) Any law providing for the prevention of hoarding or profiteering- or
(b) Any law relating to the adulteration of food or drugs; or
(c) Any provisions of the Dory Prohibition Act, 1961 (28 of 1961);
8[* * *]
(3) A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
5[(4)] Notwithstanding anything 6[in sub-section (1). subsection 2 and subsection (3)] a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision Is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.
Explanation. In this section-
(a) “Lawprovidingforthepreveiitionofhoardingorprofitecrilig”meansanylaw,
Or any order, rule or notification having the force of law, providing for-
(i) The regulation of production or manufacture of any essential commodity;
(ii) The control of price at which any essential commodity may be brought or sold;
(iii) The regulation of acquisition, possession, storage, transport, distribution, Disposal, use or consumption of any essential commodity;
(iv) The prohibition of the withholding from sale of any essential commodity Ordinarily kept for sale-,
(b) “Drug” has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of 1940);
(c) “Essential commodity” has the meaning assigned to it in the Essential Commodities Act, 1955 (10 of 1955);
(d) “Food” has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of 1954).
——————–
1. Subs. by Act 1 of 1980, sec. 4, for subsections (1) and (2) (w.e.f. 15-3-1989)
2. Ins. by Act 42 of 1991, sec. 8 (w.e.f. 18-9-1991).
3. Added by Act 21 of 1996, sec. 3 (w.e.f. 1-9-1996).
4. Ins. by Act 21 of 1996, sec. 3 (w.e.f 1-8-1 996).
5. Sub-section (3) renumbered as sub-section (4) by Act 1 of 1989, sec. 4 (w.e.f. 15-3-1989).
6. Subs. by Act I of 1989, sec. 4, for “in sub-section (1) and sub-section (2)” (w.e.f. 15-3-1999)
7. Inserted By Act 9 of 2003(dt.7-1-2003).
8. Clause “d” Omitted By Act 9 of 2003 (dt. 7-1-2003).
1Disqualification on ground of corrupt practices. (1) The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted, 2[as soon as may be within a period of three months from the date such order takes effect], by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period:
Provided that the period for which any person may be disqualified under this subsection shall in no case exceed six years from the date on which the order made in relation to him under section 99 takes effect.
(2) Any person who stands disqualified under section 8A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), may, if the period of such disqualification has not expired, submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period.
(3) Before giving his decision on any question mentioned in sub-section (1) or on any petition submitted under sub-section (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion.]
——————–
1. Subs. by Act 40 of 1975, sec. 2.
2. Subs. by Act 41 of 2009 w.e.f. 22.12.2009.
(1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal.
(2) For the purposes of sub-section (1), a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of a State, has or has not been dismissed for corruption or for disloyalty to the State shall be conclusive proof of that fact:
Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty to the State shall be issued unless all opportunity of being heard has been given to the said person.
A person shall be disqualified if, and torso long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government.
Explanation. For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part.
A person shall be disqualified if and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the capital of which the appropriate Government has not less than twenty-five percent share. .
If the Election Commission is satisfied that a person-
(a) Has failed to lodge an account of election expenses, within the time and in the manner required by or under this Act, and
(b) Has no good reason or justification for the failure,
The Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.
The Election Commission may, for reasons to be recorded, remove any disqualification under this Chapter 1[(except under section 8A)] or reduce the period of any such disqualification.
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1. Ins. by Act 40 of 1975, sec. 3.
1[(1)] If any person, after the commencement of this Act,-
2[***] is convicted of an offence punishable under section 171E or section 171 F of the Indian Penal Code (45 of 1860), or under section 125 or section 135 or clause (a) of subsection (2) of section 136 of this Act,
3[***]
He shall, for a period of six years from the date of the conviction or from the date on which the order takes effect, be disqualified for voting at any election.
4(2) Any person disqualified by a decision of the President under sub-section (1) of section 8A for any period shall he disqualified for the same period for voting at any election.
(3) The decision of the President on a petition submitted by any person under subsection (2) of section 8A in respect of any disqualification for being chosen as, and for being, a member of either House of’ Parliament or of the Legislative Assembly or Legislative Council of a State shall, so for as may be, apply in respect of the disqualification for voting at any election incurred by him under clause (b) of sub-section (1) of section IIA of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), as if such decision were a decision in respect of the said disqualification for voting also.]
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1. Section IIA renumbered as subsection (1) of that section by Act 40 of 1975, sec.
2. The brackets and letter “(a)” omitted by Act 38 of 1978, sec. 3 and the Second Schedule.
3. the word “or” omitted by Act 38 of 1978, sec. 3 and the Second Schedule.
4 Clause (b) omitted by Act 40 of 1975, see. 4.
The Election Commission may, for reasons to be recorded, remove 1[any disqualification under subsection (1) of section IIAI.]
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1. Subs. by Act 40 of 1975, sec. 5, for certain words.
NOTIFICATION OF GENERAL ELECTIONS
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1. Subs. by Act 27 of 1956, sec. 7, for Part III (sections 12 to 18).
For the purpose of filling the seats of members of the Council of States retiring on the expiration of their term of office the President shall by one or more notifications published in the Gazette of India on such date or dates as may be recommended by the Election Commission, call upon the elected members of the Legislative Assembly or as the case may be, the members of the electoral college, of each State concerned to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:
Provided that no notification under this section shall be issued more than three months prior to the date on which the term of office of the retiring members is due to expire.
1[Notification for election to rill the seat allotted to the State of Sikkim in the Council of States. For the purpose of filling for the first time the seat allotted to the State of Sikkim by the Constitution (Thirty-sixth Amendment) Act, 1975 in the Council of States, the President shall, by notification published in the Gazette of India, on such date as may be recommended by Election Commission, call upon the elected members of the Legislative Assembly of the State of Sikkim to elect a member in accordance with the provisions of this Act and of the rules and orders made thereunder and the election so held shall for all purposes and intent be deemed to have been held under section 12.]
——————–
1. Ins. by Act 10 of 1976, sec. 2 and Sch. (w.e.f. 9.9.1975).
Rep. by the Territorial Councils Act, 19-56 (10-3 of 1956), sec. 661
(1) A general election shall be held for the purpose of constituting a new House of the People on the expiration of the duration of the existing House or on its dissolution.
(2) For the said purpose the President shall, by one or more notifications published in the Gazette of India on such date or dates as may be recommended by the Election Commission call upon all Parliamentary constituencies to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:
Provided that where a general election is held otherwise than on the dissolution of the existing House of’ the People, no such notification shall he issued at any time earlier than six months prior to the date on which the duration of that House would expire under the provisions of clause (2) of article 83.
1Notification for electing the representative of the State or Sikkim to the existing House of the People. For the purpose of electing a representative of the State of Sikkim to the House of the People, specified in clause (e) of article 371F of the Constitution, the Election Commission shall call upon the members of the Legislative Assembly of the State of Sikkim to elect the representative in accordance with such of the provisions of this Act, and the rules and orders make thereunder, as are applicable to the election of the members of the Council of States.]
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1. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.
(1) A general election shall be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution.
(2) For the said purpose, 1[the Governor or Administrator, as the case may be], 2[* * *] shall by one or more notifications published in the Official Gazette of the State on such date or dales may be recommended by the Election Commission, call upon all Assembly constituencies in the State to elect members in accordance with the provisions of this Act and of the rules and order made thereunder:
Provided that where a general election is held otherwise than on the dissolution of the existing Legislative Assembly, no such notification shall be issued at any time earlier than six months prior to the date on which the duration of that Assembly would expire under the provisions of clause (I) of article 171 2[***] 3[or under the provisions of section 5 of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be.]
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1. Subs. by Act 20 of 1963, sec. 57 and the Second Schedule for “the Governor”.
2. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.
3. Ins. by Act 20 of 1963, sec. 57 and the Second Schedule.
1[Notification for certain elections to Legislative Councils. For the purpose of constituting the Legislative Council of the State of Madhya Pradesh under the State Reorganisation Act, 1956 (37 of 1956) and constituting the Legislative Council of the State of Andhra Pradesh under the Legislative Councils Act, 1957 (37 of 1957), the Governor of each of the aforesaid States shall, by one or more notifications published in the Official Gazette of the State on such date or dates as may be recommended by the Election Commission, call upon the members of the Legislative Assembly of the State and all the Council constituencies to elect members in accordance with the provisions of’ this Act and of the rules and orders made thereunder.]
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1. Ins. by Act 37 of 1957, sec. 13.
For the purpose of filling the seats of members of the Legislative Council of a State retiring on the expiration of their term of office, the Governor 1[***] shall, by one or more notifications published in the Official Gazette of the State on such date or dates as may be recommended by the Election Commission call upon the members of the Legislative Assembly of the State and all the Council constituencies concerned to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:
Provided that no notification under this section shall be issued more than three months prior to the date on which the term of office of the retiring members is due to expire.]
——————–
1. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.
In this Part and in Part V, unless the context otherwise requires, “constituency” means 1[***] a Parliamentary constituency or an Assembly constituency or a Council constituency
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1. Certain words omitted by Act 103 of 1956, sec. 66.
1Delegation of functions of Election Commission. The functions of the Election Commission under the Constitution, the Representation of the People Act, 1950 (43 of 1950) and this Act or under the rules made thereunder may, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, be performed also by a Deputy Election Commissioner or by the Secretary to the Election Commission.]
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1. Ins. by Act 47 of l966, sec. 21 (w.e.f 14-12-1966).
1[General duties of chief electoral officers. Subject to the superintendence, direction and control of the Election Commission, the chief electoral officer of each State shall supervise the conduct of all elections in the State under this Act.
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1. Subs. by Act 27 of 1956, sec. 9, for sections 20 and 21.
1[General duties of district election officer. (1) Subject to the superintendence, direction and control of the chief electoral officer, the district election officer shall co-ordinate and supervise all work in the district or in the area within his jurisdiction in connection with the conduct of all elections to parliament and the Legislature of the State
(2) The district election officer shall also perform such other functions as may be entrusted to him bv the Election Commission and the chief electoral officer.]
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1. Ins. by Act 47 of 1966, sec. 22 (w.e.f 14-12-1966).
1[Observers. (1) The Election Commission may nominate an Observer who shall be an officer of Government to watch the conduct of election or elections in a constituency or a group of constituencies and to perform such other functions as may be entrusted to him by the Election Commission.
(2) The Observer nominated under sub-section (1) shall have the power to direct the retuning officer for the constituency or for any of the constituencies for which he has been nominated, to stop the counting of votes at any time before the declaration of the result or not to declare the result if in the opinion of the Observer booth capturing has taken place at a large number of polling stations or at places fixed for the poll or counting of votes or any ballot papers used at a polling station or at a place fixed for the poll are unlawfully taken out of the custody of the returning officer or are accidentally or intentionally destroyed or lost or are damaged or tampered with to such an extent that the result of the poll at that polling station or place cannot be ascertained.
(3) Where an Observer has directed the returning officer under this section to stop counting of votes or not to declare the result, the Observer shall forthwith report the matter to the Election Commission and thereupon the Election Commission shall, after taking all material circumstances into account, issue appropriate directions under section 58A or section 64A or section 66.
Explanation. For the purposes of sub-section (2) and sub-section (3) “Observer” the shall include a Regional Commissioner or any such officer of the Election Commission as has been assigned under this section the duty of watching the conduct of election or elections in a constituency or group of constituencies by the Commission.]
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1. Ins. by Act 21 of’ 1996, sec. 4 (w.e.f 1-8-1996)
For every constituency, for every election to fill a sea or seats in the Council of States and for every election by the members of the Legislative Assembly of a State to fill a seat or seats in the Legislative Council of the State, the Election Commission shall, in consultation with the Government of the State, designate or nominate a returning officer who shall be 1[an officer of Government or of a local authority]:
Provided that nothing in this section shall prevent the Election Commission from designating or nominating the same person to be the returning officer for more than one constituency.
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1. Subs. by Act 47 of 1966, sec. 23, for “an officer of Government”.
(1) The Election Commission may appoint one or more persons to assist any returning officer in the performance of his functions:
Provided that every such person shall be 1[an officer of Government or of a local authority]
(2) Every assistant returning officer shall, subject to the control of the returning officer, be competent to perform all or any of the functions of the returning officer-.
Provided that no assistant returning officer shall perform any of the functions of the returning officer which relate 3[***] to the scrutiny of nominations 2[***] unless the returning officer is unavoidably prevented from performing the said function
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1. Subs. by Act 47 of 1966, sec. 24, for “an officer of Government”.
2. Certain words omitted by Act 27 of 1956, sec. 10.
3. The words “or to the counting of votes” omitted by Act 27 of 1956, sec. 10.
References in this Act to the returning officer shall, unless the context otherwise requires, be deemed to include an assistant returning officer performing any function which he is authorized to perform under sub-section (2) of section 22.
It shall be general duty of the returning officer at any election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by this Act and rules or orders made there under
1[Provision of polling stations for constituencies. The district election officer shall, with the previous approval of the Election Commission, provide a sufficient number of polling stations for every constituency the whole or greater part of which lies within his jurisdiction, and shall publish, such manner as the Election Commission may direct, a list showing the polling stations so provided and the polling areas or groups of voters for which they have respectively been provided.]
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1. Subs. by Act 47 of 1966, sec. 25, for section 25 (w.e.f. 14-12-1966).
(1) The 1[district election officer] shall appoint a presiding officer for each polling station and such polling officer or officers as he thinks necessary, but he shall not appoint any person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election:
Provided that if a polling officer is absent from the poll’ station, the presiding officer may appoint any person who is present at the polling station other than a person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election, to be the polling officer during the absence of the former officer, and inform the 1[district election officer] accordingly:
3[Provided further that nothing in this sub-section shall prevent that 4[district election officer] from appointing the same person to be the presiding officer for more than one polling station in the same premises.]
(2) A polling officer shall, if so directed by the presiding officer, perform all or any of the function of a presiding officer under this Act or any rules or orders made thereunder.
(3) If the presiding officer, owing to illness or other unavoidable cause, is obliged to absent himself from the polling station, his functions shall be performed by such polling officer as has been previously authorised by the 4[district election officer] to perform such functions during any such absence.
(4) References in this Act to the presiding officer shall, unless the contest otherwise requires, be deemed to include any person performing ally function which he is authorised to perform under subsection (2) or sub-section (3), as the case may be.
5[(5) Any reference to a district election officer in section 25 and in this section shall, in relation to a constituency in a Union territory, be construed as a reference to the returning officer for that constituency]
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1. Subs. by Act 47 of 1966, sec. 26, for “returning officer” (w.e.f 14-12-1966).
3. Ins. by Act 27 of 1956, sec. 12.
4. Subs. By Act 47 of 1966, sec 26, for “returning officer” (w.e.f. 14-12-1966)
5. Ins. by Act 47 of 1966, sec. 26 (w.e.f. 14-12-1966).
It shall be the general duty of the presiding officer at a polling station to keep order thereat and to see that the poll is fairly taken.
It shall be the duty of the polling officers at a polling station to assist the presiding officer for such station in the performance of his frictions.
1[Returning officer, presiding officer, etc., deemed to be on deputation to Election Commission. The returning officer, assistant returning officer, presiding officer, polling officer and an other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.]
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1. Ins. by Act I of 1989, sec. 5 (w.e.f. 15-3-1989).
(1) The returning officer for an election 1[***] to fill a seat or seats in the Council of States or for an election by the members of the Legislative Assembly of a State to fill a seat or scats in the Legislative Council of the State shall with the previous approval of the Election Commission, fix the place at which the poll will be taken for such election and shall notify the place so fixed in such manner as the Election Commission may direct.
