November 30, 2014
Section 1. Short title and commencement
(1) This Act may be called the National Green Tribunal Act, 2010.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
Section 2. Definitions
(1) In this Act, unless the context otherwise requires,-
(a) “accident” means an accident involving a fortuitous or sudden or unintended occurrence while handling any hazardous substance or equipment, or plant, or vehicle resulting in continuous or intermittent or repeated exposure to death, of, or, injury to, any person or damage to any property or environment but does not include an accident by reason only of war or civil disturbance;
(b) ” Chairperson” means the Chairperson of the National Green Tribunal;
(c) “environment” include water, air and land and the inter-relationship, which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property;
(d) “Expert Member” means a member of the Tribunal who, is appointed as such, and holds qualifications specified in sub-section (2) of section 5, and, is not a Judicial Member;
(e) “handling”, in relation to any hazardous substance, means the manufacture, processing, treatment, package, storage, trasnpiration, use, collection, destruction, conversion, offering for sale, transfer or the like of such hazardous substance;
(f) “hazardous substance” means any substance or preparation which is defined as hazardous substance in the Environment (Protection) Act, 1986, and exceeding such quantity as specified or may be specified by the Central Government under the Public Liability Insurance Act, 1991; (29 of 1986, 6 of 1991)
(g) “injury” includes permanent, partial or total disablement or sickness resulting out of an accident;
(h) “Judicial Member” means a member of the Tribunal who is qualified to be appointed as such under sub-section (1) of section 5 and includes the Chairperson;
(i) “notification” means a notification published in the Official Gazette;
(j) “person” includes—
(i) an individual,
(ii) a Hindu undivided family,
(iii) a company,
(iv) a firm,
(v) an association of persons or a body of individuals, whether incorporated or not,
(vi) trustee of a trust,
(vii) a local authority, and
(viii) every artificial juridical person, not falling within any of the proceeding sub-clauses;
(k) “prescribed” means prescribed by rules made under this Act;
(l) “Schedule” means Schedules I, II and III appended to this Act;
(m) “substantial question relating to environment” shall include an instance where,—
(i) there is a direct violation of a specific statutory environment obligation by a person by which,—
(A) the community at large other than an individual or group of individuals is affected or likely to be affected by the environmental consequences; or
(B) the gravity of damage to the environment or property is substantial; or
(C) the damage to public health is broadly measurable;
(ii) the environmental consequences relate to a specific activity or a point source of pollution;
(n) “Tribunal” means the National Green Tribunal established under section 3;
(o) “workman” has the meaning assigned to it in the Workmen’s Compensation Act, 1923. ( 8 of 1923).
(2) The words and expressions used in this Act but not defined herein and defined in the Water (Prevention and Control of Pollution) Act, 1974, the Water (Prevention and Control of Pollution) Cess Act, 1977, the Forest (Conservation) Act, 1980, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991, and the Biological Diversity Act, 2002 and other Acts relating to environment shall have the meaning, respectively, assigned to them in those Acts.
Chapter II – Establishment of the Tribunal
Section 3. Establishment of Tribunal
The Central Government shall, by notification, established, with effect from such date as may be specified therein, a Tribunal to be known as the National Green Tribunal to exercise the jurisdiction, powers and authority conferred on such Tribunal by or under this Act.
Section 4. Composition of Tribunal
(1) The Tribunal shall consist of —-
(a) a full time Chairperson;
(b) not less than ten but subject to maximum of twenty full time Judicial Members as the Central Government may, from time to time, notify;
(c) not less than ten but subject to maximum of twenty full time Expert Members, as the Central Government may, from time to time, notify.
(2) The Chairperson of the Tribunal may, if considered necessary, invite any one or more person having specialised knowledge and experience in a particular case before the Tribunal to assist the Tribunal in that case.
(3) The Central Government may, by notification, specify the ordinary place or places of sitting of the Tribunal, and the territorial jurisdiction falling under each such place of sitting.
(4) The Central Government may, in consultation with the Chairperson of the Tribunal make rules regulating generally the practices and procedure of the Tribunal including—
(a) the rules as to the persons who shall be entitled to appear before the Tribunal;
(b) the rules as to the procedure for hearing applications and appeals and other matters [including the circuit procedure for hearing at a place other than the ordinary place of its sitting falling within the jurisdiction referred to in sub-section (3)], pertaining to the application and appeals;
(c) the minimum number of Members who shall hear the application and appeals in respect of any class or classes of applications and appeals;
Provided that the number of Expert Members shall, in hearing an application or appeal, be equal to the number of Judicial Members hearing such application or appeal;
(d) rules relating to transfer of cases by the Chairperson from one place of sitting (including the ordinary place of sitting) to other place of sitting.
Section 5. Qualifications for appointment of Chairperson, Judicial Member and Expert Member
(1) A person shall not be qualified for appointment as the Chairperson or Judicial Member of the Tribunal unless he is, or has been, a Judge of the Supreme Court of India or Chief Justice of a High Court;
Provided that a person who is or has been a Judge of the High Court shall also be qualified to be appointed as a Judicial Member.
(2) A person shall not be qualified for appointment as an Expert Member, unless he,—
(a) has a degree in Master of Science (in physical sciences or life sciences) with a Doctorate degree or Master of Engineering or Master of Technology and has an experience of fifteen years in the relevant field including five years practical experience in the field of environment and forests (including pollution control, hazardous substance management, environment impact assessment, climate change management, biological diversity management and forest conservation) in a reputed National level institution; or
(b) has administrative experience of fifteen years including experience of five years in dealing with environmental matters in the Central or a State Government or in a reputed National or State level institution.
(3) The Chairperson, Judicial Member, and Expert Member of the Tribunal shall not hold any other office during their tenure as such.
(4) The Chairperson and other Judicial and Expert Members shall not, for a period of two years from the date on which cease to hold office, accept any employment in, or connected with the management or administration of, any person who has been a party to a proceeding before the Tribunal under this Act;
Provided that nothing contained in this section shall apply to any employment under the Central Government or a State Government or local authority or in any statutory authority or any corporation established by or under any Central, State or Provincial Act or a Government compnay as defined in section 617 of the Companies Act, 1956. (1 of 1956).
Section 6. Appointment of Chairperson, Judicial Member and Expert Member
(1) Subject to the provisions of section 5, the Chairperson, Judicial Members and Expert Members of the Tribunal shall be appointment by the Central Government.
(2) The Chairperson shall be appointed by the Central Government in consultation with the Chief Justice of India.
(3) The Judicial Members and Expert Members of the Tribunal shall be appointed on the recommendations of such Selection Committee and in such manner as may be prescribed.
Section 7. Term of office and other condition of service of Chairperson, Judicial Member and Expert Member
The Chairperson, Judicial Member and Expert Member of the Tribunal shall hold office as such for a term of five years from the date on which they enter upon their office, but shall not be eligible for re-appointment.
Provided that in case a person, who is or has been a Judge of the Supreme Court, has been appointed as Chairperson or Judicial Member of the Tribunal, he shall not hold office after he has attained the age of seventy years.
Provided further that in case a person, who is or has been the Chief Justice of a High Court, has been appointed as Chairperson or Judicial Member of the Tribunal, he shall not hold office after he has attained the age of sixty-seven years;
Provided also that in case a person, who is or has been a Judge of a High Court, has been appointed as Judicial Member of the Tribunal, he shall not hold office after he has attained the age of sixty-seven years;
Provided also that no Expert Member shall hold office after he has attained the age of sixty-five years;
Section 8. Resignation
The Chairperson, Judicial Member and Expert Member of the Tribunal may, by notice in writing under their hand addressed to the Central Government, resign their office.
Section 9. Salaries, allowances and other terms and conditions of service
The salaries and a allowances payable to, and the other terms and condition of service (including pension, gratuity and other retirement benefits) of, the Chairperson, Judicial Member and Expert Member of the Tribunal shall be such as may be prescribed;
Provided that neither the salary and allowances not the other terms and conditions of service of the Chairperson, Judicial Member and Expert Member shall be varied to their disadvantage after their appointment.
Section 10. Removal and suspension of Chairperson, Judicial Member and Expert Member
(1) The Central Government may, in consultation with the Chief Justice of India, remove from office of the Chairperson on Judicial Member of the Tribunal, who,–
(a) has been adjudged on insolvent; or
(b) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or
(c) has become physically or mentally incapable; or
(d) has acquired such financial or other interest as a likely to affect prejudicially his functions; or
(e) has so abused his position as to render his continuance in office prejudicial to the public interest.