(2) The returning officer shall preside over such election at the place so fixed and shall appoint such polling officer or officers to assist him as he thinks necessary but he shall not appoint any person who has been employed by or on behalf of, or has been otherwise working for. a candidate in or about the election.
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1. Certain words omitted by Act 27 of 1956, sec. 13.
REGISTRATION OF POLITICAL PARTIES
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1. Ins. by Act I of 1989, sec. 6 (w.e.f. 15-6-1989).
(1) Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of this Part shall make an application to the Election Commission for its registration as a political party for the purposes of this Act.
(2) Every such application shall be made,-
(a) If the association or body is in existence at the commencement of the Representation of the People (Amendment) Act, 1988 (1 of 1989), within sixty days next following such commencement;
(b) If the association or body is formed after such commencement, within thirty days next following the date of its formation.
(3) Every application under subsection (1) shall be signed by the chief executive officer of the association or body (whether such chief executive officer is known as Secretary or by any other designation) and presented to the Secretary to the Commission or sent to such Secretary by registered post.
(4) Every such application shall contain the following particular, namely:-
(a) The name of the association or body;
(b) The State in which its head office is situate;
(c) The address to which letters and other communications meant for it should be sent;
(d) The names of its president, secretary, treasurer and other officer-bearers;
(e) The numerical strength of its members, and if there are categories of its members, the numerical strength in each category;
(f) Whether it has any local units; if so, at what levels;
(g) Whether it is represented by any member or members in either House of Parliament or of any State Legislature; if so, the number of such member or members.
(5) The application under subsection (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.
(6) The Commission may call for such other particulars as it may deem fit from the association or body.
(7) After considering all the particulars as a foresaid in its possession and any other necessary and relevant factors and after giving the representatives of the association or body reasonable opportunity of being heard, the Commission shall decide either to register the association or body as a political party for the purposes of this Part, or not so to register it; and the Commission shall communicate its decision to the association or body:
Provided that no association or body shall be registered as a political party under
This sub-section unless the memorandum or rules and regulations of such association or body conform to the provisions of sub-section (5).
(8) The decision of the Commission shall be final.
(9) After an association or body has been registered as apolitical party as aforesaid, any change in its name, head office, office-bearers, address or in any other material matters shall be communicated to the Commission without delay.
1[Appointment of dates for nominations, etc. As soon as the notification calling upon a constituency to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint-
(a) The last date for making nominations, which shall be the 2[seventh day] after the date of publication of the first mentioned notification or if that day is a public holiday, the next succeeding day which is not a public holiday;
(b) The date for the scrutiny of nominations, which shall be 3[the day immediately following] the last date for making nominations or, if that day is public holiday, the next succeeding day which is not a public holiday;
(c) The last date for the withdrawal of candidatures, which shall be 4[the second day] after the date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day that is not a public holiday;
(d) The date or dates on which a poll shall, if necessary, be taken which or the first of which shall be a date not earlier than the 5[fourteenth day] after the last date for the withdrawal of candidatures, and
(e) The date before which the election shall be completed.
6[***]
——————–
1. Subs. by Act 27 of 1 956, sec. 14, for section 30.
2. Subs. by Act 40 of 1961, sec. 7, for “tenth day” (w.e.f 20-9-1961).
3. Subs. by Act 47 of’ 1966, sec. 27, for “the second day after” (w.e.f 14-12-1966)
4. Subs. by Act 47 of’ 1966, sec. 27, for “the third day” (w.e.f. 14-12-1966)
5. Subs. by Act 21 of 1996, sec. 5 (w.e.f 1-8-1996).
6. Explanation omitted by Act 47 of 1966, sec. 27 (w.e.f 14-12-1966).
On the issue of a notification under section 30 the returning 1[***] shall give public notice of the intended election in such form and manner as may be prescribed, inviting nominations of candidates for such election and specifying the place at which the nomination papers are to be delivered.
——————–
1. The words “for the constituency” omitted by Act 47 of 1966, sec. 28 (w.e.f 14-12-1966).
Any person may be nominated as a candidate for election to fill a seat 1[***] if he is qualified to be chosen to fill that seat under the provisions of Constitution and this Act 2[***] 3[or under the provisions of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be].
——————–
1. The words “in any constituency” omitted by Act 27 of 1956- sec. 15.
2. Certain words ins. by Act 27 of l956, sec 15 and omitted by the Adaptation of Laws (No. 2) Order, 1956.
3. Ins. by Act 20 of’ 1963, sec. 57 and Second Sch
1[Presentation of nomination paper and requirements for a valid nomination. (1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer between the hours of eleven O’clock in the forenoon and three O’clock in the afternoon deliver to the returning officer at the place specified in the behalf in the notice issued under section 3l a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer-.
2[Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposes being electors of the constituency:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday:
Provided also that in the case a local authorities constituency, graduates’ constituency or teachers’ constituency, the reference to “an elector of the constituency as proposer” shall be construed as a reference to ten per cent of the electors of the constituency or ten such electors., whichever is less, as proposes.]
3[(1A) Notwithstanding anything contained in sub-section (1), for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State only constituted under the Constitution), the nomination paper to be delivered to the returning officer shall be in such form and manner as may be prescribed:
Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and-
(a) In the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, also by at least twenty electors of the constituency as proposes and twenty electors of the constituency as scolders;
(b) In the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposes and at least twenty electors of the constituency as seconders;
(c) In the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the constituency as proposer:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday]
(2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.
(3) Where the candidate is a person who, having held any office referred to in 4[section 9] has been dismissed and a period of five years has not elapsed since the dismissal. such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued ‘in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.
(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper arc the same as those entered in the electoral rolls:
5[Provided that no misnomer or inaccurate description or clerical technical or printing error in regard to the name of the candidate or his proposer or any other person., or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper. shall affect the full operation of the electoral roll or the nomination. paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood, and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or In the nomination paper shall be overlooked.]
(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall- unless it has been filed along with the nomination paper, be produced before the return officer at the time of scrutiny.
6[(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper :
Provided that not more than four nomination papers shall be presented bv or on behalf of any candidate or accepted by the retuning officer for election in the same constituency
7[(7) Notwithstanding, anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election,-
(a) In the case of a general election to the House of the People (whether or not field simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;
(b) In the case of general election to the Legislative Assembly of a State (whether or not hold simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State,.
(c) In the case of a general election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State;
(d) In the case of a biennial at election to the Council of States for filling o or more seats allotted to a State, for filling more than two such seats,
(e) In the case of bye-elections to the House of the People from two or more Parliamentary constituencies which are held simultaneously-from more than two such Parliamentary constituencies-,
(f) In the case of bye-elections to the Legislative Assembly of a State from or more Assembly constituencies which arc held simultaneously, from more than two such Assembly constituencies-,
(g) In the case of bye-elections to the Council of States for filling two or more scats allotted to a State which are held simultaneously, for filling more than two such scats”
(h) In the case of bye-elections to the Legislative Council of a State having such Council from two or more Council constituencies, which are held simultaneously, from more than two such Council constituencies.
Explanation. For the purpose of this sub-section, two or more bye-elections shall be deemed to be held simultaneously where the notification calling such bye-elections are issued by the Election Commission under sections 147, 149, 150 or, as the case may be, 151 on the same date.
——————–
1. Subs. by Act 27 of 1956, sec. 16, for section 3.
2. Subs. by Act 21 of 1996, sec. 6 (w.e.f. 1-8-1996).
3. Ins. by Act 10 of l976, sec. 2 and Sch. (w.e.f. 9-9-1975).
4. Subs. by Act 38 of 1978, sec. 3 and the Second Schedule, for “Clause (f) of section 7”.
5. Subs. by Act 47 of 966, sec. 29, for the proviso (w.e.f.14-12-1966).
6. Subs. by Act 40 of’ 1961, sec. 8, for subjection (6) (w.e.f. 20-9-1961)
7. Ins. by Act 21 of 1996, sec. 6 (w.e.f’, 1-8-1996).
1[(1) A candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited, -
(a) In the case of all election from a Parliamentary constituency, 3[a sum of twenty-five thousand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of twelve thousand five hundred rupees]; and
(b) In the case of an election from all Assembly or Council constituency, 4[a sum of ten thousand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of five thousand rupees]-.
Provided that where a candidate has been nominated by more than one nomination paper for election in the same constituency, not more than one deposit shall be required of him under this sub-section.]
(2) Any sum required to be deposited under sub-section (1) shall not be deemed to have been deposited under that subsection unless at the time of deliver of the nomination paper 2[under subsection (1) or, as the case may be, sub-section (IA) of section 33] the candidate has either deposited or caused to be deposited that sum with the returning officer in cash or enclosed with the nomination paper a receipt showing that the said sum has been deposited by him or on his behalf in the Reserve Bank of India or in a Government Treasury
——————–
1. Sub-section (3) was subs. bv Act 27 of 1956, sec. 17 and again subs. by Act 21 of 1996, sec. 7 (w.e.f. 1-8-1996).
2. Subs. by Act 10 of 1976, sec. 2 and Sch., for certain words (w.e.f. 9-9-1 975).
3. Subs. by Act No. 41 of 2009 w.e.f. 22.12.2009.
4. Subs. by Act No. 41 of 2009 w.e.f. 22.12.2009.
The returning officer shall, on receiving the nomination paper 1[under subsection (1) or, as the case may, be, sub-section (I A) of section 33], inform the person or persons delivering the same of the date. time and place fixed for the scrutiny of nominations and shall enter on the nomination paper its serial number and shall sign thereon a certificate stating the date on which and the hour at which the nomination paper has been delivered to him, and shall as soon as may be thereafter, cause to be affixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper., both of the candidate and or 2[the proposer].
——————–
1. Subs. by Act 27 of 1 956, sec. 18, for certain words.
2. The words “and one seconded” omitted by, Act 27 of l956, sec. 19.
(1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents one proposer 1[***] of each candidate and one other person duly a in writing by each candidate but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary 2[reject] any nomination on any of the following grounds
3 [(a) 4[that on the date fixed for the scrutiny of nominations the candidate] either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely: -
Articles 84, 102, 173 and 191,] 5[* * *]
6[Part II of this s Act and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963)] 7[***]; or
(b) That there has been a failure to comply with any of the provisions of section 33 or section 34; or
(c) That the signature of the candidate or the proposer on the nomination paper is riot genuine.
(3) Nothing contained in 8[clause (b) or clause (c)] of sub-section (2) shall be deemed to authorise the 9[rejection] of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.
(4) The returning officer shall not reject any nomination paper on the ground of any 10[***] defect which is not of a substantial character.
(5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:
Provided that in case 11[an objection is raised by the returning officer or is made by Any other person] the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.
(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.
12[(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elect or for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.]
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1. The words “and one seconded” omitted by, Act 27 of l956, sec. 19.
2. Subs. by Act 27 of 1 956 sec. 19, for “refuse”.
3. Subs. by Act 27 of 1956, sec. 19, for clause (a) to (e).
4. Subs. by, Act 40 of 1961, sec. 9, for “that the candidate” (w.e.f. 20-9-1961).
5. The word “and” ins. by the Adaptation of Laws (No. 2) Order, 1956 and omitted by Act 20 of 1963, sec. 57 and the First Sch.
6. Subs. By Act of 1963, sec 57 and the Second Sch, for certain words.
7. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.
8. Subs. by Act 27 of 1956, sec. 19, for “clause (c), clause (d) or clause (e).
9. Subs. by Act 27 of 1956, sec. 19, for “refusal”.
10. The word “technical” omitted by Act 27 of 1956, sec. 19.
11. Subs. by Act 40 of 1961, sec. 9, for “an objection is made” (w.e.f 20-9-196 ).
12. Subs. by Act 27 of 1956, sec. 19, for sub-section (7).
(1) Any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed and shall be subscribed by him and delivered before three O’clock in the afternoon on the day fixed under clause (c) of section 30 to the returning officer either by such candidate in person or by his proposer, 1[***] or election agent who has been authorised in this behalf in writing by such candidate.
1[* * *]
(2) No person who has given a notice or withdrawal of his candidature under subsection (1) shall be allowed to cancel the notice.
2[(3) The returning officer shall, on being satisfied as to the genuineness of a notice or withdrawal and the identity of the person delivering under sub-section (1), cause the notice to be affixed in some conspicuous place in his office.]
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1. The word “seconded” and the proviso omitted by Act 27 of 1956, sec. 20.
2. Subs. by Act 40 of’ 1961, sec. 10, for sub-section (3) (w.e.f 20-9-1961)
1[Publication of list of contesting candidates. (1) Immediately after the expiry of the period within which candidatures may be withdrawn under sub-section (1) of section 37, the returning officer shall prepare and publish in such form and manner as may be prescribed a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period.
2[(2) For the purpose of listing the -names under sub-section (1), the candidates shall be classified as follows, namely: -
(i) Candidates of recognised political parties;
(ii) Candidates of registered political parties other than those mentioned in clause
(iii) Other candidates.
(3) The categories mentioned in sub-section (2) shall be arranged in the order specified therein and the names of candidates in each category shall be arranged in alphabetical order and the addresses of the contesting candidates as given in the nomination papers together with such other particulars as may be prescribed].]
——————–
1. Subs. by Act 27 of 1956, sec. 21, for section 38.
2. Subs. by Act 21 of 1996, sec, 8, for sub-section (2) (w.e.f 1-8-1996).
1[Nomination of candidates at other elections. (1) As soon as the notification calling upon the elected members or the members of the Legislative Assembly of a State or the members of the electoral college of a 2[Union territory] to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint-
(a) The last date for making nominations, which shall be the 3[seventh day] after the date of publication of the first-mentioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday;
(b) The date for the scrutiny of nominations, which shall be 4[the day immediately following] the last date for making nominations or if that day is a public holiday, the next succeeding day -which is not a public holiday;
(c) The last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of nominations or if that day is a public holiday, the next succeeding day which is not a public holiday-,
(d) The date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the seventh day after the last date for the withdrawal of candidatures; and
(e) The date before which the election shall be completed.
5[***]
(2) The provisions of sections 31 to 38, excluding subsections (2) and (5) of section 33 and 6[clause (a) of subsection (1) of section 34], shall apply in relation to any such election as they apply in relation to an election in any constituency:
Provided that-
(a) Any references in the said provisions to the electoral roll of the constituency shall unless the context otherwise requires, be construed, in the case of an election by the member or the elected members of the Legislative Assembly of the State, as references to the list of members of elected members, as the case may be, of that Assembly maintained under sub-section (1) of section 152, and in the case of an election by the members of the electoral college of a 7[Union territory], as references to the list of members of such electoral college maintained under subsection (2) of that section;
8[(aa) The reference in the opening paragraph of subsection (1) of section 33 to “an elect or of the constituency as proposer shall be construed as a reference to “ten percent. of the elected members or of the members of the Legislative Assembly of a State or of the members of the electoral college of a Union territory, as the case may be, or ten members concerned, whichever is less, as proposers”:
Provided that where as a result of a calculation of the percentage referred to in this clause, the number of members arrived at is a friction and if the fraction so arrived at is more than one-half it shall be counted as one, and if the fraction so arrived at is less than one half it shall be ignored;]
9[10[(ab) In the case of a election to the Legislative Council pf a State by the members pf the Legislative Assembly of that State, clause (a) of sub-section (2) of section 36 shall be construed as including a reference to sub-clause (d) of clause (3) of article 171;]
(b) Any references in the said provisions to section 30 shall be construed as references to subsection (1) of this section; and
(c) At the time of presenting the nomination paper, the returning officer may require the person presenting the same to produce either a copy of the electoral roll, or part of the electoral roll, in which the name of the candidate is included or the certified copy of the relevant entries in such roll.]
——————–
1. Subs. by Act 27 of 1956, sec. 22, for section 39.
2. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “Part C State”.
3. Subs. by Act 40 of 1961, sec. 11, for “tenth day” (w.e.f. 20-9-196 1).
4. Subs. by Act 47 of 1966, sec. 30, for “the second day after” (w.e.f 14-12-1966).
5. Explanation omitted by Act 47 of 1966, sec. 30 (w.e.f. 14-12-1966)
6. Subs. by Act 58 of 1958, sec. 19, for “section 34”.
7. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “Part C State”.
8. Ins. by Act I of 1989, sec. 8 (w.e.f. 1-4-1989).
9. Ins. by Act 47 of 1966, sec. 30 (w.e.f. 14-12-1966).
10. Clause (aa) relettered as clause (ab) by Act I of 1989, sec. 8 (w.e.f. 1-4-1989).
1[Election agents. A candidate at an election may appoint in the prescribed manner any one person other than himself to be his election agent and when any such appointment is made, notice of the appointment shall be given in the prescribed manner to the returning officer.]
——————–
1. Subs. by Act 27 of 1956, sec. 23, for section 40.
1[Disqualification for being an election agent. Any person who is for the time being disqualified under the Constitution or under this Act for being a member of either House of Parliament or the House or either House of the Legislature of a State or for voting at elections, shall, so long as the disqualification subsists, also be disqualified for being an election agent at any election.]
——————–
1. Subs. by Act 47 of 1966, sec. 31, for section 41 (w.e.f. 14-12-1966).
(1) Any revocation of the appointment of an election agent, 1[***] shall be signed by the candidate, and shall operate from the date on which it is lodged with the returning officer.
2[(2) In the event of such a revocation or of the death of an election agent whether that event occurs before or during the election, or after the election but before the account of the candidate’s election expenses has been lodged in accordance with the provisions of section 78, the candidate may appoint in the prescribed manner another person to be his election agent and when such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer.]
——————–
1. Certain words omitted by Act 27 of 1956 sec. 24.
2. Subs. by Act 27 of 1956, sec. 24, for sub-section (2).
Rep. by the Representation of the People (Second Amendment) Act, 19-56 (27 of 1956), sec. 25
Rep. by the Representation of the People (Second Amendment Act, 1956 (27 of 19-56), sec. 25
1Functions of election agents. An election agent may perform such functions in connection with the election as are authorised by or under this Act to be performed by an election agent.]
——————–
1. Subs. by Act 27 of 1956, sec. 26, for section 45.
1[Appointment of polling agents. A contesting candidate or his election agent may appoint in the prescribed manner such number of agents and relief agents as may be prescribed to act as polling agents of such candidate at each polling station provided under section 25 or at the place fixed under subsection (1) of section 29 for the poll.]
——————–
1. Subs. by Act 27 of 1056, sec. 27, for section 46.
1[Appointment or counting agents. A contesting candidate or his election agent may appoint in the prescribed manner one or more persons, but not exceeding such number as may be prescribed, to the present as his counting agent or agents at the counting of votes, and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer.]
——————–
1. Subs. by Act 27 of 1956, sec. 28, for section 47.
(1) Any revocation of the appointment of a polling agent shall be signed by the candidate or his election agent and shall operate from the date on which it is lodged with such officer as may be prescribed, and in the event of such a revocation or of the death of a polling agent before the close of the poll, the candidate or his election agent may appoint in the prescribed manner another polling agent at any time before the poll is closed and shall forthwith give notice of such appointment in the prescribed manner to such officer as may be prescribed.
(2) Any revocation of the appointment of a counting agent shall be signed by the candidate or his election agent and shall operate from the date on which it is lodged with the returning officer, and in the event of such revocation or of the death of a counting agent before the commencement of the counting of votes, the candidate or his election agent may appoint in the prescribed manner another counting agent at any time before the counting of votes is commenced and shall forthwith give notice of such appointment in the prescribed manner to the returning officer.
(1) A polling agent may perform such functions in connection with the poll as are authorised by or under this Act, to be performed by a polling agent.
(2) A counting agent may perform such functions in connection with the counting of votes as are authorised by or under this Act to be performed by a counting agent.
(1) At every election where a poll is taken, each 1[contesting candidate] at such election and his election agent shall have a right to be present at any polling station provided under section 25 for the taking of the poll or at the place fixed under sub-section (1) of section 29 for the poll.
(2) A 1[contesting candidate] or his election agent may himself do any act or thing which any polling agent or the counting agent of such 1[contesting candidate] if appointed, would have been authorised by or under this Act to do, or may assist any polling agent or the counting agent of such 1[contesting candidate] in doing any such act or thing.
——————–
1. Subs. by Act 58 of 1958, sec. 20, for “candidate”.
Where any act or thing is required or authorised by or under this Act to be done in the presence of the polling or counting agents, the non-attendance of any such agent or agents at the time and place appointed for the purpose shall not, if the act or thing is otherwise duly done, invalidate the act or thing done.
1[Death of a candidate of a recognised political party before poll. (1) If a candidate set up by a recognised political party, -
(a) Dies at any time after 11.00 A.M. on the last date for making nominations and his nomination is found valid on scrutiny under section 36, or
(b) Whose nomination has been found valid on scrutiny under section 36 and who has not withdrawn his candidature under section 37, dies,
And in either case, a report of his death is received at any time before the publication of the list of contesting candidates under section 38; or
(c) Dies as a contesting candidate and a report of his death is received before the commencement of the poll,
The returning officer shall, upon being satisfied about the fact of the death of the candidate, by order, announce an adjournment of the poll to a date to be notified later and report the fact to the Election Commission and also to the appropriate authority:
Provided that no order for adjourning a poll should be made in a case referred to in clause (a) except after the scrutiny of all the nominations including the nomination of the deceased candidate.
(2) The Election Commission shall, on the receipt of a report from the returning officer under sub-section (1), call upon the recognised political party, whose candidate has died, to nominate another candidate for the said poll within seven days of issue of such notice to such recognised political party and the provisions of sections 30 to 37 shall, so far as may be, apply in relation to such nomination as they would apply to other nominations:
Provided that no person -who has given a notice of withdrawal of his candidature under sub-section (1) of section 37 before the adjournment of the poll shall be ineligible for being nominated as a candidate for the election after such adjournment.
(3) Where a list of contesting candidates had been published under section 38 before the adjournment of the poll under subsection (1), the returning officer shall again prepare and publish a fresh list of contesting candidates under that section so as to include the name of the candidate who has been validly nominated under sub-section (2).
Explanation For the purposes of this section, sections 33 and 3 8, “recognised political party”, means apolitical party recognised by the Election Commission under the Election Symbols (Reservation and Allotment) Order, 1968.]
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1. Section 52 was subs. by Act 2 of 1992 , sec. 2 and again subs. by Act 21 of 1996, sec. 9 (w.e.f 1-8-1996).
1[(1) If the number of contesting candidates is more than the number of seats to be filled. a poll shall be taken.]
(2) If the number of such candidates is equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected to fill those seats.
(3) If the number of such candidates is less than the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be elected and the 2[Election Commission] shall by notification in the Official Gazette call upon the constituency or the elected members or the members of the State Legislative Assembly or the members of the electoral college concerned 3[* * *] as the case may be, to elect a person or persons to fill the remaining seat or seats 4[***] :
Provided that where the constituency or the elected members or the members of the State Legislative assembly or the members of the electoral college 3[***] having already been called upon under this subsection, has or have failed to elect a person or the requisite member of persons, as the case may be, to rill the vacancy or vacancies, the 2[Election Commission shall not be bound to call again upon the constituency, or such members to elect a person or persons 5[until it is satisfied that if called upon again, there will be no such failure on the part of the constituency of such members].
——————–
1. Subs. by Act 27 1956, sec. 30, for sub-section (1).
2. Subs. try Act 27 (if 1956, sec. 30, for “appropriate authority”.
3. Certain words omitted by Act 49 of 1951, sec. 44 and the Fifth Schedule.
4. Certain words omitted by Act 27 or 1956, sec. 30.
5. Subs. by Act 27 of 1956, sec. 30, for., until such date as the Election Commission may specify in this behalf’.
Rep. by there Representation of the people (Amendment) Act, 1961 (40 of 1961), sec. 12 (w.e.f 20-9-1961)
For the avoidance of doubt it is hereby declared that a member of the Scheduled Castes or of the Scheduled Tribes shall not be disqualified to hold a seat not reserved for member, of those castes or tribes, if lie is otherwise qualified to hold such seats under the Constitution and this Act 1[or under the Government of Union Territories Act, 1963 (120 of 1963), as the case may be.]
——————–
1. Ins. by Act 20 of 1063, sec. 57 and the Second Schedule. The words “or under the Government of Part (‘ States Act, 1951 (40 of 195 1), as the case may be” ins. by Act 27 of 1956, sec. 32, and omitted by the Adaptation of Laws (No. 2) Order, 1956.
1[Retirement from contest at elections in Parliamentary and Assembly Constituencies. Rep. by the Representation of the People (Amendment) Act, 1958 (58 of 1958, sec. 22
——————–
1. Ins. by Act 27 of 1956, sec. 33,
The 1[Election Commission] shall fix the hours during which the poll will be taken; and the hours so fixed shall be published in such manner as may be prescribed:
Provided that the total period allotted on any one day for polling at in election and Parliamentary or Assembly constituency shall not be less than eight hours.
——————–
1. Subs. by Act 27 of 1956, sec. 34, for Appropriate authority”
(1) If at an election the proceedings at any polling station provided under section 25 or at the place fixed under subsection (1) of’ section 29 for the poll are interrupted or obstructed by any riot or open violence, or if at an election it is not possible to take the poll it any polling station or such place on account of any natural calamity, or any other sufficient cause the presiding officer for such polling station or the returning officer presiding over such place, as the case may be, shall a Bounce an adjournment of the poll to a date to be notified later, and where the poll is so adjourned by a presiding officer, he shall forthwith inform the returning officer concerned.
(2) Whenever a poll is adjourned under subsection (1), the returning officer shall immediately report the circumstances to the appropriate authority and the Election Commission and shall, as soon as may be, with the previous approval of the Election Commission appoint the day on which the poll shall recommence, and fix the polling station or place at which, and the hours during which, the poll will be taken, and shall not count the votes cast at such election until such adjourned poll shall have been completed.
(3) In every such case as aforesaid; the returning officer shall notify in such manner as the Election Commission may direct the date, place and hours of polling fixed under subsection (2).
1[Fresh poll in the case of destruction, etc., of ballot boxes. (1) If at any election, -
(a) Any ballot box used at a polling station or at a place fixed for the poll is unlawfully taken out of the custody of the presiding officer or the returning officer, or is accidentally or intentionally destroyed or lost, or is damaged or tampered with, to such an extent, that the result of the poll at the polling station or place cannot be ascertained; or
2[(aa) Any voting machine develops a mechanical failure during the course of the recording of votes; or]
(b) Any such error or irregularity in procedure as is likely to vitiate the poll is committed at a polling station or at a place fixed for the poll,
The returning officer shall forthwith report the matter to the Election Commission.
(2) Thereupon the Election Commission shall, after taking all material circumstances into account; either-
(a) Declare the poll at that polling station or place to be void, appoint a day, and fix the hours, for taking a fresh poll at that polling station or place and notify the day so appointed and the hours so fixed in such manner as it may deem fit, or
(b) If satisfied that the result of a fresh poll at that polling station or place will not in anyway, affect the result of the election or that 3[the mechanical failure of the voting machine or] the error or irregularity in procedure is not material, issue such directions to the returning officer as it may deem proper for the further conduct and completion of the election.
(3) The provisions of this Act and of any rules or orders made thereunder shall apply to every such fresh poll as they apply to the original poll.]
——————–
1. Sub. by Act 40 or 1961, sec. 13, for section 58 (w.e.f. 20-9-1961).
2. Ins. by Act 1 of 1989, sec. 9 (w.e.f. 15-3-1989)
3. Ins. by Act I of 1989, sec. 9 (w.e.f’. 15-3-1989)
1[Adjournment of poll or countermanding of election on the ground of booth capturing. (1) If at any election, -
(a) Booth capturing has taken place at a polling station or at a place fixed for the poll (hereafter in this section referred to as a place) in such a manner that the result of the poll at that polling station or place cannot be ascertained; or
(b) Booth capturing takes place in any place for counting of votes in such a manner that the result of the counting at that place cannot be ascertained,
The returning officer shall forthwith report the matter to the Election Commission.
(2) The Election Commission shall, on the receipt of a report from the returning officer under subsection (1) and after taking all material circumstances into account, either, -
(a) Declare that the poll at that polling station or place be void, appoint a day, and fix the hours, for taking fresh poll at that polling station or place and notify the date so appointed and hours so fixed in such manner as it may deem fit; or
(b) If satisfied that in view of the large number of polling stations or places involved in booth capturing the result of the election is likely to be affected, or that booth capturing had affected counting of votes in such a manner as to affect the result of the election, countermand the election in that constituency.
Explanation- In this section, “booth capturing” shall have the same meaning as in section 135A.]
——————–
1. Ins. by Act 1 of 1989, sec. 10 (w.e.f. 15-3-1989).
At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed, and no votes shall be received by proxy.
Without prejudice to the generality of the provisions contained in section 59, provision may be made by rules made under this Act for enabling, -
(a) Any of the following persons to give his vote by postal ballot, and not in any other manner, at an election in a constituency where a poll is taken, namely:
1[(i) Any person to whom the provisions of sub-section (3) of section 20 of the Representation of the People Act, 1950 (43 of 1950) apply;
(ii) The wife of any such person as is referred to in sub-clause (i) to whom the provisions of sub-section (6) of the said section 20 apply;]
(b) Any person subjected to preventive detention under any law for the time being in force to give his vote by postal ballot, and not in any other manner, at an election in a constituency where a poll is taken, subject to the fulfilment of such requirements as may be specified in those rules.
2[(c) Any person belonging to a class of persons notified by the Election Commission in consultation with the Government to give his vote by postal ballot, and not in any other manner, at an election in a constituency where a poll is taken subject to the fulfilment of such requirements as may be specified in those rules.]
——————–
1. Subs. by Act 47 of 1966, sec. 33, for sub-clauses (i), (iii) and (iv). Sub-clause (ii) was omitted by Act 58 of 1959, sec. 24.
2. Ins. by Act 30 of 1999, sec. 2 (w.e.f. 21-6-1999).
1[Special procedure for preventing personation of electors. With a view to preventing personation of electors provision may be made by rules made under this Act: -
(a) For the making with indelible ink of the thumb or any other finger of every elector who applies for a ballot paper or ballot papers for the purpose of voting at a polling station before delivery of such paper or papers to him;
(b) For the production before the presiding officer or a polling officer of a polling station by every such elector as aforesaid of the identity card before the delivery of a ballot paper or ballot papers to him if under rules made in that behalf under the Representation of the People Act, 1950 (43 of 1950), electors of the constituency in which the polling station is situated have been supplied with identity cards with or without their respecting photographs attached thereto; and
(c) For prohibiting the delivery of any ballot paper to any person for voting, at a polling station if at the time such person applies for such paper he has already such a mark on his thumb or any other finger or does not produce on demand his identity card before the presiding officer or a polling officer of the poling station].