(2) The Chairperson or Judicial Member shall not be removed from his office except by an order made by the Central Government after an inquiry made by a Judge of the Supreme Court in which such Chairperson or Judicial Member has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
(3) The Central Government may suspend from office the Chairperson or Judicial Member in respect of whom a reference of conducting an inquiry has been made to the Judge of the Supreme Court under sub-section (2), until the Central Government passes an order on receipt of the report of inquiry made by the Judge of the Supreme Court on such reference.
(4) The Central Government may, by rules, regulate the procedure for inquiry referred to in sub-section (2).
(5) The Expert Member may be removed from his office by an order of the Central Government on the grounds specified in sub-section (1) and in accordance with the procedure as may be notified by the Central Government;
Provided that the Expert Member shall not be removed unless he has beengiven an opportunity of being heard in the matter.
Section 11. To act as Chairperson of Tribunal or to discharge his functions in certain circustances
In the event of the occurrence of any vacancy in the office of the Chairperson of the Tribunal, by reason of his death, resignation or otherwise, such Judicial Member of the Tribunal as the Central Government may, be notification, authorised in this behalf, shall act as the Chairperson until the date on which a new Chairperson is appointed in accordance with the provisions of this Act.
Section 12. Staff of Tribunal
(1) The Central Government shall determine the nature and categories of the officers and other employees to assist the Tribunal in the discharge of its functions.
(2) The recruitment of the officers and other employees of the Tribunal shall be made by the Chairperson in such manner as may be prescribed.
(3) The officers and other employees of the Tribunal shall discharge their functions under the general superintendence of the Chairperson.
(4) The salaries and allowances and conditions of service of the officers and other employees of the Tribunal shall be such as may be prescribed.
Section 13. Financial and adminisrative powers of Chairperson
The Chairperson of the Tribunal shall exercise such financial and administrative powers as may be vested in him under the rules made by the Central Government:
Provided that the Chairperson may delegate such of his financial and administrative powers, as he may think fit, to any Judicial Member or Expert Member or officer of the Tribunal subject to the condition that the Member or such officer, while exercising such delegated power, continues to act under the direction, control and supervision of the Chairperson.
Chapter III – Jurisdiction, Powers and Proceedings of the Tribunal
Section 14. Tribunal to settle disputes
(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactment specified in Schedule I.
(2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose;
Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
Section 15. Relief, compensation and restitution
(1) The Tribunal may, by an order, provide,—
(a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
(b) for restitution of property damaged;
(c) for restitution of the environment for such area or areas, as the Tribunal may think fit.
(2) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991. (6 of 1991)
(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose:
Provided that the Tribunal may, if it is satisfied that the application was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
(4) The Tribunal may, having regard to the damage to public health, property and environment divided the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.
(5) Every claimant of the compensation or relief under this act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority.
Section 16. Tribunal to have appellate jurisdiction
Any person aggrieved by, —-
(a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 28 of the Water (Prevention and Control of Pollution) Act, 1974; (6 of 1974)
(b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under section 29 of the Water (Prevention and Control of Pollution) Act, 1974; ( 6 of 1974).
(c) direction issued, onor after the commencement of the National Green Tribunal Act, 2010, by a Board, under section 33A of the Water (Prevention and Control of Pollution) Act, 1974; (6 of 1974)
(d) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977; (36 of 1977)
(e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under section 2 of the Forest (Conservation) Act, 1980; (69 of 1980);
(f) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under section 31 of the Air (Prevention and Control of Pollution) Act, 1981; (14 of 1981);
(g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under section 5 of the Environment (Protection) Act, 1986; (29 of 1986);
(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986; (29 of 1986);
(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986; (29 of 1986);
(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of the Biological Diversity Act, 2002, may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal (18 of 2003);
Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days.
Section 17. Liability to pay relief or compensation in certain cases
(1) Where death of, or injury to, any person (other than a workman) or damage to any property or environment has resulted from an accident or the adverse impact of an activity or operation or process, under any enactment specified in Schedule I, the person responsible shall be liable to pay such relief or compensation for such death, injury or damage, under all or any of the heads specified in Schedule II, as may be determined by the Tribunal.
(2) If the death, injury or damage caused by an accident or the adverse impact of an activity or operation or process under any enactment specified in Schedule I cannot be attributed to any single activity or operation or process but in the combined or resultant effect of several such activities, operations and processes, the Tribunal may, apportion the liability for relief or compensation amongst those responsible for such activities, operations and processes on an equitable basis.
(3) The Tribunal shall, in case of an accident, apply the principle of no fault
Section 18. Application or appeal to Tribunal
(1) Each application under sections 14 and 15 or an appeal under section 16 shall, be made to the Tribunal in such form, contain such particulars, and, be accompanied by such documents and such fees as may be prescribed.
(2) Without prejudice to the provisions contained in section 16, an application for grant of relief or compensation or settlement of dispute may be made to the Tribunal by—
(a) the person, who has sustained the injury; or
(b) the owner of the property to which the damage has been caused; or
(c) where death has resulted from the environmental damage, by all or any of the legal representatives of the deceased; or
(d) any agent duly authorised by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be; or
(e) any person aggrieved, including any representative body or organisation; or
(f) the Central Government or a State Government or a Union territory Administration or the Central Pollution Control Board or a State Pollution Control Board or a Pollution Control Committee or a local authority, or any environmental authority constituted or established under the Environment (Protection) Act, 1986 or any other law for the time being in force; (29 of 1986);
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation or relief or settlement of dispute, the application shall be made on behalf of, or, for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be imp leaded as respondents to the application;
Provided further that the person, the owner, the legal representative, agent, representative body or organisation shall not be entitled to make an application for grant of relief or compensation or settlement of dispute if such person, the owner, the legal representative, agent, representative body or organisation have preferred an appeal under section 16.
(3) The application, or as the case may be, the appeal filed before the Tribunal under this act shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application, or, as the case may be, the appeal, after providing the parties concerned an opportunity to be heard.
Section 19. Procedure and powers of Tribunal
(1) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice. (5 of 1908).
(2) Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure.
(3) The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872 (1 of 1872).
(4) The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely:— (5 of 1908).
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of section 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or copy of such record or document from any office; (1 of 1872).
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decision;
(g) dismissing an application for default or deciding it ex parte;
(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte;
(i) pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act;
(j) pass an order requiring any person to cease and desist from committing or causing any violation of any enacetment specified in Schedule I;
(k) any other matter which may be prescribed.
(5) All proceedings before the Tribunal shall be deemed to the judicial proceedings within the meaning of section 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code and the Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (45 of 1860 & 2 of 1974).
Section 20. Tribunal to apply certain principles
The Tribunal shall, while passing any order or decision or award, apply the principles of sustanable development, the precuationary principle and the polluter pays principles.
Section 21. Decision to be taken by majority
The decision of the Tribunal by majority of Members shall be binding:
Provided that if there is a difference of opinion among the Members hearing an application or appeal, and the opinion is equally divided, the Chairperson shall hear (if he has not heard such application or appeal) such application or appeal and decide:
Provided further that where the Chairperson himself has heard such application or appeal alongwith other Members of the Tribunal, and if there is a difference of opinion among the Members in such cases and the opinion is equally divided, he shall refer the matter to other Members of the Tribunal who shall hear such application or appeal and decide.
Section 22. Appeal to Supreme Court
Any person aggrieved by any award, decision or order of the Tribunal, may, file an appeal to the Supreme Court, within ninety days from the date of communication of the award, decision order of the Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908).
Provided that the Supreme Court may entertain any appeal after the expiry of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal.
Section 23. Cost
(1) While disposing of an application or an appeal under this Act, the Tribunal shall have power to make such order as to costs, as it may consider necessary.
(2) Where the Tribunal holds that a not maintainable, or is false or vexatious, and such claim is disallowed, in whole or in part, the Tribunal may, if it so thinks fit, after recording its reasons for holding such claim to be false or vexatious, make an order to award costs, including lost benefits due to any interim injunctions.
Section 24. Deposit of amount payable for damage to environment
(1) Where any amount by way of compensation or relief is ordered to be paid under any award or order made by the Tribunal on the ground of any damage to environment, the amount shall be remitted to the authority specified under sub-section (3), of section 7A of the Public Liability Insurance Act, 1991 for being credited to the Environmental Relief Fund established under that section. (6 of 1991).
(2) The amount of compensation or relief credited to the Environmental Relief Fund under sub-section (1), may, notwithstanding anything contained in the Public Liability Insurance Act, 1991, be utilised by such persons or authority, in such manner and for such purposes relating to environment, as may be prescribed. (6 of 1991).