——————-
1. Subs. by Act 58 of 1958, sec. 25, for section 61.
1[Voting machines at elections. Notwithstanding anything contained in this Act or the rules made thereunder, the giving and recording of votes by voting machines in such manner as may be prescribed, may be adopted in such constituency or constituencies as the Election Commission may, having regard to the circumstances of each case, specify.
Explanation For the purpose of this section, “voting machine” means any machine or apparatus whether operated electronically or otherwise used for giving or recording of votes and any reference to a ballot box or ballot paper in this Act or the rules made thereunder shall, save as otherwise provided, be construed as including a reference to such voting machine wherever such voting machine is used at any election.]
——————–
1. Ins. by Act 1 of 1989, sec. 11 (w.e.f 15-3-1989).
(1) No person who is not, and except as expressly provided by the Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.
(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950).
(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.
(4) No person shall at any election vote in the same constituency more than once, not withstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void.
(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of’ the police:
Provided that nothing in this subsection shall apply to a person subjected to preventive detention under any law for the time being in force.
Rep. By the Representation of the People (Amendment) Act, 1961 (40 of 1961), sec. 14 (w.e.f. 20-9-1961)
At every election where a poll is taken, votes shall be counted by or under the 1[supervision and direction] of, the returning officer, and each 2[contesting candidate], his election agent and his 3[counting agents], shall have a tight to be present at the time of counting.
——————–
1. Subs. by Act 27 of 1956, see. 36, for “supervision”.
2. Subs. by Act 58 of 1958 sec. 26, for “candidate”.
3. Subs. by Act 27 of 1956, sec. 36, for “counting agent”.
1[Destruction, loss, etc., or ballot papers at the time of counting. (1) If at any time before the counting of votes is completed any ballot papers used at a polling station or at a place fixed for the poll are unlawfully taken out of the custody of the returning officer or are accidentally or intentionally destroyed or lost or are damaged or tampered with, to such an extent that the result of the poll at that polling station or place cannot be ascertained, the returning officer shall forthwith report the matter to the Election Commission.
(2) Thereupon, the Election Commission shall, after taking all material
circumstances into account, either-
(a) Direct that the counting of votes shall be stopped, declare the poll at that polling station or place to be void, appoint a day, and fix the hours, for taking a fresh poll at that polling station or place and notify the date so appointed and hours so fixed in such manner as it may deem fit, or
(b) If satisfied that the result of a fresh poll at that polling station or place will not in any way, affect the result of the election, issue such directions to the returning officer as it may deem proper for the resumption and completion of the counting and for the further conduct and completion of the election in relation to which the votes have been counted.
(3) The provisions of this Act and of any rules or orders made thereunder shall apply to every such fresh poll as the apply to tire original poll.]
——————–
1. Ins. by Act 47 of 1966, sec. 34, (w.e.f. 14-12-1966).
If after the counting of the votes is completed, an equality of votes is found to exist between any candidates, and the addition of one vote will entitle any of those candidates to be declared elected, the returning officer shall forthwith decide between those candidates by lot, and proceed as if the candidate on whom the lot falls had received an additional vote.
When the counting of the votes has been completed, the returning officer 1[shall, in tire absence of any direction by the Election Commission to the contrary, forthwith declare] the result of the election in the manner provided by this Act or the rules trade thereunder
——————–
1. Subs. By Act 47 of 1966, sec. 35, for “shall forthwith declare” (w.e.f. 14-12-1966)
As soon as may be after the result of all election has been declared, the returning officer shall report the result to the appropriate authority and the Election Commission, and in the case of air election to a House of Parliament or of the Legislature of’ a State also to the Secretary of that House, and the appropriate authority shall cause to he published in file Official Gazelle the declarations containing the names of tire elected candidates.
1[Date of election of candidate. For the purposes of this Act, file date on which candidate is declared by the returning officer under the provisions of section 53, 2[***], 3[* * *], or section 66, to be elected to a House of Parliament or of the Legislature of a State shall be the date of election of that candidate.
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1. Ins. By Act 27 of 1956, sec. 37
2. The word and figures “section 54” omitted by Act 40 of’ 1961, sec. 15 (w.e.f. 20-9-1961).
3. The word, figures and letter “section 55A” omitted by Act 58 or 1958, sec. 27.
(1) Any person who is chosen member of both the Houses of the People and the Council of States and who has not taken his seat in either House relay, by notice in writing signed by him and delivered to the Secretary to the Election Commission 1[within ten days from the date, or the liter of the dates, on which lie is so chosen, intimate in which of the Houses he wishes to serve, and thereupon, his scat in the House in which he does not wish to serve shall become vacant.
(2) In default of such intimation within the aforesaid period, his seat in the Council of States shall, at the expiration of that period become vacant.
(3) Any intimation given under subsection (1) shall be final and irrevocable.
2[(4) For the purposes of this section and of section 69, the date on which a person is chosen to be a member of either House of Parliament shall be in the case of an elected member, the date of his election and in the case of a nominated member, the date of first publication in the Gazette of India of his nomination.]
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1. Subs. By Act 27 of 1956, sec. 38, for certain words.
2. Ins. By Act 27 of’ 1956, sec. 38
(1) If a person who is already a member of the House of the People and has taken his seat in such House is chosen a member of the Council of States, his seat in the House of the People shall 1[on the date on which he is so chosen], become vacant.
(2) If a person who is already a member of the Council of States and has taken his seat in such Council is chosen a member of the House of the People, his seat in the Council of States shall 1[on the date on which he is so chosen], become vacant.
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1. Sub. By Act 27 of 1056, sec. 39, for certain words.
If a person is elected to more than one seat in either House of Parliament or in the House or either House of the Legislature of a State, then, unless within the prescribed time he resigns all but one of the seats 1[by writing under his hand addressed to the Speaker or Chairman, as the case may be, or to such other authority or officer as may be prescribed], all the seats shall become vacant.
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1. Ins. By Act 27 of’ 1956, see. 40.
1[Publication results of elections to the Council of States and of names of persons nominated by the President. After the elections held in any year in pursuance of the notifications issued under section 12, there shall be notified by the appropriate authority in the Official Gazette the names of members elected by the elected members of the Legislative Assemblies of the States and by the members of the electoral colleges for the various 2[Union] territories at the said elections together with the names of any persons nominated by the President to the Council of States under sub-clause (a) of clause (1) of article 80 or under any other provisions.
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1. Sub by Act 27 of’ 1956, sec. 41, for sections 71 to 75.
2. Sub. By the Adaptation of Laws (No. 2) Order, 1956, for “Part C States”
Rep. by the Territorial Councils Act, 1956 (103 of 1956), sec. 66
Where a general election is held for the purpose of constituting a new House of the People or a new State Legislative Assembly, there shall be notified by 1[the Election Commission] in the Official Gazette, as soon as may be after 2[the results of the elections in in the constituencies] other than these in which the poll could not be taken for any reason on the date originally fixed under clause (d) of section 30 or for which the time for completion of the election has been extended under the provisions of section 53 have been declared by the returning officer under the provisions of section 53 or, as the case may be section 66, the names of the members elected for those constituencies] 3[* ** ] and upon the issue of such notification that House or Assembly shall be deemed to be duly constituted:
Provided that the issue of such notification such not be deemed
4[(a) To preclude-
(i) The taking of the poll and the completion of the election in any Parliamentary or Assembly constituency or constituencies in which the poll could not be taken for any reason on the date originally fixed under clause (d) of section 30; or
(ii) The completion of the election in any Parliamentary or Assembly constituency or constituencies for which time has been extended under the provisions of section 153; or]
(b) To affect the duration of the House of the People or the State Legislative Assembly, if any, functioning immediately before the issue of the said notifications
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1. Subs. by Act 40 of 1961, sec. 16, for “the appropriate authority” (w.e.f. 20-9-1961).
2. Subs. by Act 10 of 1967, sec. 2, for certain words.
3. Certain words omitted by Act 40 of 1961, sec. 16, (w.e.f. 20-9-1961).
4. Subs by Act 10 of 1967, sec. 2, for clause (a).
1[Special provision as to certain elections. Notwithstanding anything containedinsection73 or in any other provision of this Act, with respect to the general election for the purpose of constituting a New House of the People upon dissolution of’ the Ninth House of the People,-
(a) The notification under section 73 may be issued without taking into account the Parliamentary constituencies in the State of Jammu and Kashmir; and
(b) The Election Commission may take the steps in rotation to election from the Parliamentary constituencies in the State of Jammu and Kashmir; separately and in such timing and on such date or dates is it may deem appropriate.]
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1. Subs. by Act 31 of 1991, see. 2, for sections 73A and 73AA (w.e.f. 18-4-1991)
After the elections held 1[in pursuance of the notifications issued under section 15A or ] in any year in pursuance of the notifications issued under section 16, there shall he notified by the appropriate authority in the Official Gazette the names of the member elected for the elected for the various Council constituencies and by the member of the Legislative Assembly of the State at the said elections together with the names of any persons nominated by the Governor 2[***] under sub-clause (e) of clause (3) of article 171.]
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1. Ins. by Act 37 of 1957, sec. 13.
2. The words “or Rajpramukh, as the case fairly be” omitted by the Adaptation of Laws (No. 2) Order, 1956
1[Application of Chapter. This Chapter shall apply only to the elections to the House of the People and to the Legislative Assembly of a State.
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1. Subs. by Act 27 of 1956, sec. 42, for sections 76 to 78.
(1) Every candidate at air election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between 1[the date on which he has been nominated] and the date of declaration of the result thereof, both dates inclusive.
2[Explanation 1.Notwithstanding any judgment, order or decision of any Court to the contrary, any expenditure incurred or authorized in connection with the election of a candidate by a political party or by any other association or body of persons or by ,my individual (other than the candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in connection with the election incurred or authorized by the candidate or by his election agent for the purposes of this subsection:
Provided target nothing contained in this Explanation shall affect-
(a) Any judgment, order or decision of the Supreme Court whereby the election of a candidate to the House of the People or to the Legislative Assembly of a State his been declared void or set aside before the commencement of the Representation of the People (Amendment) Ordinance, 1974 (Ord. 13 of 1974);
(b) Any judgment, order or decision of a High Court whereby the election of any such candidate has been declared void or set aside before the commencement it of’ the said Ordinance if no appeal has been preferred to the Supreme Court before such judgment, order or decision of the High Court before such commencement and the period of limitation for filing such appeal has expired before such commencement.
3 [* **]
4[Explanation 3.For the removal of doubt, it is hereby declared that any expenditure incurred in respect of any arrangements made, facilities provided or any other act or thing done by any person in the service of the Government and belonging to any of the classes mentioned in clause (7) of section 123 in the discharge or purported discharge of his official duty as mentioned in the proviso to that clause shall not be deemed to be expenditure in connection with the election incurred or authorized by a candidate or by his election agent for the purposes of this subsection.]
(2) The account shift contain such particulars, as may be prescribed.
(3) The total of the said expenditure shall not exceed such amount as may be prescribed.
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1. Subs. by Act 40 of 1975, sec. 6, for, certain words (retrospectively).
2. Ins. by Act 59 of 1974, sec. 2 (w.e.f. 19-10-1974).
3. Explanation 2 omitted by Act of 1989, sec. 12 (w.e.f. 15-3-1989).
4. Ins. by Act 40 of’ 1075, sec. 6 (retrospectively)
1[(1)] Every contesting candidate at an election shall, within thirty days from the dale of election of the returned candidate or, if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates, lodge with the 2[district, election officer] an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under section 77.]
3[(2) The reference to the district election officer in subsection (1) shall, in relation to a constituency in a Union territory, he construed as a reference to the returning officer for that constituency.]
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1. Section 78 renumbered as sub-section (1) of that section by Act 47 of 1966, sec. 36.
2. Subs. by Act 47 of 1966, sec. 36, for “returning officer”.
3. Ins. by Act 47 of 1966, sec. 36.
In this Part and in 1[Part VIII unless the context otherwise requires, -
2[(a) Any reference to a High Court or to the Chief Justice or Judge of a High Court shall, in rotation to a Union territory having a Court of the Judicial Commissioner, be construed as a reference to the said Court of the Judicial Commissioner or to the Judicial Commissioner or any Additional Judicial Commissioner, as the case may be;]
3[(b) “Candidate” means a person who has been or claims to have been duly nominated as a candidate at any election;]
(c) “Costs” means all costs, charges and expenses of, or incidental to, a trial of an election petition;
(d) “Electoral right” means the right of a person to stand or not to stand as, or 4[to withdraw or not to withdraw] from being, a candidate, or to vote or refrain from voting at all election;
5[(e) “High Court” means the High Court within the local limits of whose jurisdiction the election to which the election petition relates has been held; ]
(f) “Returned candidate” means a candidate whose name has been published under section 67 as duly elected.
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1. Subs. by Act 47 of 1966, sec. 37, for “Parts VII and VIII”.
2. Ins. by Act 47 of 1966, sec. 37, original clause (a) was omitted by Act 27 of 1956, sec. 43.
3. Subs. by Act 40 of 1975, sec. 7 for clause (b) (retrospectively).
4. Subs. by Act 47 of 1966, sec. 37, for “to withdraw”(w.e.f. 14-12-1966).
5. Subs. By Act 47 of 1966, sec. 37 for claluse (e) (w.e.f. 14-12-1966)
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1. Subs. by Act 47 of 1966, sec. 39, for “Election Commission” (w.e.f. 14-12-966).
No election shall be called in question except by all election petition presented in accordance with the provisions of this Part.
1[High Court to try election petitions. (1) The Court having jurisdiction to try an election petition shall be the High Court.
(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice, shall, from time to time, assign one or more Judges for that purpose:
Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.
(3) The High Court in its discretion may, in the interests of justice or convenience, try all election petition, wholly or partly, at a place other than the piece of seat of the High Court.]
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1. Ins. by Act 47 of 1966, sec. 38 (w.e.f. 14-12-1966).
(1) An election petition calling in question any election may be presented on one or more of the grounds specified in 1[sub-section (1)] of section 100 and section 101 to the 2[High Court] by any candidate at such election or any elector 3[within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates].
Explanation. In this subsection, “elector” means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
4[***]
5[(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition 6[***] and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.]
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1. Subs. by Act 27 of 1956, sec. 44, for “sub-sections (1) and (2)”
2. Subs. by Act 47 of 1966, sec. 39 for “Election Commission” (w.e.f. 14-12-1966).
3. Subs. by Act 27 of 19S6, sec. 44, for certain words.
4. Sub-section (2) omitted by Act 47 of 1966, sec. 39 (w.e.f. 14-12-1966).
5. Ins. by Act 40 of 1961, sec. 17 (w.e.f. 20-9-1961).
6. Certain words omitted by Act 47 of 1966, sec. 39 (w.e.f. 14-12-1966).
1[Parties of the petition. A petitioner shall join as respondents to his petition-
(a) Where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the returned candidates; and
(b) Any other candidate against whom allegations of any corrupt practice are made in the petition]
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1. Subs. by Act 27 of 1956, sec. 45, for section 82.
1[Contents of petition. (1) An election petition-
(a) Shall contain a concise statement of the material facts on which the petitioner relies;
(b) Shall set forth full particulars of any corrupt practice that the petitioner alleged including as full statement as possible of the names of the parties alleged to have commission such corrupt practice and the date and place of the commission of each such practice; and
(c) Shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
2[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by all affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.]