Section 25. Execution of award or order or decision of Tribunal
(1) An award or order or decision of the Tribunal under this Act shall be executable by the Tribunal as a decree of a civil court, and for this purpose, the Tribunal shall have all the powers of a civil court.
(2) Notwithstanding anything contained in sub-section (1), the Tribunal may transmit any order or award made by it to a civil court having local jurisdiction and such civil court shall execute the order or award as if it were a decree made by that court.
(3) Where the person responsible, for death of, or injury to any person or damage to any property and environment, against whom the award or order is made by the Tribunal, fails to make the payment or deposit the amount as directed by the Tribunal within the period so specified in the award or order, such amount, without prejudice to the filing of complaint for prosecution for an offence under this Act or any other law for the time being in force, shall be recoverable from the aforesaid person as arrears of land revenue or of public demand.
Chapter IV – Penalty
Section 26. Penalty for failure to comply with orders of Tribunal
(1) Whosever, fails to comply with any order or award or decision of the Tribunal under this act, he shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten crore rupees, or with both and in case the failure or contravention continues, with additional fine which may extend to twenty-five thousand rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention:
Provided that in case a company fails to with any order or award or a decision of the Tribunal under this Act, such company shall be punishable with fine which may extend to twenty-five crore rupees, and in case the failure or contravention continues, with additional fine which may extend to one lakh rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence under this Act shall be deemed to be non-cognizable within the meaning of the said Code. (2 of 1974).
Section 27. Offences by companies
(1) Where any offence under this act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly;
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where on offence under this Act has been committed by the company and it is proved that the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation – For the purposes of this section, —-
(a) “company” means any body corporate and includes a firm or other association of individuals; and
(b) “director” in relation to a firm means a partner in the firm.
Section 28. Offences by Government Department
(1) Where any department of the Government fails to comply with any order or award or decision of the Tribunal under this Act, the Head of the Department shall be deemed to be guilty of such failure and shall be liable to be proceeded against for having committed an offence under this Act and punished accordingly:
Provided that nothing contained in this section shall render such Head of the Department liable to any punishment if he proves that the offence was committed without his knowledge or that the exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this act has been committed by a Department of the Government and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any officer, other than the head of the Department, such officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Chapter V – Miscellaneous
Section 29. Bar of jurisdiction
(1) With effect from the date of establishment of the Tribunal under this Act, no civil court shall have jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to determine under its appellate jurisdiction.
(2) No civil court shall have jurisdiction to settle dispute or entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged or environment damaged which may be adjudicated upon by the Tribunal and no injunction in respect of any action taken or to be taken by or before the Tribunal in respect of the settlement of such dispute or any such claim for granting any relief or compensation or restitution of property damaged or environment damaged shall be granted by the civil court.
Section 30. Cognizance of offences
(1) No court shall take cognizance of any offence under this act except on a complaint made by—
(a) the Central Government or any authority or officer authorised in this behalf by that Government; or
(b) any person who has given notice of not less than sixty days in such manner as may be prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid.
(2) No court inferior to that of a Metropolitan Magistrate or, a Judicial Magistrate of the first class shall try any offence punishable under this Act.
Section 31. Members and staff of Tribunal to be public servants
The Chairperson, the Judicial and Expert Members, officers and other employees of the Tribunal shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code.
Section 32. Protection of action taken in good faith
(1) No suit or legal proceeding shall lie against the employees of the Central Government or a State Government or any statutory authority, for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made there under.
(2) No suit, prosecution or other legal proceeding shall lie against the Chairperson or, Judicial Member or Expert Member of the Tribunal or any other person authorized by the Chairperson or Judicial Member or the Expert Member for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made there under.
Section 33. Act to have overriding effect
The provisions of this Act, shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
Section 34. Power to amend Schedule I
(1) The Central Government may, by notification, amend the Schedule I by including therein any other act, enacted by Parliament having regard to the objective of environmental protection and conservation of natural resources, or omitting there from any act already specified therein and on the date of publication of such notification, such act shall be deemed to be included in or, as the case may be, omitted from the Schedule I.
(2) A copy of every notification proposed to be issued under sub-section (I), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by both the Houses.
Section 35. Power to make rules
(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of the Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—
(a) rules as to the persons who shall be entitled to appear before the Tribunal under clause (a) of sub-section (4) of section 4;
(b) the procedure for hearing applications and appeals and other matters pertaining to the applications and appeals under clause (b) of sub-section (4) of section 4;
(c) the minimum number of members who shall hear the applications and appeals in respect of any class or applications and appeals under clause (c) of sub-section (4) of section 4;
(d) the transfer of cases by the Chairperson from one place of sitting (including the ordinary place of sitting) to other place of sitting;
(e) the selection committed and the manner of appointment of the Judicial Member and Expert Member of the Tribunal under sub-section (3) of section 6;
(f) the salaries and allowances payable to, and other terms and conditions of service (including pension, gratuity and other retirement benefits) of, the Chairperson , Judicial Member and Expert Member of the Tribunal under section 9;
(g) the procedure for inquiry of the charges against the Chairperson or Judicial Member of the Tribunal under sub-section (4) of section 10;
(h) the recruitment of officers and other employees of the Tribunal under sub-section (2) of section 12; and the salaries and allowances and other conditions of service of the officers and other employees of the Tribunal under sub-section (4) of that section;
(i) the finanical and administrative powers to be exercised by the Chairperson of the Tribunal under section 13;
(j) the form of application or appeal, the particulars which it shall contain and the documents to be accompanied by and the fees payable under sub-section (1) of section 18;
(k) any such matter in respect of which the Tribunal shall have powers of a civil court under clause (k) of sub-section (4) of section 19;
(l) the manner and the purposes for which the amount of compensation or relief credited to the Environment Relief Fund shall be utilised under sub-section (2) of section 24;
(m) the manner of giving notice to make a complaint under clause (b) of sub-section (I) of section 30;
(n) any other matter which is required to be, or may be, specified by rules or in respect of which provision is to be made by rules.
(3) Every rule made under this Act by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more sucessive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be; so, however, that any such modification or ammunlment shall be without prejudice to the validity of anything previously done under that rule.
Section 36. Amendment of certain enactments
The enactments specified in the Schedule III to this Act be amended in the manner specified therein and such ammendments shall take effect on the date of establishment of the Tribunal
Section 37. Power to remove difficulties
(1) If any difficulty arises in giving effect to the provisions of this act, the Central Government, may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as may appear to it to be necessary for removing the difficutly:
Provided that no such order shall be made after the expiry of a period of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.
Section 38. Repeal and savings
(1) The National Environment Tribunal Act, 1995, and the National Environment Appellate Authority Act,1997 are hereby repealed (hereinafter referred to as the repealed Act.) (27 of 1995 and 22 of 1997).
(2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have done or taken under the corresponding provisions of this Act.
(3) The National Environment Appellate Authority established under sub-section (1) of section 3 of the National Environment Appellate Authority Act, 1997, shall, on the establishment of the National Green Tribunal under the National Green Tribunal Act, 2010, stand dissolved. (22 of 1997).
(4) On the dissolution of the National Environment Appellate Authority established under sub-section (1) of section 3 of the National Environment Appellate Authority Act, 1997, the persons appointed as the Chairperson, Vice-chairperson and every other person appointed as Member of the Said National Environment Appellate Authority and holding office as such immediately before the establishment of the National Green Tribunal under the National Green Tribunal Act, 2010 shall vacate their respective offices and no such chairperson, Vice-Chairperson and every other person appointed as member shall be entitled to claim any compensation for the premature termination of the term of his office or of any contract of service. (22 of 1997)
(5) All cases pending before the National Environment Appellate Authority established under sub-section (1) of section 3 of the National Environment Appellate Authority Act, 1997 on or before the establishment of the National Green Tribunal under the National Green Tribunal Act, 2010, shall, on such establishment, stand transferred to the said National Green Tribunal and the National Green Tribunal shall dispose of such cases as if they were cases filed under that Act. (22 of 1997)
(6) The officers or other employees who have been, immediately before the dissolution of the National Environment Appellate Authority appointed on deputation basis to the National Environment Appellate Authority, shall on such dissolution stand reverted to their parent cadre, Ministry or Department, as the case may be.
(7) On the dissolution of the National Environment Appellate Authority, the officers and other employees appointed on contract basis under the National Environment Appellate Authority and holding office as such immediately before such dissolution, shall vacate their respective offices and such officers and other employees shall be entitled to claim compensation for three months’ pay and allowances or pay and allowances for the remaining period of service, whichever is less, for the premature termination of term of their office under their contract of service.
(8) The mention of the particular matters referred to in sub-sections (2) to (7) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeal. (10 of 1897).
The Schedule I
[See Sections 14(1), 15(1), 17(1)(a), 17(2), 19(4)(j) and 34 (l)]
1. The Water (Preventtion and Control of Pollution) Act, 1974;
2. The Water (Prenvention and Control of Pollution) Cess Act, 1977;
3. The Forest (Conservation) Act, 1980;
4. The Air (Prevention and Control of Pollution) Act, 1981;
5. The Environment (Protection) Act, 1986;
6. The Public Liability Insurance Act, 1991;
7. The Biological Diversity Act, 2002.
The Schedule II
[See Sections 15(4) and 17(1)]
Heads Under Which Compensation Or Relief For Damage May be Claimed
(a) Death;
(b) Permanent, temporary, total or partial disability or other injury or sickness;
(c) Loss of wages due to total or partial disability or permanent or temporary disability;
(d) Medical expenses incurred for treatment of injuries or sickness;
(e) Damages to private property;
(f) Expenses incurred by the Government or any local authority in providing relief, aid and rehabilitation to the affected persons;
(g) Expenses incurred by the Government for any administrative or legal action or to cope with any harm or damage, including compensation for environmental degradation and restoration of the quality of environment;
(h) Loss to the Government or local authority arising out of, or connected with, the activity causing any damage;
(i) Claims on account of any harm, damage or destruction to the fauna including milch and draught animals and aquatic fauns;
(j) Claims on account of any harm, damage or destruction to flora including aquatic flora, crops, vegetables, trees and orchards;
(k) Claims including cost of restoration on account of any harm or damage to environment including pollution of soil, air, water, land and eco-systems;
(l) Loss and destruction of any property other than private property;
(m) Loss of business or employment or both;
(n) Any other claim arising out of, or connected with, any activity of handling of hazardous substance.
The Schedule III
[See Sections 36]
Amendment to certain enactments
Part I
Amendment to the water (Prevention and Control of Pollution) Act, 1974 (6 of 1974)
Insertion of new section 33B:
After section 33A, the following section shall be inserted, namely:–
Appeal to National Green Tribunal:
“33B. Any person aggrieved by,—
(a) an order or decision of the appellate authority under section 28, made on or after the commencement of the National Green Tribunal Act, 2010; or
(b) an order passed by the State Government under section 29, on or after the commencement of the National Green Tribunal Act, 2010; or
(c) directions issued under section 33A by a Board, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.”.
Part II
Amendments to the water (Prevention and control, of pollution) Cess Act, 1977 (36 of 1977)
Amendment of section 13:
In section 13, in sub – section (4), for the words “shall be final”, the words, figures and letters “shall, if no appeal has been filed under section 13A, be final ” shall be substituted.
Insertion of new section 13A:
After section 13, the following section shall be inserted, namely:–
Appeal to National Green Tribunal:
“13A, Any person aggrieved, by an order or decision of the appellate authority made under section 13, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.”.
Part III
Amendment to the forest (Conservation) Act, 1980 (69 of 1980).
Insertion of new section 2A:
After section 2, the following section shall be inserted, namely:–
Appeal to National Green Tribunal:
“2A, Any person aggrieved, by an order or decision of the State Government or other authority made under section 2, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.”.
Part IV
Amendment to the Air (Prevention and control of pollution) Act, 1981 (14 of 1981).
Insertion of new section 31B:
After section 31A, the following section shall be inserted, namely:–
Appeal to National Green Tribunal:
“31B, any person aggrieved by an order or decision of the Appellate Authority under section 31, made on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.”.
Part V
Amendment to the Environment (Protection) Act, 1986 (29 of 1986).
Insertion of new section 5A:
After section 5, the following section shall be inserted, namely:–
Appeal to National Green Tribunal:
“5A, Any person aggrieved by any directions issued under section 5, on or after the commencement of the National Green Tribunal Act, 2010, may file appeal to the National Green Tribunal under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.”.
Part VI
Amendment to the Biological Diversity Act, 2002. (18 of 2003).
Amendment of section 52:
In section 52, after the proviso, the following provision shall be inserted, namely:–
Provided further that nothing contained in this section shall apply on and from the commencement of the National Green Tribunal Act, 2010:
Provided also that any appeal pending before the High Court, before the commencement of the National Green Tribunal Act, 2010, shall continue to be heard and disposed of by the High Court as if the National Green Tribunal had not been established under section 3 of the National Green Tribunal Act, 2010.”.
Insertion of new section 52A:
After section 52, the following section shall be inserted, namely:–
Appeal to National Green Tribunal:
“52A, any person aggrieved by any determination of benefit sharing or order of the National Biodiversity Authority or a State Biodiversity Board under this Act, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that Act.”.
V.K. Bhasin,
Secy. to the Govt. of India.
November 30, 2014
Section 1. Short title, extent and commencement
(1) This Act may be called the Prevention of Food Adulteration Act, 1954.
(2) It extends to the whole of India 1[* * *]
(3) It shall come into force on such date2 as the Central Government may, by notification in the official Gazette, appoint.
——————–
1. The words “except the State of Jammu and Kashmir” omitted by the Act 41 of 197 1. Sec. 2 (w.e.f. 26tb January, 1972).
2. lst June, 1955; see notification No. S.R.O. 1085, dated 9th May 1955, Gazette of India, Pt. 11 Sec. 3, P. 874. The Act has been extended to Dadra and Nagar Haveli by Reg. 6 of 1963, Sec. 2 and Sch.1, to Pondicherry by Reg, 7 of 1963, Sec. 3 and Sch. 1, to Goa, Daman and Diu by Reg. 11 of 1963, Sec, 3 and Schedule and to Kohima and Mokokchung district in Nagaland by Act 24 of 1972, Sec. 2 (w.e. f. 1st April. 1973).
Section 2. Definitions
In this Act unless the context otherwise requires, –
1[(i) “adulterant” means any material which is or could be employed for the purpose of adulteration;]
2 [(i-a)] “adulterated”—an article of food shall be deemed to be adulterated-
(a) If the article sold by a vendor is not of the nature, substance or quality, demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality, which it purports or is, represented to be;
(b) If the article contains any other substance which affect, or if the article is so processed as to affect injuriously the nature, substance or quality thereof;
(c) If any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature substance or quality thereof;
(d) If any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof.
(e) If the article has been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;
(f) If the article consists wholly or in part of any filthy, putrid, 3[* * *], rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption;
(g) If the article is obtained from a diseased animal;
(h) If the article contains any poisonous or other ingredient which renders it injurious to health:
(i) If the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its (contents injurious to health;
4[(j) If any colouring matter, other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;]
(k) If the article contains any prohibited preservative or permitted preservative in excess of’ the prescribed limits;
5[(l) If’ the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability but which renders it injurious to health;]
(m) If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:
Provided that, where the quality or purity of the article, being a primary food has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.