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same matter as the petition.
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1. Subs. by Act 27 of 1956 sec. 46, for section 83.
2. Ins. by Act 40 of 196 1, sec. 18 (w.e.f. 20-9-1961).
1[Relief that may be claimed by the petitioner. A petitioner may, in addition to claiming a declaration that the election of all orally of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected
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1. Subs. by Act 27 of 1956, see. 47, for section 84
Rep. by the Representation of the people (Amendment) Act, 1966 (47 of 1966), sec. 40
1[Trial of election petitions. (1) The High Court shall dismiss all election petition which does not comply with the provisions of section 81 or section 82 or section 117.
Explanation. An order of the High Court dismissing all election petition under this sub-section shall he deemed to be an order made under clause (a) of section 98.
(2) As soon as any be after an election petition has been presented to the High Court, it shall be referred to the judges who has or have been assigned by file Chief Justice for the trial of election petitions under sub-section (2) of section 80A.
(3) Where more election petitions than one are presented lo the High Court in respect of the same election, all of them shall be referred for trial to the same judge who may, in his discretion, try them separately or in one or more groups.
(4) Any candidate not already a respondent shift, upon application made by him to the High Court within fourteen days front the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation. For the purposes of this subsection and of section 97, the trial of a petition shall be deemed to commence on the date fixed for file respondents to appear before the High Court and answer the claim or claim made in the petition.
(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as in may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged it) the petition.
(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons lo be recorded.
(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months front the date on which the election petition is presented to the High Court for trial.
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1. Subs. by Act 47 of’ 1966, sec. 41, for sections 86 to 92 (w.e.f. 14-12-1966)
(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall he tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of’ 1908) to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.]
Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence at the trial of an election petition on the ground that it is not duly stamped or registered.
No witness or other person shall be required to state for whom he his voted at an election.
(1) No witness shall be excused from answering any question as to any matter relevant to a matter in issue in the trial of an election petition upon the ground that the answer to such question may criminate or may lend to criminate him, or that it may expose or may tend to expose him to any penalty or forfeiture:
Provided that-
(a) A witness, who answers truly all questions which he is required to answer shall be entitled to receive a certificate of certificate of indemnity from 1[the High Court]; and
(b) An answer given by a witness to a question put by or before 1[the High Court] shall not, except in the case of any criminal proceeding for perjury in respect of the evidence, be admissible in evidence against in any civil or criminal proceeding.
(2) When a certificate of indemnity has been granted to any witness, it may be pleaded by him in any Court and shall be a full and complete defence to or upon any charge under Chapter IXA of the Indian Penal Code (45 of 1860), or Pail VII of this Act arising out of the matter to which such certificate relates, but it shall not be deemed to relieve him front any disqualification in connection with an election imposed by this Act or any other law.
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1. Subs. by Act 47 of’ 1966, sec. 42, for “the Tribunal” (w.e.f 14-12-1966)
The reasonable expenses incurred by any person in attending to give evidence may be allowed by 1[the High Court to such person and shall, unless 1[the High Court] otherwise directs, be deemed to be part of the costs.
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1. Subs. by Act 47 of 1966, sec. 42, for “the Tribunal” (w.e.f. 14-12-1966.)
(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he hid beer the returned candidate and a petition had been presented calling in question his election:
Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of’ 1[commencement of the trial], given notice to 2[the High Court] of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively.
(2) Every notice referred to in sub-section (I) shall be accompanied by the statement and 3[***] particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner.
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1. Subs. by Act 27 of 1956, sec. 52, for “the publication of the election petition under section 90”.
2. Subs. by Act 47 of 1966, sea. 42, for “the Tribunal” (w.e.f. 14-12-1966)
3. The words “list of” omitted by Act 27 of 1956, sec. 52.
At the conclusion of the trial of the an election petition 1[the High Court] shall make in order-
(a) Dismissing the election petition; or
(b) Declaring the election of 2[all or any of the returned candidates] to be void; or
(c) Declaring the election of 4[all or any of the returned candidates] to be void and the petitioner or any other candidate to have been duly elected 3[***]
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1 Subs by Act 47 of 1966, sec. 42, for “the Tribunal” (w.e.f. 14-12-1966.)
2. Subs. by Act 27 of 1956, sec. 53, for “the returned candidate”.
3. The word “or” and clause (d) omitted by Act 27 of’ 1956, sec. 53.
(1) All the time of making an order under section 98 1[the High Court] shall also make an order-
2[(a) Where any charge is made in the petition of any corrupt practice having been Committed at the election, recording-
(i) Finding whether any corrupt practice has or has not been proved to hive been committed 3[***] at election, and the nature of that corrupt practice; and
(ii) The names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and]
(b) Fixing the total amount of cost payable and specifying the persons by and to whom costs shall be paid:
Provided that 4[a person who is not a party to the petition shall not be named] in the order under sub-clause (ii) of clause (a) unless-
(a) He has been given notice to appear before 5[the High Court] and to show cause why lie should not be so named; and
(b) If he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who his already been examined by 6[the High Court] and his given evidence against him, of calling evidence in his defence and of being heard.
7[(2) In this section and in section I 00, the expression “agent” has the same meaning as in section 123.]
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1. Subs. by Act 47 of 1966, sec. 42, for “the Tribunal” (w.e.f. 14-15-1966.)
2. Subs. by Act 27 of 1956, sec. 54, for clause (a).
3. Certain words omitted try Act 58, sec. 29.
4. Subs. by Act 27 of 1956, sec. 54, for “no person shall be named”.
5. Subs. by Act 47 of 1966, sec. 42, for “the Tribunal” (w.e.f. 14-12-1966).
6. Subs. by Act 47 of 1966, sea. 42, for “the Tribunal” (w.e.f. 14-12-1966).
7. Subs. by Act 27 of 1956, sec. 54, for subsection (2).
1[ (1) Subject to the provisions of sub-section (2) if 2[the High court] is of opinion-
(a) That on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act 3[or the Government of Union Territories Act, 1963 (20 of 1963)]; or
(b) That any corrupt practice has been continued by a retuned candidate or his election agent or by other person with the consent of retuned candidate or his election agent; or
(c) That any nomination has been improperly rejected; or
(d) That the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) By the improper acceptance or any nomination, or
(ii) By any corrupt practice committed in the interests of the returned candidate 4[by an agent other than his election agent], or
(iii) By the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) By any noncompliance with the provisions of the Constitution or of’ this Act or of any rules or orders made under this Act,
5[the High Court] shall declare the election of the returned candidate to be void.]
6[(2) If in the opinion of 5[the High Court], a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice 7[* **] but 5[the High Court] is satisfied-
(a) That no such corrupt practice was committed at there election by the candidate or his election agent, and every such corrupt practice was committed contrary to the order, and 8[without the consent], of the candidate or his election agent;
9[* * *]
(c) That the candidate and his election agent took all reasonable means for preventing the commission of corrupt 10[***] practices at the election: and
(d) That in all other respects the election was free from any corrupt 10[* * *], practice on the part of’ the candidate or any of his agents,
Then 5[the High Court] may decide fiat the election of the returned candidate is not void.
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1. Subs. by Act 27 of’ 1056, sec. 55, for sub-sections (1) and (2)
2. Subs. by Act 27 of 1966, sea. 42, for “the Tribunal” (w.e.f. 14-12-1966)
3. Ins. by Act 20 of I963, sec. 57 and the Second Schedule, the words “or the Government of Part C States Act, 1951 (49 of 1951)” were omitted by the Adaptation of Laws (No.2) Order, 1956
4. Subs. by Act 58 of 1958, sec. 30, words.
5. Subs. by Act 47 of’ 1966, sec. 42, for “the Tribunal” (w.e.f.14-12-1966)
6. Sub-section (3) renumbered as sub-section (2) by Act 27 of’ 1956, sec. 55
7. The words and figures “specified in section 123” omitted by Act 27 of 1956, sec. 55.
8. Subs. by Act 27 of’ 1956, sec. 55, for “without the sanction or connivance”
9. Clause (1)) omitted by Act 58 or 1958, sec. 30
10. The words “or illegal” omitted by Act 27 of 1956, sec. 55.
If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and 1[the High Court] is of opinion-
(a) That in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) That but for the votes obtained by the returned candidate by corrupt 2[* * *] practices the petitioner or such other candidate would have obtained a majority of the valid votes,
3[the High Court] shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.
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1. Subs. by Act 47 of’ 1966, sec. 42, for “the Tribunal” (w.e.f.14-12-1966)
2. The words “or illegal” omitted by Act 27 of 1956, sec. 56.
3. Subs. by Act 47 of 1966, sec. 42, for “the tribunal” (w.e.f. 14-12-1966).
If during the trial of an election petition it appears that there is all equality of votes between any candidates at the election and that the addition of a vote would entitle any of those candidates to be declared elected, then-
(a) Any decision made by the returning officer under the provisions of this act shall, in so far as it determines the question between those candidates, be effective also for the purposes of the petition; and
(b) In so for as that question is not determined by such a decision 1[the High court] shall decide between them by lot and proceed as if the one on whom the lot then falls had received an additional vote.
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1. Subs. by Act 47 of 1966, sec. 42, for “the tribunal” (w.e.f. 14-12-1966).
1[Communication of orders or the High Court. The High Court shall, as soon as may be after the conclusion of the trial of all election petition, Ultimate the substance of the decision to the Election Commission and the Speaker or Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned and, as soon as may be thereafter, shall send to the Election Commission an authenticated copy of the decision.]
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1. Subs. by Act 47 of 1066, sec. 43, for section 103 (w.e.f. 14-12-1966).
Rep. By the Representation of the People (Second Amendment) Act, 1956 (27 of 1956), sec. 57.
Rep. by the Representation of the People (Second Amendment) Act, 1956 (27 of 1956), sec. 58
As soon as may be after the receipt of any order made by 1[the High Court] under section 98 or section 99, the Election Commission shall forward copies of the order to the appropriate authority and, in the case where such order relates to an election 2[* * *] to a House of Parliament or to an election to the House or a House of the Legislature of a State, also to the Speaker or Chairman, as the case may be, of the House concerned and 3[shall cause the order to be published-
(a) Where the order relates to an election to a House of Parliament in the Gazette of India as well as in the Official Gazette of the State concerned; and
(b) Where the order relates to an election to the House or a House of the Legislature of the State, in the Official Gazette of the State]
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1. Subs. by Act 47 of 1966, sec. 42, for “the tribunal” (w.e.f. 14-12-1966)
2. The words and brackets “(other than a primary election)” omitted by Act 27 of 1956, sec. 59.
3. Subs. by Act 27 of 1956, sec. 59, for certain words.
1[Effect of order of the High Court. 2[(1) Subject to the provisions contained in Chapter IV A relating to the stay of operation of an order of the High Court under section 98 section 99, every such order shall take effect as soon as it is pronounced by the High Court.]
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1. Subs. by Act 27 of 1956, sec. 60, for section 107.
2. Subs. by Act 47 of 1966, sec. 44, for sub-section (1) (w.e.f. 14-12-1966).
Rep. by the Representation of the People (Amendment) Act, 1966 (47 of 1966), sec. 45
1[Withdrawal of election petitions. (1) An election petition may be withdrawn only by leave of the High Court.
(2) Where an application for withdrawal is made under subsection (1), notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the Official Gazette.
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1. Subs. by Act 47 of 1966, sec. 46, for section 109 and 110 (w.e.f. 14-12-1966).
(1) If there are more petitioners than one, no application to withdraw an election petition shall be made except with the consent of all the petitioners.
(2) No application for withdrawal shall be granted if, in the opinion of the High Court, such application has been induced by any bargain or consideration which ought not to be allowed.
(3) If the application is granted-
(a) The petitioner shall be ordered to pay the costs of the respondents there to fore incurred or such portion thereof as the High Court may think fit;
(b) The High Court shall direct that the notice of withdrawal shall be published in the Official Gazette and in such other manner as it may specify and thereupon the notice shall be published accordingly;
(c) A person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in place of the party within, wing, and upon compliance with the condition, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the Court may deem fit.]
When an application for withdrawal is granted by 1[the High Court] and no person has been substituted as petitioner under clause (c) of subsection (3) of section 110, in place of the party withdrawing 1[the High Court] shall report the fact to the Election Commission 2[and thereupon the Election Commission shall publish the report in the Official Gazette].
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1. Subs. by Act 47 o 1966, sec. 47, for “the Tribunal” (w.e.f’. 14-12- 1966).
2. Ins. by Act 27 of 1956, sec. 61.
1[Abatement of election petitions. (1) An election petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners.
(2) Where an election petition abates under sub-section (1), the High Court shall cause the fact to be published in such manner as it may deem tit.
(3) Any person who might himself have been a petitioner may within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions if any,, as security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit.]
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1. Subs. by Act 47 of 1966, sec. 48, for sections 112 to 115 (w.e.f. 14-12-1966).
If be fore the conclusion of the trial of an election petition, the sole respondent dies or gives notice that he does not intend to oppose the petition or any of the respondents dies or gives such notice and there is no other respondent who is opposing the petition, 1[the High Court] shall cause notice of such event to be published in the Official Gazette, and thereupon any person who might have been a petitioner may, within fourteen days of such publication, apply to be substituted in place of such respondent to oppose the petition, and shall be entitled to continue the proceedings upon such terms is 1[the High Court] may think tit.
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1. Subs. by Act 47 of 1966, sec. 49, for “the Tribunal” (w.e.f. 14-12-1966).
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1. Ins. by Act 27 of 1956, sec. 62.
(1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the Supreme Court on any question (whether of law or fact) from every order made by a High Court under section 98 or section 99
(2) Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the High Court under section 98 or section 99:
Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient, clause for not preferring the appeal within such period.
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1. Subs. by Act 47 of 1966, sec. 50, for section 116A and 116B (w.e.f. 14-12-1966).
(1) An application may be made to the High Court for stay of operation of an order made by the High Court under section 98 or sections 99 before the expiration of the time allowed for appealing there form and the High Court may, on sufficient cause being shown and on such terms and conditions a it may think fit, stay the operation of the order; but no application for stay shall be made to the High Court after an appeal has been preferred to the Supreme Court.
(2) Where an appeal has been preferred against all order made under section 98 or section 90, the Supreme Court may, on sufficient cause being shown and on such terms and conditions as it may think fit, stay the operation of the order appealed from.
(3) When the operation of all order is stayed by the High Court or as the else may be, the Supreme Court, the order shall be deemed never to have taken effect Under Sub-section (1) of section 107; and a copy of the stay order shall immediately be sent by the High Court on as file else may be, the Supreme Court, to the Election Commission and the Speaker or Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned.
(1) Subject to the provisions of this Act and of the Rules, if any, a made the re-under every appeal shall be heard and determined by the Supreme Court as nearly as may be in accordance with the procedure applicable to the hearing and determination of an appeal from any final order passed by a High Court in the exercise of its original civil jurisdiction; and all the provisions of the code of Civil Procedure, 1908 (5of 1908) and the Rules of the Court (including provisions as to the furnishing of security and execution of any order of the Court) shall, so far as may be, apply in relation to such appeal.
(2) As soon as an appeal is decided, the Supreme Court shall intimate the substance of the decision to the Election Commission and the Speaker of Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned and as soon as may be thereafter shall send to the Election Commission all authenticated copy of the decisions and upon its receipts the Election Commission shall–
(a) Forward copies thereof to the authorities to which copies of the order of the High Court were forwarded under section 160; and
(b) Cause the decision to be published in the Gazette or Gazettes in which that order was published under the said section.]
1[Security for costs. (1) At the time of presenting at election petition, the petitioner shall deposit in the High Court in accordance with the Rules of the High Court a suite of two thousand rupees is security for the costs of the petition.
(2) During the course of the tribal of an election petition, the High Court rally, at anytime call upon the petitioner to give such further security for costs as it may direct.
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1. Subs. by Act 47 of’ 1966, sec. 51, for sections 117, 118, 119, 119A and 120 (w.e.f’. 14-12-1966)
No person shall be entitled to be joined as a respondent under sub-section (4) of section 86 unless he has given such security for costs as the High Court may direct.
Costs shall be in the discretion of the High Court
Provided that where a petition is dismissed under clause (a) of section 98, the returned candidate shall be entitled to the costs incurred by him in contesting the petition and accordingly the High Court shall make an order for costs in favour of the returned candidate.]
(1) If in any order as to costs under the provisions of this Part there is a direction for payment of costs by any party to any person, such costs shall, if they have not been already paid, be paid in full, or so far as possible out of the security deposit and the further security deposit, if any, made by such party under this part on an application made in writing in that behalf 1[within a period of one year, from the date of such order] to 2[the High Court] by the person in whose favour the costs have been awarded.
(2) If there is any balance left of any of the said security deposits after payment under subsection (1) of the costs referred to in that subsection, such balance, or where no costs have been awarded or no application is aforesaid has been made within the said period of 3[one year] the whole of the said security deposits may, on an application made in that behalf in Writing to 2[the High Court] by the person by whom the deposits have been made or if such person dies after making such deposits by legal representative of such person, be returned to the said person or to his legal representative, as the case may be.
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1. Subs. by Act 58 of’ 1958, sec. 34, for certain words
2. Subs. by Act 47 of 1966, sec. 52, for ‘the Election Commission” (w.e.f. 14-12-1966).
3. Subs. by Act 58 of 1958, sec. 34, for “six months”.
Any order as to costs under the provisions of this part may be produced before the principal civil court of original jurisdiction within the local limits of whose jurisdiction any person directed by such order to pay any sum, of money has a place of residence of business, o where such place is within a presidency town, before the court of small causes having jurisdiction there, and such court shall execute the order or cause the same to be executed in the same manner, and by the same procedure as if it were a decree for the payment of money made by itself in a suit:
Provided that where any such costs or any apportion thereof may be recovered by an application made under subsection (1) of section 121, no application shall lie under this section 1[within a period of one year from the date of such order] unless it is for recovery of the balance of any costs which has been left un realised after an application has been made under that subsection owing to the insufficiency of the amount of the security deposits referred to in that sub-section.
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1. Subs. by Act 58 of 1958, sec. 35, for certain words.
1[CORRUPT PRACTICES AND ELECTORAL OFFENCES]
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1. Subs. by Act 27 of 1956, sec. 65, for the heading “CORRUPT AND ILLEGAL PRACTICES AND ELECTORAL OFFENCES”.
2. Subs. by Act 27 of 1956, sec. 66, for Chapters 1 and 11 (sections 123 to 125).
The following shall be deemed to be corrupt practices for the purposes of this Act: -
1[(1) “Bribery” that is to say-
(A) Any gift offer or promise by a candidate of his agent or by any other person with the consent of a candidate or his election agent of any gratification to any person whomsoever, with the objects, directly or indirectly of inducing-
(a) A person to stand or not to stand as, or 2[to withdraw or not to withdraw] from being a candidate at an election, or
(b) An elector to vote or refrain from voting at an election, or as a reward to-
(i) A person for having so stood or not stood, or for 3[having withdrawn or not having withdrawn] his candidature; or
(ii) An elector for having voted or refrained from voting;
(B)The receipt of, or agreement to receive, any gratification, whether as a motive or a reward
(a) By a person for standing or not standing as, or for 4[withdrawing or not withdrawing] from being, a candidate; or
(b) By any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate 2[to withdraw or not to withdraw] his candidature.
Explanation
For the purposes of this clause the term “gratification” is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.]
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person 5[with the consent of the candidate or his election agent], with the free exercise of any electoral right:
Provided that-
(a) Without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-
(i) Thereaters any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or
(ii) Kinduces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered and object of divine displeasure or spiritual censure,
Shall be deemed of interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) A declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent of interference within the meaning of this clause.
6[(3) The appeal by a candidate or his agent or by any other person with the consent of a candidates or his election agent to vote or refrain from voting for any person on the ground of his religion, race caste community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbol such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate of for prejudicially affecting the election of bay candidate;
7[Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.]
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on ground of religion race caste community or language, by a candidate or his agent or any other person with the consent of candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.]
8[(3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
Explanation- For the purposes of this clause, “sati” and “glorification” in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987].
(4) The publication by a candidate or his agent or by any other person 9[with the consent of the candidate or his election agent], of any statement of fact which is false3, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct or any candidate in relation to the candidature, or withdrawal, 10[* * *] of a try candidate, being a statement reasonably calculated to prejudice the prospects of that candidate’s election.
(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person 11[with the consent of a candidate or his election agent for the use of such vehicle or vessel for the free conveyance] of any elector (other than the candidate himself the members of his family or his agent) to or from any polling station provided under section 25 or place fixed under subsection (I ) of section 29 for the poll:
Provided that the hiring of vehicle or vessel by a it elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shill not be deemed to be in corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power:
Provided further that the use of any public transport vehicle or vessel orally tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.
Explanation.In this clause, the expression “vehicle” means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for driving other vehicles or otherwise.
(6) The incurring or authorizing of expenditure lit contravention of section 77.
(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person 12[With the consent of the candidate or his election agent], any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate’s election 19[from any person whether or not in the service of the Government] and belonging to any of the following classes, namely–
(a) Gazetted officer, -
(b) Stipendiary judges and magistrates;
(c) Members of the armed forces of the Union;
(d) Members of the police forces;
(e) Excise officers;
13[(f) Revenue officers other than village revenue officers known is lambardars malguzars, patels, deshmukhs or by any other name whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge ally police functions; and)
(g) Such other class of’ persons in the service of the Government as may be Prescribed:
20[(h) class of persons in the service of a local authority, university, government company or institution or concern or undertaking appointed or deputed by the Election Commission in connection with the conduct of elections.]
14[Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangement, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate’s election.]
15[(8) Booth capturing by a candidate or his agent or other person]
Explanation
(1) In this section the expression “agent” includes an election agent a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
(2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate’s election as an election agent 16[* * *] of that candidate.]
17[(3) For the proposes of clause (7), not withstanding any thing contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (inclaling a person serving in connection with the administration of a Union territory) or of a State Government shall he conclusive proof-
(i) Of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and
(ii) Where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal from service such person ceased to be in such service with effect from the said date.]
18[(4) For the purposes of clause (8), “booth capturing” shall have the same meaning as in section 135A.]
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1. Subs. by Act 58 of 1958, sec. 36, for clause (1).
2. Subs. by Act 47 of 1966, sec. 53, for “to withdraw” (w.e.f.14-12-1966).
3. Subs. by Act 47 of 1966, sec. 53, for “having withdrawn” (w.e.f. 14-12-1966).
4. Subs. by Act 47 of 1966, sec. 53 for “withdrawing” (w.e.f. 14-12-1966).
5. Ins. by Act 58 of 1958, sec. 36.
6. Subs. by Act 40 of’ 1961, sec. 23, for clause (3) (w.e.f. 20-9-1961)
7. Ins. by Act 40 of 197.5, sec. 8 (retrospectively)
8. Ins. by Act 3 of 1988, sec. 19 (w.e.f. 21-3-1088)
9. Ins by Act 58 of 1058, sec. 36.
10. The words “or retirement from contest” omitted by Act 58 of 1958, sec. 36.
11. Ins. by Act 58 of 1958, sec. 36.
12. Subs. by Act 47 of 1966 sec. 53, “for the conveyance”(w.e.f. 14-12-1966).
13. Subs. by Act 58 of 1958, sec. 36, for sub-clause (f).
14. Ins. by Act 40 of 1975, sec. 8 (retrospectively)
15. Ins. by Act 1 of 1989, sec. 13 (w.e.f. 15-3-1989)
16. The words “or a polling agent or a counting agent” omitted by Act 47 of 1966, sec. 53 (w.e.f. 1412-1966).
17. Added by Act 40 of 1975, sec. 8 (retrospectively)
18. Ins. by Act I of 1989, sec. 13 (w.e.f. 15-3-1989)
19. Subs. by Act No. 41 of 2009 w.e.f. 22.12.2009.
20. Ins. by Act No. 41 of 2009 w.e.f. 22.12.2009.
1[Promoting enmity between classes in connection with election. Any person who in connection with an election underlies Act promotes or attempts to promote on grounds of religion, rice, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.
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1. Ins. by Act 40 of 1961, sec. 24 (w.e.f. 20-9-1961)
1[Prohibition of public meetings during period of forty-eight hours ending with hour ending for conclusion of poll. (1) No person shall-
(a) Convene, hold, attend, or address any public meeting or procession in connection with an election; or
(b) Display to the public any election matter by means of cinematograph, television or other similar apparatus-, or
(c) Propagate any election matter to the public by holding or by arranging the holding of, any musical concert or any theatrical performance or any other entertainment or amusement with a view to attracting the members of the public thereto, in any polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in that polling area.
(2) Any, person who contravenes the provision of sub-section (l) shall be punishable with imprisonment for a term which may extend to two years or with fine or with both.
(3) In this section, the expression “election matter” means any matter intended or calculated to influence or affect the result of an election.]
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1. Subs. by Act 21 of 1996, sec. 10 (w.e.f. 1-8-1996).
1[Restriction on publication and dissemination of result of exit polls, etc. (1) No person shall conduct any exit poll and publish or publicise by means of the print or electronic media or disseminate in any other manner, whatsoever, the result of any exit poll during such period, as may be notified by the Election Commission in this regard.
(2) For the purposes of sub-section (1), the Election Commission shall, by a general order, notify the date and time having due regard to the following, namely—
(a) in case of a general election, the period may commence from the beginning of the hours fixed for poll on the first day of poll and continue till half an hour after closing of the poll in all the States and Union territories;
(b) in case of a bye-election or a number of bye-elections held together, the period may commence from the beginning of the hours fixed for poll on and from the first day of poll and continue till half an hour after closing of the poll:
Provided that in case of a number of bye-elections held together on different days, the period may commence from the beginning of the hours fixed for poll on the first day of poll and continue till half an hour after closing of the last poll.
(3) Any person who contravenes the provisions of this section shall be punishable with imprisonment for a term which may extend to two years or with fine or with both.
Explanation.—For the purposes of this section,—
(a) “exit-poll” means an opinion survey respecting how electors have voted at an election or respecting how all the electors have performed with regard to the identification of a political party or candidate in an election;
(b) “electronic media” includes internet, radio and television including Internet Protocol Television, satellite, terrestrial or cable channels, mobile and such other media either owned by the Government or private person or by both;
(c) “print media” includes any newspaper, magazine or periodical, poster, placard, handbill or any other document;
(d) “dissemination” includes publication in any “print media” or broadcast or display on any electronic media.]
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1. Inserted by Act No. 41 of 2009 w.e.f. 22.12.2009
1[Offences by companies. (1) Where an offence under sub-section (2) of Section 126-A has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.—For the purpose of this section,—
(a) “Company” means any body corporate, and includes a firm or other association of individuals; and
(b) “Director”, in relation to a firm, means a partner in the firm.’]
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1. Inserted by Act No. 41 of 2009 w.e.f. 22.12.2009
(1) Any person who at a public meeting to which this section applies acts, or incites others to act, in a disorderly manner for the purpose of preventing, the transaction of the business for which the meeting was called together, 1[shall be punishable with imprisonment for a term which may extend to 2[six months or with fine which may extend to two thousand rupees], or with both.]
3[(1A) An offence punishable under subsection (1) shall be cognizable.]
(2) This section applies to any public meeting of a political character held in any constituency between the dates of the issue of a notification under this Act calling upon the constituency to elect a member or members and the date on which such election is held.
(3) If any police officer reasonably suspects any person of committing any offence under sub-section (l), he may requested so to do by the chairman of the meeting, require that person to declare to him immediately his name and address and. if that person refuses or fails so to declare his name and address or if the police officer reasonably suspects him of giving a false name or address, the police officer may arrest him without warrant.
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1. Subs. by Act I of 1989, sec. 14, words (w.e.f. 15-3-1989).
2. Subs. by Act 21 of 1996, sec. 11 (w.e.f. 1-8-1996).
3. Ins. By Act 21 of 1996, sec. 11 (w.e.f. 1-8-1996)
1[Restrictions on the printing of pamphlets, posters, etc. (1) No person shall print or publish or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof
(2) No person shall print or cause to be printed any election pamphlet or poster-
(a) Unless a declaration as to the identity, of the publisher thereof, signed by him, and attested by two persons to whom he is personally known, is delivered by, him to the printer ‘in duplicate; and
(b) Unless, within a reasonable time after the printing of the document, one copy of’ the declaration is sent by, the printer, together with one copy of the document.
(i) Where it is printed in the capital of the State. to the Chief Electoral Officer, and
(ii) In any other case, to the district magistrate of the district in which it is printed.
(3) For the purposes of this section, -
(a) Any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be, printing and the expression “printer” shall be construed accordingly; and
(b) “Election pamphlet or poster” means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates orally placard or poster having reference to all election, but does not include any handbill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instructions to election agents or workers.
(4) Any person who contravenes any of the provisions of sub-section (1) or subsection (2) shall be punishable with imprisonment for a term which may extend lo six months, or with fine which may extend to two thousand rupees, or with both.]
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1. Ins. By Act 40 of 1961, sec. 26 (w.e.f. 20-9-1961)
(1) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law) communicate to ally person any information calculated to violate such secrecy.
(2) Any person who contravenes the provisions of subsection (1) shall be punishable with imprisonment for a term, which may extend to three months or with fine or with both.
(1) No person who is 1[a district election officer or a returning officer], or an assistant returning officer, or a presiding or polling officer at all election, or all officer or clerk appointed by the returning officer for the presiding officer to perform any duty in connection with all election shall in the conduct or the management of the election do any act (other than the giving of vote) for the furtherance of the prospects of the election of a candidate.
(2) No such person as aforesaid, and no member of a police force, shall endeavour-
(a) To persuide any person to give his vote it all election, or
(b) To dissuade any person from giving his vote it all election, or
(c) To influence the voting of any person at all election in any manner.
(3) Any person who contravenes the provisions of subsection (1) or subsection (2) shall be punishable with imprisonment, which may extend to six months or with title or with both.
2[(4) An offence punishable under subsection (3) shall be cognizable.]
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1. Subs. by Act 47 or 1966, sec. 55, for “a returning officer” (w.e.f. 14-12-1966).
2. Ins. by Act 47 of 1966 sec. S5 (w.c.1’. 14-12-1966).
(1) No person shall, on the date or dates on which a poll is taken at any polling station, commit any of the following acts within the polling station or it in any public or private place within a distance of 1[one hundred metres] of the polling station, namely: -
(a) Canvassing for votes; or
(b) Soliciting the vote of any elector; or
(c) Persuading any elector not to vote for any particular candidate; or
(d) Persuading any elector not to vote at the election; or
(e) Exhibiting any notice or sign (other than an official notice) relating to the election.