Explanation. – Where two or more articles of primary food are mixed together and the resultant article of food-
(a) Is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) Is not injurious to health,
Then, such resultant article shall not be deemed to be adulterated within the meaning of this clause;
(ii) “Central Food Laboratory” means any laboratory or institute established or specified under Sec. 4;
(iii) “Committee” means the Central Committee for Food Standards constituted under Sec. 3;
(iv) “Director of the Central Food Laboratory” means the person appointed by the Central Government by notification in the Official Gazette as the Director of the Central Food Laboratory and includes any person appointed by the Central Government in like manner to perform all or any of the functions of the Director under this Act:
6[Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be appointed to be a Director under this clause;]
7[(v) “Food” means any article used as food or drink for human consumption other than drugs and water and includes,
(a) Any article, which ordinarily enters into, or is used in the composition or preparation of, human food,
(b) Any flavouring matter or condiments, and
(c) Any other article which the Central Government may, having regard to its use, nature, substance or quality declare, bv notification in the official Gazette, as food for the purposes of this Act;]
7[(vi) “Food (Health) Authority” means the Director of Medical and Health Services or the Chief Officer in-charge of health administration in a State, by whatever designation he is known, and includes any officer empowered by the Central Government or the State Government, by notification in the Official Gazette, to exercise the powers and perform the duties of the Food (Health) Authority under this Act with respect to such local area as may be specified in the notification;]
(vii) “Local area” means any area, whether urban or rural, declared by 8[the Central Government or the State Government] by notification the Official Gazette, to be a local area for the purposes of this Act;
(viii) “Local authority” means in the case of:
(1) A local area which is-
(a) A municipality, the municipal board or municipal corporation;
(b) A cantonment, the cantonment authority;
(c) A notified area, the notified committee;
(2) Any other area, such authority as may be prescribed by 9[the Central Government or the State Government] under this Act;
10[(viii-a) “Local (Health) Authority”, in relation to a local area, means the officer appointed bv the Central Government or the State Government by notification in the Official Gazette, to be in-charge of’ health administration in such area with such designation as may be specified therein;
(Viii-b) “Manufacture” includes any process incidental or ancillary to the manufacture of an article of food;]
(ix) “Misbranded”-an article of food shall be deemed to be, misbranded-
(a) If it is an imitation of, is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character;
(b) If it is falsely stated to be the product of any place or country
(c) If’ it is sold by a name which belongs to another article of food;
(d) If’ it is so coloured, flavored or coated, powered or polished that the fact that the article damaged is concealed or if the article is made to appear better or of greater value than it really is;
(e) If false claims are made for it upon the label or otherwise;
(f) If, when sold in packages which have been sealed or prepared by or at the instance of the manufacturer or producer and which bear his name and address, the contents of each package are not conspicuously and correctly stated on the outside there of within the limits of variability prescribed under this Act:
(g) If the package containing it, or the label on the package bears any statement, design of device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular, or if the package is otherwise deceptive with respect to its contents;
(h) If the package containing it or the label on the package bears the name of a fictitious individual or company as the manufacturer or producer of the article;
(i) If it purports to be, or is represented as being, for special dietarty uses, unless its label bears such information as may be prescribed concerning its vitamin, mineral, or other dietary properties in order sufficiently to inform its purchaser as to its value for such uses:
(j) If it contains any artificial flavouring, artificial colouring or chemical preservative, without a declaratory label stating that fact, or in contravention of the requirements of this Act or rules made thereunder;
(k) If it is not labelled in accordance with the requirements of this Act or rules made thereunder:
(x) “Package” means a box, bottle, gasket, tin, barrel, case, receptacle, sack, bag, wrapper or other thing in which an article of food is placed or packed;
(xi) “Premises” include any shop, stall or place where any article of food is sold or manufactured or stored for sale:
(xii) “Prescribed” means prescribed by rules made under this Act;
11[xii-a) “Primary food” means any article of food, being a produce of agriculture or horticulture in its natural form;]
(xiii) “Sale” with its grammatical and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article:
(xiv) “Sample” means a sample of any article of food taken under the provisions of this Act or any rules made thereunder:
(xv) The words “unwholesome” and “noxious” when used in relation to an article of food mean respectively that the article is harmful to health or repugnant to human use.
STATE AMENDMENT
Maharashtra. – In Sec. 2 of the Prevention of’ Food Adulteration Act. 1954 (37of] 1954) to Cl. (VI) the following proviso shall be added
“Provided that the Commissioner of Food and Drugs Administration Maharashtra State, appointed as such by the State Government shall on the commencement of the Prevention of Food Adulteration Maharashtra (Amendment) Act, 1969 (.XIII of 1970), be the Food (Health) Authority in the State of Maharashtra.” 12
In Cl. (viii). After sub-clause (2), the following proviso shall be added, namely:
“Provided that ‘local authority’ in the case of a local area in the State of Maharashtra, means such authority or officer of the State Government as the State Government may, by notification in the Official Gazette, appoint for the local area specified in the notification.”
——————–
1. Ins. by Act 34 of 1976, Sec. 2 (w.e.f. Ist. April, 1976).
2. Clause (f) renumbered as Cl. (i-a) by Sec. 2 ibid.
3. The word “disgusting” omitted by Sec. 2 ibid.
4. Subs. by Sec. 2 ibid, for the sub-clause (f) (w.e.f. Ist. April, 1976).
5. Subs. by ibid, for the sub-clause (i) (w.e.f. Ist. April, 1976).
6. Ins. by Act 34 of l976, Sec.2 (w.e.f. Ist April, 1976)
7. Subs. by ibid.
8. Subs. by Act 49 of 1964. Sec. 2 for “the State Government” (w.e.f. Ist. March, 1965).
9. Ins. by Act 34 of 1976 Sec. 2 (w.e.f. Ist. April, 1976).
10. Subs. by Act 49 of 1964. Sec. 2 for “the State Government” (w.e.f. Ist. March 1965.
11. Ins. by Act 34 of 1976. Sec. 2 (w.e.f. Ist. April, 1976).
12. Vide the Maharashtra Act, 1970 (XIII of 1970), published in the Maharashtra Government Gazette. Extraordinary, Pt. IV. No. 16 dated 12the. March, 1970).
Section 3. The Central Committee for Food Standards
(1) The Central Government shall, as soon as may be after the commencement of this Act, constitute a Committee called the Central Committee for Food Standards to advise the Central Government and the State Governments on matters arising out of the administration of this Act and to carry out the other functions assigned to it under this Act.
(2) The Committee shall consist of the following members, namely:
(a) The Director-General, Health Services, ex offlcio, who shall be the Chairman:
1[(b) The Director of’ the Central Food Laboratory or, in a case where more than one Central Food Laboratory is established, the Directors of such Laboratories, ex officio;]
(c) Two experts nominated by the Central Government;
2[(d) One representative each of the Departments of Food and Agriculture in the Central Ministry of Food and Agriculture and one representative each of the Central Ministries of Commerce, Defence, Industry and Supply and Railways, nominated by the Central Government;]
(e) One representative each nominated by the Government of each 3[* * *] State;
(f) Two representatives nominated by the Central Government, to represent the, 4[Union territories];
4[(g) One representative each, nominated by the Central Government, to represent the agricultural, commercial and industrial interests;
(gg) Five representatives nominated by the Central Government to represent the consumer’s interests, one of whom shall be from the hotel industry;]
(h) One representative of the medical profession nominated by the Indian Council of Medical Research;
5[(i) One representative nominated by the Indian Standards Institution referred to in Cl. (e) of Sec. 2 of the Indian Standards Institution (Certification Marks) Act, 1952 (36 of 1952)].
(3) The members of the Committee referred to in Cls. (c), (d), (e), 6[ 7[(q), (gg),] (h), and (i)] of sub- section (2) shall, unless their seats become vacant earlier by resignation, death or otherwise, be entitled to hold office for three years and shall be eligible for re-nomination.
(4) The functions of the Committee may be exercised notwithstanding any vacancy therein.
(5) The Committee may appoint such and so many sub-committees as it deems fit and may appoint to them persons who are not members of the Committee to exercise such powers and perform such duties as may, subject to such conditions, if any, as the Committee may impose, be delegated to them by the Committee.
(6) The Committee, may, subject to the previous approval of the Central Government, make byelaws for the purpose of regulating its own procedure and the transaction of its business.
——————–
1. Subs. by Act 34 of- 1976. Sec.3 (w.e.f. Ist. April, 1976).
2. Subs. by Act 49 of- 1964. Sec. 3 (w.e.f. Ist. March. 1965).
3. The words and letters “Part A State and Part B” omitted by the Adaptation of Laws (No.3) Order. 1956.
4. Subs. by ibid, for “Part C States”.
5. Ins. by Act 49 of 1964. Sec. 3 (w.e. f. Ist March. 1965).
6. Subs. by Act 34 of 1976, Sec. 3, for Cl. (g) (w.e.f. Ist April, 1976).
7. Subs. by Act 49 of 1964 Sec. 3 for “(g) and (h)” (w.e.f. Ist March. 1965).
Section 3 A. Appointment of Secretary and other staff
1[Appointment of Secretary and other staff. (1) The Central Government shall appoint a Secretary to the Committee who shall, under the control and direction of the Committee, exercise such powers and perform such duties as may be prescribed or as may be delegated to him by the Committee.
(2) The Central Government shall provide the Committee with such clerical and other staff as that Government considers necessary.]
——————–
1. Ins. by Act 34 of 1976, Sec. 4 (w.e.f. 1st April, 1976).
Section 4. Central Food Laboratory
1[(1) The Central Government shall, by notification in the Official Gazette, establish one or more Central Food Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or any rules made under this Act:
Provided that the Central Government may, by notification in the Official Gazette, also specify any laboratory or institute as a Central Food Laboratory for the purposes of this Act.]
(2) The Central Government may, after consultation with the Committee, make rules prescribing-
2[(a) The functions of Central Food Laboratory and the local area or areas within which such functions may be carried out;]
(b) The procedure for the submission to the said Laboratory of samples of articles of food for analysis or tests, the forms of the Laboratory’s reports thereon and. the fees payable in respect of such reports;
(c) Such other matters as may be necessary or expedient to enable the said Laboratory to carry out its functions.