(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with fine, which may extend to two hundred and fifty rupees.
(3) An offence punishable under this section shall be cognizable.
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1. Subs. by Act 47 of 1966 sec. 56, for “one hundred yards” (w.e.f. 14-12-1966).
(I) No person shall, on the date or dates on which a poll is taken at any polling station, -
(a) Use or operate within or at the entrance of the polling station, or in any public or private place in the neighborhood thereof, any apparatus for amplifying or reproducing the human voice, such as a megaphone or a loudspeaker, or
(b) Shout, or otherwise act in a disorderly manner, within or at the entrance of the polling station or in any public or private place in the neighborhood thereof,
So as to cause annoyance to any person visiting the polling station for the poll, or so as to interfere with the work of the officers and other persons on duty at the polling station.
(2) Any person who contravenes, or wilfully aids or abets the contravention of, the provisions of subsection (1) shall be punishable with imprisonment, which may extend to three months or with fine or with both.
(3) If the presiding officer of a polling station has reason to believe that any person is committing or has committed an offence punishable under this section, he may direct any police officer to arrest such parson, and thereupon the police officer shall arrest him.
(4) Any police officer may take such steps, and use such force, as may be reasonably necessary for preventing any contravention of the provisions of subsection (1), and may seize any apparatus used for such contravention.
(1) Any person who during the hour, fixed for the poll at any polling station misconducts himself or fails to obey the lawful directions of the presiding officer may be removed from the polling station by the presiding officer or by any police officer on duty or by any person authorized in this behalf by such presiding officer.
(2) The powers conferred by subsection (1) shall not be exercised so as to prevent any elector who is otherwise entitled to vote at a polling station from having an opportunity of voting at that station.
(3) If any person who has been so removed from a polling station re-enters the polling station without the permission of the presiding officer, he shall be punishable with imprisonment for a term, which may extend to three months, or with fine, or with both.
(4) An offence punishable under sub-section (3) shall be cognizable.
1[Penalty for failure to observe procedure for voting. If any elector, to whom a ballot paper has been issued, refuses to observe the procedure prescribed for voting the ballot paper issued to him shall be liable for cancellation.]
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1. Ins. by Act 4 of 1996, sec. 2 and Sch. (w.e.f 15-5-1986).
1[Penalty for illegal hiring or procuring of conveyance at elections. If any person is guilty of any such corrupt practice as is specified in clause (5) of section 123 at or in connection with an election, he shall be punishable with imprisonment, which may extend to three months and with fine.]
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1. Subs. by Act 21 of 1996, sec. 12 (w.e.f 1-8-1996).
(1) If any person to whom this section applies is without reasonable cause guilty of any act or omission in breach of his official duty, he shall be punishable with fine, which may extend to five hundred rupees.
1[(IA) An offence punishable under sub-section (1) shall be cognizable.]
(2) No suit or other legal proceedings shall lie against any such person for damages in respect of any such act or omission as aforesaid.
(3) The persons to whom this section applies are the 2[***] 3[district election officers, returning officers], assistant returning officers, presiding officers, polling officers and any other person appointed to perform any duty in connection with 4[***] the receipt of nominations of with drawl of candidatures, or the recording or counting of votes at an election- and the expression “official duty” shall for the purposes of this section be construed accordingly, but shall not include duties imposed otherwise than by or under this Act 2[***].
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1. Ins. by Act 47 of 1966, sec. 58, (w.e.f. 14-12-1966).
2. Certain words omitted by Act 58 of 1958, sec. 37.
3. Subs. by Act 47 of 1966, sec. 58, for “returning officers” (w.e.f. 14-12-1966).
4. The words ‘the preparation of an electoral roll” omitted by Act 59 of 1958, sec. 37.
1[Penalty for Government servants for acting as election agent, polling agent or counting agent. If any person in the service of the Government acts as an election agent or a polling agent or a counting agent of a candidate at an election, he shall be punishable with imprisonment for a term which may extend to three months, or with fine, or with both.]
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1. Ins. by Act 47 of 1966, sec. 59 (w.e.f 14-12-1966).
1[Prohibition of going armed to or near polling station. (1) No person, other than the returning officer the presiding officer, any police officer and any other person appointed to maintain peace and order at a polling station who is on duty at the polling station., shall, on a polling day, go armed with anus, as defined in the Arms Act, 1959, of any kind within the neighbourhood of a polling station.
(2) If any person contravenes the provisions of sub-section (1), he shall be punishable with imprisonment for a term, which may extend to two years or with fine, or with both.
(3) Notwithstanding any thing contained in the Arms Act, 1959 (54 of 1959), where a person is convicted of an offence under this section, the arms as defined in the said Act found in his possession shall be liable to confiscation and the licence granted in relation to such an-ns shall be deemed to have been revoked under section 17 of that Act.
(4) An offence punishable under subsection (2) shall be cognizable.]
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1. Ins. by Act 21 of 1996, sec. 13 (w.e.f. 1-9-1996).
(1) Any person who at any election 1[unauthorisedly] takes, or attempts to take, a ballot paper out ,of a polling station, or willfully aids or abets the doing of any such act, shall be punishable with imprisonment for a term which may extend to one year or with fine, which may extend to five hundred rupees or with both.
(2) If the presiding officer of a polling station has reason to believe that any person is committing or has committed an offence punishable under subsection (1), such officer may, before such person leaves the polling station, arrest or direct a police officer to arrest such person and may search such person or cause him to be searched by a police officer:
Provided that when it is in necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency.
(3) Any ballot paper found upon the person arrested on search shall be made over for safe custody to a police officer by the presiding officer, or when the search is made by a police officer, shall be kept by such officer in safe custody
(4) All offence punishable under sub-section (1) shall be cognizable.
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1. Subs. by Act 21 of 1996, sec. 14 (w.e.f. 1-8-1996).
1[Offence of booth capturing. 2[(1)] Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which 3[shall not be less than one year but which may extend to three years and with fine, and where such offence is committed by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine.]
Explanation. For the purposes of 3[this sub-section and section 20 B] “booth capturing” includes, among other things all or any of the following activities, namely: -
(a) Seizure of a polling station or a place fixed for the poll is an person or persons making polling authorities surrender the ballot papers or voting machines and doing of any other Act, which affects the orderly, conduct of elections:
(b) Taking possession of a polling station or a place fixed for poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and 2[prevent others from free exercise of their right to vote;
(c) 3[Coercing or intimidating or threatening directly or indirectly,] any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote,
(d) Seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes,
(e) Doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate.]
4[(2) An offence punishable under subsection (1) shall be cognizable.]
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1. Ins. by Act I of 1989, sec. 15 (w.e.f. 15-3-1989).
2. Section 135A renumbered as sub-section (1) there of by Act 2l of 1996, sec. 15 (w.e.f. 1-8-1996).
3. Subs. by Act 21 of 1996, sec. 15 (w.e.f. 1-8-1996).
4. Ins. by Act 21 of’ 1996, sec. 15 (w.e.f 1-8-1996)
1[Grant of paid holiday to employees on the day of poll. (1) Every person employed in any business, trade, industrial undertaking or any other establishment and entitled to vote at an election to the House of the People or the Legislative Assembly of a State shall on the day of poll, be granted a holiday.
(2) No deduction or abatement of the wages of any such person shall be made on account of a holiday having, been granted in accordance with sub-section (1) and if such person is employed on the basis that he would not ordinarily receive wages for such a day he shall nonetheless be paid for such day the wages be would have drawn had not a holiday been granted to him on that day.
(3) If an employer contravenes the provisions of subsection (1) or sub-section (2), then such employer shall be punishable with fine, which may extend to five hundred rupees.
(4) This section shall not apply to any elector whose absence may cause danger or substantial loss in respect of the employment in which he is engaged.
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1. Ins. by Act 21 of 1996, sec. 16 (w.e.f 1-8-1 996).
(1) No spirituous, fermented or intoxicating liquors or other substances of a like nature shall be sold, given or distributed at a hotel, eating house, tavern, shop or any other place, public or private within a polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for aii3, election in that polling area.
(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term, which may extend to six months or with fine, which may extend to two thousand rupees, or with both.
(3) Where a person is convicted of an offence under this section, the spirituous, fermented or intoxicating liquors or other substances of a like nature found in his possession shall be liable to confiscation and the same shall be disposed of in such manner is may be prescribed.]
(1) A person shall be guilty of an electoral offence if at any election he-
(a) Fraudulently defaces or fraudulently destroys any nomination paper; or
(b) Fraudulently defaces destroys or removes any list, notice or other document affixed by or under the authority of returning officer; or
(c) Fraudulently defaces or fraudulently destroys any ballot paper or the official mark on any ballot paper or any declaration of identity or official envelope used in connection with voting by postal ballot; or
(d) Without due author supplies any ballot paper to any person 1[or receives any, ballot paper from any person or in possession of any ballot paper] or
(e) Fraudulently puts into any ballot box anything other than the ballot paper which he is authorised by law to put in; or
(f) Without due authority destroys, takes, opens or otherwise interferes with any ballot box or ballot papers than in use for the purposes of the election; or Fraudulently or without due authority, as the case may be, attempts to do any of the foregoing acts or wilfully aids or abets the doing of any such acts.
(2) Any person guilty of an electoral offence under this section shall, -
(a) If he is returning officer or an assistant returning officer or a presiding officer at a polling station or any other officer or clerk employed on official duty in connection with the election be punishable with imprisonment for a term, which may extend to two years or with fine or with both;
(b) If he is any other person, be punishable with imprisonment for a term, which may extend to six months or with fine or with both.
(3) For the purposes of this section, a person shall be deemed to be on official duty if his duty is to take part in the conduct of an election or part of an election including the counting of votes or to be responsible after ail election for the used ballot papers and other documents in connection with such election but the expression “official duty” shall not include any duty imposed otherwise than by or under this Act 2[* * *]
3[(4) An offence punishable under subsection (2) shall be cognizable.]
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1. Ins. by Act 27 of 1956, sec. 70.
2. Certain words omitted by Act 58 of 1958, sec. 39.
3. Subs. by Act 47 of’ 1966, sec. 60, for subsection (4) (w.e.f 14-12-1966)
Rep. by the Representation of the People (Amendment) Act, 1966(47 of 1966), sec. 61
Rep. by the Repealing and Amending Act, 1957 (36 o 1957), sec. 2 and the First,Such.
Rep. by the Representation o the People (Amendment) Act, 1966 (47 of 1966), sec.- 62.
1[Chapter IV.Powers of Election Commission in connection with Inquiries as to Disqualifications of member
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1. Ins. by Act 17 of 1965, sec.2.
(1) Where in connection with the tendering of any opinion to the President under article 103 or, as the case may be, under subsection (4) of section 14 of the Government of Union Territories Act, 1963 (20 of 1963), or to the Governor under article 192, the Election Commission considers it necessary or proper to make an inquiry, and the Commission is satisfied that on the basis of the affidavits filed and the documents produced in such inquiry by the parties concerned of their own accord. it cannot come to a decisive opinion on the matter which is being inquired into, the Commission shall have, for the purposes of such inquiry, the powers of a civil court, while trying a suit under the Code of Civil Procedure. 1909 (5 of 1908), in respect of the following matters, namely: -
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) Requiring the discovery and production of any document or other material object producible as evidence;
(c) Receiving evidence on affidavits;
(d) Requisitioning, any public record or a copy thereof from any Court or officer
(e) Issuing commissions for the examination of witnesses or documents.
(2) The Commission shall also have the power to require any person, subject to any privilege which may be claimed be that person under any law for the time being in force., to furnish information on such points or matters as in the opinion of the Commission may be useful for or relevant to, the subject-matter of the inquiry.
(3) The Commission shall be deemed to be a civil court and when any such offence, as is described in section 175, section 178, section 179, section 190 or section 229 of the Indian Penal Code (45 of 1860) is committed in the view or presence of the Commission, the Commission may after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1899 (5 of 1998) 1[to forward the case to a magistrate having jurisdiction to try the same and the magistrate to whom an), such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under section 482 of the Code of Criminal Procedure, 1999 (5 of 1898)1.
(4) Any proceeding before the Commission shall be deemed a Judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).
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1. See now the corresponding provisions of the Code of Criminal Procedure, 1973 (Act 2 of 1974).
No statement made by a person in the course of giving evidence before the Election Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a Prosecution for giving false evidence by such statement:
Provided that the statement-
(a) Is made in reply to a question which he is required by the Commission to answer, or
(b) Is relevant to the subject matter of the inquiry.
The Election Commission shall have the power to regulate its own procedure (including the fixing of places and times of its sittings and deciding whether to sit in public or in private.)
No suit, prosecution or other legal proceeding shall lie against, the Commission or any person acting under the direction of the Commission in respect of, anything which is in good faith done or intended to be done in pursuance of the foregoing provisions of this Chapter or of any order made there under respect of the tendering of any opinion by the Commission to the President or, as the case may be, to the Governor or in respect of the publication, by or under the authority of the Commission of any such opinion paper or proceedings.
1[(1)] When before the expiration of the term of office of a member elected to the Council of States, his seat becomes vacant or is declared vacant or his election to the Council of States is declared void, the Election Commission shall by in notification in the Gazette of India call upon the elected members of the Legislative Assembly or the members of the electoral college concerned 2[* * *], as the case may be, to elect a person or the purpose of filling the vacancy so caused before Such date is may be specified in the notification and provisions of this Act and of the rules and orders made herein under shall apply, is far as may be, in mention to the election of a member to fill such vacancy.
3[(2) As soon as may be after the date of commencement of Constitution (seventh Amendment) Act, 1956, bye-election shall be field to fill the vacancies existing on trial date in the seats allotted to the States of’ Assam, Orissa and Uttar Pradesh and the Union territories of Delhi, Himachal Pradesh* and Manipur*.]
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1. Section 147 renumbered as sub-section (1) of that section by the adaptation of laws (No. 2) Order, 1956.
2. Certain words omitted by Act 49 of 1951, sec. 44 and the Fifth Sch.
3. Ins. by the Adaptation of laws (No. 2) Order, 1956.
* Now it has become State.
Rep. by the Territorial Council Act, 1950 (103 of 1956), sec. 66
(1) When the seat of a member elected to the House of the People becomes vacant or is declared vacant or his election to the House of the People is declared void, the Election Commission shall, subject to the provisions of sub-section (2) by a notification in the Gazette of India, call upon the Parliamentary constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notifications and the provisions of this Act and of the rules and orders made thereunder shall apply, as for as may be, in rotation to the election of a member to fill such vacancy.
(2) If the vacancy so caused be a vacancy in a seat reserved in any such constituency for the Scheduled Castes or for any Scheduled Tribes, the notification issued under subsection (1) shall specify that the person to fill that seat shall belong to the Scheduled Castes or to such Scheduled Tribes, as the case may be.