STATE AMENDMENT
West Bengal. -To sub-section (1) of Sec. 4. The following proviso shall be added, namely:
“Provided that the State Government may with the prior approval of the Central Government, direct that the functions of the Central Food Laboratory and the Director may be carried out in West Bengal by such authority and such officer respectively, as may be specified the State Government by notification in the Official Gazette and any reference in this Act to the Central Food Laboratory or the Director shall then be construed to mean such authority or officer, as the case may be”, 3
——————–
1. Subs. by Sec. 5. Ibid. For sub-section (1) (w.e.f. I st April 1976).
2. Subs by Act 34 of 1976. Sec. 5, for, Cl. (a).
3. Vide West Bengal Act. 42 of 1973. Published in the Calcutta Gazette, Pt. III. No. 264. dated 29th April, 1974 (w.e.f. 29th April, 1974).
Section 5. Prohibition of import of certain articles of food
No person shall import, into India—
(i) Any adulterated food:
(ii) Any misbranded food:
(iii) Any article of food for the import of’ which a licence is prescribed, except in accordance with the conditions of the licence: and
(iv) Any article of food in contravention of any other provision of this Act or of any rule made thereunder.
Section 6. Application of law relating to sea customs and powers of Customs Officers
(1) The law for the time being in force relating to sea customs and to goods, the import of which is prohibited by See. 18 of the Sea Customs Act, 1878 (8 of 1878)1 shall, subject to the provisions of Sec. 16 of this Act, apply, in respect of articles of food, the import of which is prohibited under Sec. 5 of this Act, and officers of Customs and officers empowered under that Act to perform the duties imposed thereby on a 2[Commissioner of Customs] and other officers of Customs shall have the same powers in respect of such articles of food as they have for the time being in respect of such goods as aforesaid.
(2) Without prejudice to the provisions of sub-section (1) the 3[Commissioner of Customs], or any officer of the Government authorised by the Central Government in this behalf, may detain any imported package which he suspects to contain any article of food the import of’ which is prohibited under Sec. 5 of this Act, and shall forthwith report such detention to the Director of the Central Food Laboratory and, if required by him, forward the package or send samples of any suspected articles of food found therein to the said Laboratory.
——————–
1. The said Act has been repealed by the Customs Act, 1962 {52 of 1962}, Sec. 160 and Schedule.
2. Subs. by Act 22 of 1995. Sec. 87.
3. The words “or” omitted by Act 34 of 1976, Sec. 6 {w.e.f. 1st April, 1976).
Section 7. Prohibitions of manufacture, sale, etc. of certain articles of food
No person shall himself or by any person on his behalf’ manufacture for sale, or store, sell or distribute-
(i) Any adulterated food:
(ii) Any misbranded food.
(iii) Any article of food for the sale of which a licence is prescribed, except in accordance with the conditions or the licence;
(iv) Any article of food the sale of which is for the time being prohibited by the Food (Health) Authority 1[in the interest of public health;] 2[* * *]
(v) Any article of food in contravention of any other provision of’ this Act or of any rule made thereunder, 3[or]
1[(vi) Any adulterant.
Explanation–For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of’ food referred to in Cl. (iii) of- Cl. (iu) it he stores such food for the manufacture there from of any article of food for sale.]
——————–
1. Subs. by Act 49 of 1964. Sec. 4 for certain words {w.e.f. 1st March 1965).
2. The words “or” omitted by Act 34 of 1976, Sec. 6 {w.e.f. 1st April, 1976).
3. Subs. by Act 49 of 1964.Sec. 5, for Secs. 8 and 9 (w.e. f. Ist March, 1965).
Section 8. Public Analysts
1[Public Analysts. The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be public analysts for such local area as may be assigned to them by the Central Government or the State Government as the case may be
Provided that no person who has any financial interest in the manufacture import or sale of any article of food shall be appointed to be a Public Analyst under this section:
1[Provided further that different public Analysts may be appointed for different articles of food].
——————–
1. Subs. by Act 49 of 1964.Sec. 5, for Secs. 8 and 9 (w.e. f. Ist March, 1965).
Section 9. Food Inspectors
(1) The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, leaving the prescribed qualifications to be Food Inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be:
Provided that no person who has any financial interest in the manufacture import or sale of any article of food shall be appointed to be a Food Inspector under this section.
(2) Every Food Inspector shall be deemed to be a public servant within the meaning of Sec. 21 of the Indian Penal Code (45 of 1860), and shall be officially subordinate to such authority as the Government appointing him, may specify in this behalf.
Section 10. Powers of Food Inspectors
(1) A Food Inspector shall have power-
(a) To take samples of any article of food from-
(i) Any person selling such article
(ii) Any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee:
(iii) A consignee after delivery of any such article to him and
(b) To send such sample for analysis to the Public Analyst for the local area within which such sample has been taken;
2[(c) With the previous approval of the Local (Health) Authority having jurisdiction in the local area, concerned, or with the previous approval of the Food (Health) Authority, to prohibit the sale of- any article of food in the interest of public health.]
3[Explanation-For the purposes of sub-clause (iii) of’ Cl. (a), consignee” does not include a person who purchases or receives any article of food for his own consumption.]
1[(2) Any Food Inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis:
Provided that no sample of any article of food, being primary food, shall be taken under this sub-section if ‘it is intended for sale as such food].
(3) Where any sample is taken under Cl. (a) of sub-section (1) or sub-section (2), its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken.
(4) If any article intended for food appears to any Food Inspector to be adulterated or misbranded, he may seize and carry away or keep in the safe custody of the vendor such article in order that it may be dealt with as hereinafter provided; 2[and he shall, in either case, take a sample of’ such article and submit the same for analysis to a public analyst):
4[Provided that where the Food Inspector keeps such article in the safe custody of the vendor he may require the vendor to execute a bond for a sum of money equal to the value of such article with one or more securities as the Food Inspector deems fit and the vendor shall execute the bond accordingly.]
2[(4-A) Where any article of food seized under sub-section (4) is of a perishable nature and the local (Health) Authority is satisfied that such article of food is so deteriorated that it is unfit for human consumption, the said Authority may, after giving notice in writing to the vendor, cause the same to the destroyed.]
(5) The power conferred bv this section includes power to break open any package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale
5[Provided that the power to break open the package or door shall be exercised only after the owner or any other person in charge of the package or, as the ease may be, in Occupation of premises, if he is present therein, refuse,, to open the package or door on being called upon to do so, and in either case after recording the reasons for doing so :]
Provided further that the Food Inspector shall, in exercising the powers of entry upon, arid inspection of any place under this section, follow, as far as may be the provisions of the 6[Code of Criminal Procedure, 1973 (2 of 1974)], relating to the search or inspection of a place by a police officer executing a search-warrant issued under that Code.
(6) 7[Any adulterant found in the possession of a manufacturer or distributor of, or dealer in any article of food or in any of the premises occupied by him as such] and for the possession of which he is unable to account to the satisfaction of the Food Inspector and any books of account or other documents found in his possession or control and which would be useful for, or relevant to any investigation of proceeding under this Act, may be seized by the Food Inspector and a sample of such adulterant submitted for analysis to a public analyst :
8[Provided that no such books of account or other documents shall be seized by the Food Inspector except with the previous approval of the authority to which he is officially subordinated (7) Where the Food Inspector takes any action under Cl. (a) of subsection (1), sub-section (2), sub-section (4) or sub-section (6), he shall 9[call one or more persons to be present at the time when such action is taken and take his or their signatures].
10[(7-A) Where any books of account or other documents are seized under subsection (6), the Food Inspector shall within a period not exceeding thirty days from the date of seizure, return the same to the person from whom they were seized after copies thereof or extracts therefrom as certified by that person in such manner as may be prescribed have been taken:
Provided that where such person refuses to so certify, and a prosecution has been instituted against him under this Act, such books of account or other documents shall be returned to him only after copies thereof or extracts therefrom as certified by the Court have been taken.
(7-B) When any adulterant is seized under sub-section (6), the burden of proving that such adulterant is not meant for purposes of adulteration shall be on the person from whose possession such adulterant was seized.]
(8) Any Food Inspector i-nay exercise the powers of a police officer 11[under Sec. 42 of the Code of Criminal Procedure, 1973 (2 of 1974)] for the purpose of ascertaining the true name and residence of the person from whom a sample is taken or an article of food is seized.
(9) Any Food Inspector exercising powers under this Act or under the rules made thereunder who-
(a) Vexatiously and without any reasonable grounds of suspicion seizes any article of food 11[or adulterant]: or
(b) Commits any other act, to the injury of any person without having reason to believe that such act is necessary for the execution of his duty; Shall be guilty of an offence under this Act and shall be punishable for such offence 11[with fine which shall not be less than five hundred rupees but which may extend to one thousand rupees].
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1. Vinod Kumar v. State of Punjab, 1983 Cr. L.J.177 at p. 178 (P. & H.) I see also Hariram v. State of M.P., 1992 Cr.L.J.2135 at p. 3138 (M.P.) 1993 (1) E.F.R 160 at p. 168 (M.P); State of U.P. v Hanif. 1992 Cr.L.J. 1429 at {. 1431 (S.C.).
2. Subs. by Act 34 of 1976, Sec. 8 (w.e.f. I st April, 1976)
3. Ins. by Act 34 of 1976, Sec. 8 (w.e.f. I st April, 1976).
4. Ins. by Act 49 of 1964, Sec. 6 (w.e.f. Ist March. 1965).
5. Subs. by Act 34 of 1976. Sec. 8, for the first proviso (w.e.f. Ist April 1976).
6. Subs by ibid. for “the code of Criminal Procedure. 1898” (w.e.f. Ist April 1976).
7. Subs. by 34 of 1976. Sec. 8, for certain words (w.e.f. Ist April, 1976).
8. Subs. by ibid, for the former proviso (w.e.f. 1st April, 1976).
9. Subs. by Act of 1964, Sec. 6. For certain words (w.e.f. 1st March, 1965)
10. Ins. by Act 34 of 1976, Sec. 8 (w.e.f. 1st April, 1976).
11. Sadhram v. State of M.P.1995 (1) E.F.R. 638 at p. 639 (M.P.).
Section 11. Procedure to be followed by Food Inspectors
(1) When a Food Inspector takes a sample of food for analysis, he shall-
(a) Give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any whose name, address and other particulars have been disclosed Sec. 14-A:
(b) Except in special cases provided by rules under this Act, divide the sample then and there into three part and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as maybe prescribed:
Provided that where such person refuses to sign or put his thumb impression the Food Inspector shall call upon one or more witnesses and take his or their signature or thumb impressions, as the case may be, in lieu of the signature or thumb impression of such person;
(C) (i) Send one of the parts for analysis to the public analyst under Intimation to the Local (Health) Authority: and
(ii) Send the remaining two parts to the Local (Health) Authority for the purposes of sub-section (2) of this section of sub-Sections (2-A) and (2-F,) of Sec.13.
(2) Where the part of the sample sent to the public analyst under sub- clause (i) of Cl. (c) of’ sub-section (1) is lost or damaged, the Local (Health) Authority shall, on a requisition made to it by the public analyst or the Food Inspector despatch one of the parts of the sample sent to it under sub- clause (ii) of the said C1. (C) To the public analyst for analysis.]
(3) When a sample of any article of food 1[or adulterant] is taken under sub- section (1) or sub-section (2) of Sec. 10. 2[the Food Inspector shall, by the immediately succeeding working day, send a sample of the article of food or adulterant or both, as the may be,] in accordance with the rules prescrilbed for shambling to the public analyst for the local area concerned.
3[(4) An article of food seized under- sub-section (4) of See, 10,’Unless destroyed under sub-section (4-A) of that section, and any adulterant seized under sub-sections (6) of’ the section, shall be produced before a Magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the public analyst].
Provided 4[* * *] that if an application is made to the Magistrate in this behalf by the person from whom any article of food has been seized, the Magistrate shall , by order in writing direct the Food Inspector to produce such article before him within such time as may be specified in
5[(5) If it appears to the Magistrate on taking such evidence as he may deem necessary-
(a) That the article of food produced before him under sub- section (4) is adulterated or misbranded he may order it-
(i) To be forfeited to’ the Central Government, the State Government or the local authority, as the case may be , or
(ii) To be destroyed at the cost of the owner or the person from whom it was seized so as to prevent its being used as human food; or
(iii) To be so disposed of’ as to prevent its being again exposed for sale or used for food under its deceptive name; or
(iv) To be returned to the owner, on his executing a bond with or without sureties, for being sold under its appropriate name or, where the Magistrate is satisfied that the article of food is capable of being made to conform to prescribed standards for human consumption after reprocessing, for being sold after reprocessing under the supervision of such officer as may be specified in the order;
(b) That the adulterant seized under sub-section (6) of Sec. 10 and produced before him is apparently of a kind which may be employed for purposes of adulteration and for the possession of which the manufacturer, distributor or dealer, as the case may be, is unable to account satisfactorily, he may order it to be forfeited to the Central Government, the State Government or the local authority, as the case may be.]
(6) 6[If it appears Io the Magistrate that- any such-
(a) Article of food is not adulterated: or
(b) Adulterant which is purported to be an adulterant is not an adulterant,
The person from whose possession the article of food or adulterant was taken] shall be entitled to have it restored to him and it shall be in the discretion of the Magistrate to award such person from such fund as the State Government may direct in this behalf, such compensation not exceeding the actual loss which he has sustained as the Magistrate may think proper.
STATE AMENDMENT
Maharashtra. – In Sec.11 of the principal Act in sub-section (5), in Cl. (a) for the words “local authority”. the words “State Government” shall be substituted. 7
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1. Ins. by Act 34 of 1976, Sec.9 (w.e.f. Ist April 1976).
2. Subs. by ibid., (w.e.f.) Ist April, 1976) .
3. Subs. by ibid., Sec. 9 (w.e.f. Ist April. 1976), for sub –section (4)and first proviso.
4. The word “further’’ omitted by ibid., Act 34 of 1976. Sec 9 (w.e.f. Ist April , 1976).
5. Subs. by ibid., for the sub- section (5).
6. Subs. by Act 34 of 1976. Sec. 9. for certain words.
7. Vide Maharashtra Act, 1975 (L of 1975) ‘ published in the Maharashtra Government Gazette. Pt. IV, dated 16th’October. 1975 (‘W.e.f. 11th April, 1977).
Section 12. Purchaser may have food analysed
Nothing contained in this Act shall be held to prevent a purchaser of any article of food other than a Food Inspector 1[or a recognised consumer association, whether the purchaser is a member of that association or not,] from having such article analysed by the public analyst on payment of such fees as may be prescribed and from receiving from the public analyst a report of’ his analysis:
Provided that 2[such purchaser or recognised consumer association shall inform the vendor at the time of purchase of his or its intention] to have such article so analysed provided further that the provisions of sub-sections (1), (2) and (3) of Sec. 11 shall, as far as may be, apply to a 3[purchaser of article of food or recognised consumer association who or which intends] to have such articles so analysed, as they apply to a Food Inspector who takes sample of food for analysis:
Provided also that if the report of the public analyst shows that the article of food is adulterated, the 4[purchaser or recognised consumer association shall be entitled to get refund of the fees paid by him or it] under this section.
5[Explanation. -For the purposes of this section and Sec. 20 recognised consumer association” means a voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or under any other law for the time being in force].
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1. Ins. by Act 70 of 1986, Sec,. 2 (w.e.f. I st May, 11)87).
2. Subs. by Act 70 of 1986. Sec. 2, for words “such purchaser shall inform the vendor at the time of purchase of his intention.”
3. Subs. by Sec. 2, ibid. For the words purchaser of article. Of food who intends”.
4. Subs. by Sec. 2, ibid. for the words “purchaser shall be entitled to get refund of the fees paid by him”.
5. Ins. by Sec. 2. Ibid.
Section 13. Report of public analyst
1[(1) The public analyst shall deliver, in such from as may be prescribed. a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.
(2) On receipt of the report of the result of the analysis under subsection (1) to the effect that the article of food is adulterated the Local (Health) Authority shall, after the institution of prosecution against persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Sec. 14-A forward, in Such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of ‘receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
2(2-A) When an application is made to the Court under sub-section (2), the Court shall require the Local (Health) Authority to forward the parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the Court within a period of five days from the date o receipt of such requisition.
(2-B) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2-A), the Court shall first ascertain that the mark and sea] or fastening as provided in Cl. (b) of sub-section (1) of Sec. 11 are intact and the signature or thumb impression, as the ease may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.
(2-C) Where two parts of ‘the sample have been sent to the Court and only one part of- the sample has been sent by the Court to the Director of the Central Food Laboratory under subsection (2-B), the Court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the Court:
Provided that where the part of the sample sent by the Court to Director of the Central Food Laboratory is lost or damaged, the Court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the Court and on receipt thereof the Court shall proceed in the manner provided in sub-section (2-B).