(1) Which the scat of a member elected to the Legislative Assembly of a State becomes vacant or is declared vacant or his election to the Legislative Assembly is declared told, the Election Commission shall, subject to the provisions of sub-section (2). by a notification in the Official Gazette, call upon the Assembly constituency concerned to elect a person for the purpose of filling the vacant,” so caused before such date as may be specified in the
(2) If the vacancy so caused be a vacancy in a seat reserved in any such constituency for the Scheduled Caste or for any Scheduled Tribes the notification issued under sub-section (1) shall specify that the person to fill that seat shall belong to the Scheduled Castes or to such Scheduled Tribes as the case not may be. Scheduled Tribes, as the case may be
When before the expiration of the term of office of a member elected to the Legislative Council of a State, his scat becomes vacant or is declared vacant or his election to the Legislative Council is declared void, the Election Commission shall- by a notification in the Official Gazette, Call upon the Council constituency concerned or the members of the Legislative Assembly of the State, as the case may be, to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the miles and orders made there under shall apply as far as may be, in relation to the election of a member to fill such vacancy.
1[Time limit for filling vacancies referred to in sections 147, 149, 150 and 151. Notwithstanding anything contained in section 147, section 149, section 150 and section 151 a bye-election for filling any vacancy referred to in any of’ the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:
Provided that nothing contained in this section shall apply if-
(a) The remainder of the term of a member in relation to a vacancy is less than one year, or
(b) The Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period.]
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1. Ins. By Act 21 of 1996, sec. 17 (w.e.f. 1-8-1996)
(1) The returning officer for an election by the elected members of the Legislative Assembly of a State to fill a seats in the Council of States or for an election, by the members of the Legislative Assembly of a State to Fill a seat or seats in the Legislative Council of the shall, for the purposes of such election maintain is his office in the prescribed manner and form a list of elected members or a list of members, as the case may be of that Legislative Assembly.
(2) The returning officer for an election b- the members of the electoral college for a 1[Union territory] 2[* * ] to fill a seat or seats in the Council of States shall for the purposes of such selection, maintain in his office in the prescribed manner and form a list of members of that electoral college 3[ * * *]
(3) Copies of the lists referred to in sub-section (1) and (2) shall be made available for sale.
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1. Subs. by the Adaptation of Laws (N0. 2) Order 1956, for “Part C State”..
2. The words or group of such States omitted by Act 27 of 1956, sec. 77.
3. Certain words omitted by Act 49 of 1951, sec 44 and the Fifth Sch.
1[Extension of time for completion of election. It shall be competent for the Election Commission for reasons which it consider, sufficient, to extend the time for the completion of any election by making necessary amendments in the notification issued by it under section 30 or subsection (1) of section 39.]
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1. Subs. by Act 27 of 1956, sec. 78 for section 153.
1[(1) Subject to the Provisions of subsections (2) and (2A), the term of office of a member of Council of States, other that member chosen to fill a casual vacancy, shall be six years.]
(2) 2[* * *] Upon the first constitution of the Council of states the President shall, after constitution with the Election Commission, make by order such provision as he thinks fit for curtailing the term of office of some of the members then chosen in order that, as nearly as may be, one-third of the members holding seats of each class shall retire in every second year thereafter.
3[(2A) In order that, as nearly as may be, one-third of the members may retire on the second day of April, 1958, and on the expiration of every second year thereafter , the President shall, as soon as may be after the commencement of the Constitution (seventh Amendment) Act, 1956 after consultation with the Election Commission make by order such provisions as he thinks fit in regard to the terms of office of the members elected under sub-section (2) of section 147.]
(3) A members chosen to fill a casual vacancy shall be chosen to serve for the remainder of his predecessor’s term of office.
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1. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for sub-section (1).
2. Certain words omitted by the Adaptation of Laws (No. 2) Order, 1956.
3. Ins. by the Adaptation of’ Laws (No. 2) Order, 1956
(1) The term of the a member of the Council of’ States whose name is required to be notified iii the Official Gazette under section 71 shall begin on the date of such notification.
(2) The term of office of a member of the Council of States whose finite is not required to be notified under section 71 shall begin on the date of publication of the Official Gazette of the declaration containing the name of such Person is elected under section 67 or of the notification issued tender sub-Clause (i) of clause (1) of article 80 or under any other provision announcing the nomination of such person to the Council of ‘States, is the case may be.
(1) The term of office of a member of the Legislative Council of a State, other than a member chosen to fill a casual vacancy, shall be six years, but upon the first constitution of the Council the Governor 1[***] shall, after consultation with the Election Commission make by order such provision as he thinks lit for curtaining the term of office of some of the members then chosen in order that, as nearly as may be, one-third of the members holding seats of each class shall retire in every second year thereafter..
(2) A member chosen to fill a casual vacancy shall be chosen to serve for the remainder of his predecessor’s term of office.
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1. The words “or the Rajpramukh, as the case may be” omitted by the Adaptation of Laws (No. 2) Order, 1056.
(1) The term of office of a member of the Legislative Council of a State whose name is required to notified in the Official Gazette under 1[section 74] shall begin on the date of such notification.
(2) The term of office of a member of the Legislative Council of a State whose name is not required to be notified under 1[section 74] shall begin on the date of publication in the official Gazette of the declaration containing the name of such person as elected under section 67 or of the notification issued under sub-clause (e) of clause (3) of article 171, announcing the nomination of such person to the Council, as the case may be.
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1. Subs. by Act 27 of 1956, sec, 70, for “section 75”.
1[Return or forfeiture or candidate’s deposit. (1) The deposit made under section 34 or under that section read with subsection (2) of section 39 shall either be returned to the person talking it or his legal representative or be forfeited to the appropriate authority in accordance’s with the provisions of this section.
(2) Except in cases hereafter mentioned in this section, the deposit shall be returned as soon as practicable after the result of the election is declared.
(3) If the candidate is not shown in the list of contesting candidates, or if lie dies before the Commencement of the poll, the deposit shall be returned as soon as practicable after the publication of the list or a their his death, is the case may be.
(4) Subject to the provisions of subsection (3), the deposit shall be forfeited if at all election where a poll has in taken, the candidate is not elected and the number of valid votes polled by him does not exceed one-sixth of the total number of valid votes polled by all the candidates or in the case of election of more than one member at the election, one-sixth of the total number of valid votes so polled divided by the members of members to be elected:
Provided that where at in election held in accordance with the system of proportional representation by means of the single transferable vote, a candidate is not elected, the deposit made by him shall be forfeited if he does not get more than one-sixth of the number of votes prescribed in this behalf as sufficient to secure the return of a candidate.
(5) Notwithstanding anything in subsection (2), (3) and (4), -
(a) If at a general election, the candidate is a contesting candidate in more than one Parliamentary constituency or in more their one assembly constituency, not more than one of the deposits shall be returned, and the other shall be forfeited.
(b) If the candidate is a contesting candidate at all election in more than one council constituency or it all election in a Council constituency and at an election by the members of the State Legislative Assembly to fill seats in file Legislative Council, not more than one of the deposits shall be returned, and the others shall be forfeited.]
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1. Subs. by Act 58 of 1958, sec. 39, for section 158.
1[Staff of certain authorities to be made available for election work. (1) The authorities specified in subsection (2) shall, when so requested by a Regional Commissioner appointed under clause (4) of article 324 or the Chief Electoral Officer of the State, make available to any returning officer Such staff as may be necessary for the performance of any duties in connection with air election.
(2) The following shall be the authorities for the purposes of sub-section (1), namely:
(i) Every local authority;
(ii) Every university established or incorporated by or under a Central, Provincial or State Act;
(iii) A Government company as defined in section 617 of the Companies Act, 1956 (I of 1956);
(iv) Any other institution, concern or undertakings which is established by or under a Central, Provincial or State Act or which is controlled, or financed wholly or substantially by funds provided, directly or indirectly, by the Central Government or a State Government.]
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l. Subs. by Act 12 of 1998, sec. 2 (w.e.f. 23-12-1997).
(1) If it appears to the State Government that in connection with an election held within the State–
(a) Any premises are needed or are likely to be needed for the purpose of being used as a poling station or for the storage of ballot boxes after a poll has been taken, or
(b) Any vehicle, vessel or animal is needed or is likely to be needed for the purpose of transport of ballot boxes to or from any polling station, or transport of members of the police force for maintaining order during in the conduct of such election, or transport of any officer or other person for performance of any duties in connection with such election,
The Government may by order in writing requisition such premises, or such vehicle, vessel or animal, as the case may be, and may make such further orders as may appear to it to be necessary or expedient in connection with the requisitioning:
Provided that no vehicle, vessel of animal which is being lawfully used by a candidate or his agent for any purpose connected with the election of such candidate shall be requisitioned under this subsection until the completion of the poll at Such election.
(2) The requisition shall be effected by an order in writing addressed to the person deemed by the State Government to be the owner or person in possession of the property, and such order shall be served in the prescribed manner on the person to whom it is addressed.
(3) Whenever any property is requisitioned under sub-section (1), the period of such requisition shall not extend beyond the period for which such property is required for any of the purposes mentioned in that sub-section.
(4) In the section–
(a) “Premises” means any land, building, or part of a building and includes a hut, shed or other structure or any part thereof-,
(b) “Vehicle” means any vehicle used or capable of being used for the ‘purpose of road transport, whether propelled by mechanical power of otherwise.
(1) Whenever in pursuance of section 160 the State Government requisitions any premises, there shall be paid to the persons interested compensation the amount of which shall be determined by taking into consideration the following, namely: -
(i) The rent payable in respect of the premises or if no rent is so payable, the rent payable for similar premises in the locality;
(ii) If in consequence of the requisition of the premises the person interested is compelled to chance his residence or place of business, the reasonable expenses (if any) incidental to such change:
Provided that where any person interested being a aggrieved by the amount of compensation so determined makes all application within the prescribed time to the State Government for refer in a the matter to all arbitrator, the amount of compensation to be paid shall be Such as the arbitrator appointed in this behalf by the State Government may determine:
Provided further that where there is any dispute as to the title to receive the compensation or as to the apportionment of the amount of compensation, the State Government to shall refer it all arbitrators appointed in this behalf by the Government for determination and shall be determined in accordance with the decision of such arbitrator.
Explanation.In this subsection, the expression “person interested” means the person who was in actual possession of the premises requisitioned under section 160 immediately before the requisition, or where no person was in such actual possession, the owner of such premises.
(2) Whenever in Pursuance of section 160 the State Government requisitions any vehicle, vessel or animal, there shall be paid to the owner thereof compensation the amount of which shall be determined by the State Government on the basis of fares or rates prevailing in the locality for the hire Of Such vehicle, vessel or animal:
Provided that where the owner Of Such vehicle, vessel or animal being aggrieved by the amount of compensation so determined makes an application wit in the prescribed time to the State Government for referring the matter to an arbitrator, the amount of compensation to be paid shall be such as the arbitrator appointed in this behalf by the State Government may determine:
Provided further that where immediately before the requisitioning the vehicle or vessel was by virtue of the purchase agreement in the possession of a person other than the owner, the amount determined under this sub-section as the total compensation payable in respect of the requisition shall be apportioned between that person and the owner in such manner as they may agree upon, and in default of agreement, in such manner as all arbitrator appointed by the State Government in this behalf may decide.
The State Government may with a view to requisition , any property under section 160 or determined the compensation payable under section 161, by order, require any person to furnish to Such authority as relay he specified in the order such information in his possession relating to Such property as may be so specified.
(1) Any person authorized in this behalf by the State Government may enter into any premises and inspect such premises and any vehicle, vessel or airline therein for the Purpose of determining) whether, and if so in what manner, all order under section 160 Should be made in relation to Such premises, vehicle, vessel or annual, or with a view to securing,, compliance with any order made under, that section.
(2) In this section the expressions “premises” and “vehicle” have the same meanings as in section 160.
(1) Any person remaining in possession of any requisitioned premises in contravention of any order made under section 160 may be summarily evicted from file premises by any officer empowered by the State Government in this behalf.
(2) Any officer so empowered may, after giving to any woman not appearing in public reasonable warning and facility to withdraw, remove or opera ally lock or bolt, break open any door of any building, or do any other act necessary for effecting such eviction.
(1) When any premises requisitioned under section 160 are to be released from requisitioning the possession thereof shall be delivered to the person from whom possession was taken at the time when the premises were requisitioned, or if there were no such person, to the person declared by the State Government to be the owner of such premises, and such delivery of possession shall he a full discharge of the State Government from all liabilities in respect of such delivery, but shall not prejudice any rights in respect of the premises which any other person may be entitled by due process of law to enforce against the person to whom possession of the premises is do delivered.
(2) Where the person to whom possession of any premises requisitioned under section 160 is to be given under sub-section (1) cannot be found or is not readily ascertainable or has no agent or any other person empowered to accept delivery on his behalf, the State Government shall cause a notice declaring that such premises are released 1roin requisition to be affixed on some conspicuous part of such premises and publish the notice in the Official Gazetted.
(3) When a notice referred to in subsection (2) is published in the Official Gazette, the premises specified in Such notice shall cease to be subject to requisition on and from the date of such publication and be declared to have been delivered to the person entitled to possession thereof, and the State Government shall not be liable for any compensation or other claim in respect of such premises for any period after the said date.
The State Government may, by notification in the Official Gazette, direct that any powers conferred or any duty imposed on that Government by any of the provisions of sections 160 to 165 shall, under such conditions, if any, as may he specified in the direction, be exercised or discharged by such officer or class of officers, as may be so specified.
If any person contravenes any order made under section 160 or section 162, lie shall be punishable with imprisonment for a term, which may extend to one year or with fine or with both.
Rep. by the Rulers of Indian States (Abolition of Privileges) Act, 1972 (.54 of 1972), sec. 4 (w.e.f 9-9-1972).
(1) The Central Government may, after consulting the Election Commission, by notification in the Official Gazette, make rules1 for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters, namely–
(a) The duties of presiding officers and polling officer at polling stations;
(b) The checking of voters by reference to the electoral roll;
(c) The manner in which votes are to be given both generally and in the case of illiterate voters or voters under physical or other disability;
(d) The manner in which votes are to he given by in presiding officer, polling officer, polling agent or any other person, who being an elector for a constituency is authorised or appointed for duty it polling station at which he is not entitled to vote;
(e) The procedure to be followed in respect of the tender of vote by a person representing himself to be in elector after another person has voted is such elector;
2[(ee) The manner of giving and recording of votes by means of voting machines and the procedure as to voting to be followed at polling stations where such machines ire used;]
(f) The procedure as to voting to be followed at elections held in accordance with the system of proportional representation by means of the single transferable vote;
(g) The scrutiny and counting of votes including cases in which a recount of the votes may be made before the declaration of the result of the election;
2[(gg) The procedure is to counting of votes recorded by means of voting machines;]
(h) The safe custody of 3[ballot boxes, voting machines], ballot papers and other election papers, the period for which such papers shall be preserved and the inspection and production of such papers;
(i) Any other matter required to be prescribed by this Act.
4[(3) Every rule made under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or 5[in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made], the rule shall thereafter have effect only in such modified form or be of in effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to validity of anything previously done under the rule.]
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1. See, the Conduct of’ Infections Rules, 1961
2. Ins. by Act I of 1999, sec. 16 (w.e.f. 15-3-1089).
3. Subs. by Act I of 1989, sec. 16, for “ballot boxes” (w.e.f. 15-3-1989).
4. Subs. by Act 40 of 1961, sec. 29, for subsection (3) (w.e.f. 20-9-196l), which was ins. by Act 27 of 1956, sec. 82,
5. Subs. by Act 4 of 1986, sec. 2 and Sch. (w.e.f. 15-5-1986).
No civil court shall have jurisdiction to question the legality of any action taken or of any decision given by the returning officer or by any other person appointed under this Act in connection with an election.
Rep. by the repealing and Amending Act, 1957 (36 of 1957) sec. 2 and Sch. II