(2-D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the Court shall not continue with the proceedings pending before it in relation to the prosecution.
(2-E) It, after considering the report, if any, of the Food Inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of sub-sections(2) to (2-D)) shall, so far as may be, apply.]
(3) The certificate issued by the Director of the Central Food Laboratory under sub-section (2-B) shall supersede the report given by the public analyst under subsection (1).
(4) Where a certificate obtained from the Director of the Central Food Laboratory 2[under sub- section (2-B)] is produced in any proceeding under this Act or under Sees. 272 to 276 of the Indian Penal Code (45 of 1860), it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis.
(5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sees. 272 to 276 of the Indian Penal Code:
3[Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory [not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub- section (I -A) of Sec. 161 shall be final and conclusive evidence of the facts stated therein.]
4[Explanation-In this section, and in Cl. (9 of sub-section (1) of Sec. 16, “Director of the Central Food Laboratory” shall include the officer I or the time being in charge of any Food Laboratory (by whatever designation he is known) recognised by the Central Government for the purposes of this section.
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1. Subs. by Act 34 61’1 976. Sec. I 0. for sub-section (1) and (2) (w.e.f. I st April 1976).
2. Subs. by Act 34 of 1976. Sec.10 for under sub-section(2)” (w.e.f. I st April 1976).
3. Subs. by Act 34 of 1976. Sec. 10 for proviso (w .e . f. I st April 1976).
4. Ins. Ibid. (W.e.f. Ist April. 1976).
Section 14. Manufacturers, distributors, and dealers to give warranty
1[Manufacturers, distributors, and dealers to give warranty. No 2[manufacturer or distributor of, or dealer in] any article of food shall sell such article to any vendor unless lie also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor :
3[Provided that a bill, cash memorandum or invoice in respect of the sale of’ any article of food given by a manufacturer or distributor of, or dealer in such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section]
Explanation-In this section, in sub-section (2) of Sec. 19 and in Sec. 20-A, the expression “distributor” shall include a commission agent.
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1. Subs. by Act 49 of 1964. Sec. 14 (w.e.f. Ist March 1965).
2. Subs. by Act 34 of 1976, Sec, 7 for Sec. (w.e.f. Ist April, 1976).
3. Ins, by ibid. For the proviso (w.e.f. . I st April 1976).
Section 14 A. Vendor to disclose the name, etc. of the person from whom the article of food was purchased
Every vendor of an article of food shall, if so required, disclose to the Food Inspector the name, address and other particular of the persons from whom he purchased the article of food.
Section 15. Notification of food poisoning
1[The Central Government or the State Government] may, by notification in the Official Gazette, require medical practitioners carrying on their profession in any local area specified in the, notification to report all occurrences of food poisoning coming within their cognizance to such officer as may be specified in the notification.
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1. Municipal Corporation of Delhi v. Ram Chand. (1985) I-F A.C 79 at P. 84 (Delhi).
Section 16. Penalties
1[(1) Subject to the provisions of subsection (I -A) it any person, -
(a) Whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food—
(i) Which is adulterated within the meaning of sub-clause (m) Of Cl. (i-a) of Sec. 2 or misbranded within the meaning of Cl. (ix) Of that section or the sale of’ which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
(ii) Other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder ; or
(b) Whether by himself or bv any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any adulterant which is not injurious to health; or
(c) Prevents a Food Inspector from taking a sample as authorised by this Act : or
(d) Prevents a Food Inspector from exercising any other power conferred on him by or under this Act : or
(e) Being a manufacturer of an article of food, has in his possession, or in any of- the premises occupied by him, any adulterant which is not injurious to health; or
(f) Uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory or by a public analyst or any extent thereof for the purpose of ‘advertising any article of food; or
(g) Whether by himself or by any other person on his behalf, gives to the vendor, a false warranty in writing in respect of any article of food sold by him, he shall, in addition to the penalty to which he may be liable under the provisions of Sec. 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees’:
Provided that-
(i) If the offence is under sub-clause (i) of Cl. (a) and is with respect to an article of food, being primary food which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of Cl. (ix) of Sec. 2or
(ii) If the offence is under sub-section (ii) of Cl. (a), but not being an offence with respect to the contravention of any rule made under Cl. (a) or Cl. (g) of sub-section (I-A) of See. 23 or under Cl. (b) of sub-section (2) of See 24,
The Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees:
Provided further that if offence is under sub-clause (ii) of Cl. (a) and is with respect to the contravention of any rule made under Cl. (a) or Cl. (g) of sub-section (I -A) of Sec. 23 or under Cl. (b) of sub-section (2) of Sec. 24, the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees.]
2[(I-A) If ‘any person whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes, -
(i) Any article of food which is adulterated within the meaning of any of sub- clauses (e) to (1) (I-) both inclusive) of Cl. (i-a) of Sec. 2, or
(ii) Any adulterant which is injurious in addition to the penalty to which he may be liable under the provisions of’ Sec.6, be punishable with imprisonment for a term which shall not be less than one year but which may extend to six years and with fine which shall not be less than two thousand rupees :
Provided that if such article of food or adulterant when consumed by any person is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Sec. 320 of the Indian Penal Code (45 of 1860), he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with line which shall not be less than five thousand rupees.]
3[(i-AA) If any person in whose safe, custody any article of food has been kept under sub-section (4) of Sec. 10, tampers or in any manner interferes with such article, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which shall not less than one thousand rupees.]
4[(l -B) If any Person in whose safe, custody any article of food has been kept under sub- section (4) of ‘Sec. IO sells or distributes such article, which is found by the Magistrate before whom it is produced to be adulterated within the meaning of sub-clause (h) of Cl. (i-a) of Sec. 2 and which, when consumed by any person, is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Sec. 320 of the Indian Penal Code (45 of 1860), then, notwithstanding anything contained in sub-section (I -AA), he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than five thousand rupees.]
(I-C) If any person contravenes the provisions of Sec. 14 or Sec. 14-A, he shall be punishable with imprisonment for a term, which may extend to six months and with fine, which shall not be less than five hundred rupees.
(I -D) If any person convicted of an offence under this Act commits a like offence afterwards, then, without prejudice to the provisions of’ sub-section (2), the Court, before which the second or subsequent conviction takes place, may order the cancellation of the licence, if any, granted to him under this Act and thereupon such licence shall, notwithstanding anything contained in this Act or in the rules made thereunder, stand cancelled.
(2) If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the Court before which the second or subsequent conviction takes place to cause the offender’s name and place of residence, the offence and the penalty imposed to be published at the offender’s expense in such newspapers or in such other manner as the Court may direct. The expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner- as a fine.
STATE AMENDMENT
West Bengal. -In Se. 16. -
(a) In sub-section (1),,for the words “a term which shall riot be less their? Six months but which may extend to six year. And with fine which shall not be less than one thousand rupees.” The world “ life and shall also be liable to fine” shall be substituted:
(b) In the proviso to sub-section (1) for the worlds “ the Court may for any adequate and special reasons to be mentioned in the judgment. Impose a sentence of imprisonment for a term of less than six months and fine of less than one thousand rupees”. The following words shall be substituted. namely:
“If the Court thinks that for any adequate and special reasons to be mentioned in the judgment a lesser sentence would serve the end of justice. The judgment the Court may impose a sentence which is less than a sentence of imprisonment for life.”
In subsection (I -B), _for the words “a term of six year and with fine which shall not be less than one thousand rupee.” the words “life and shall also be liable to fine” shall be substituted. 5
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1. Subs. Act 34 of 1976, Sec. 12 (w.e.f. Ist April 1976),
2. Ins. by Act 34 of 1976. Sec. 12 (w.e.f.Ist April 1976).
3. Sub-section (1-A) renumbered (as sub- section I-AA) by Sec. 12 of the Act 34 of 1976 (w.e.f. 1st April. 1976 ).
4. Subs. by ibid. For sub-section (1-B) (w.e.f.1 st April. 1976).
5. Vide the West Bengal Act (XLIIof-1973) published in the Calcutta Gazette. Pt.11I No. 267. dated 29th April 1974.
Section 16 A. Power of Court to try cases summarily
1[Power of Court to try cases summarily. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under subsection (1) of Sec. 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Secs. 262 to 265 (both inclusive) of the said Code shall, as far is may be, apply to such trial:
Provided that in the ease of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year:
Provided further that when at the commencement of, or in the course of a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence Of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.]
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1. Ins. by Act 34 of 1976, Sec. 13 (w.e.f. lst April, 1976).
Section 17. Offences by companies
1[Offences by companies. (1) Where an offence under this Act has been committed by a company-
(a) (i) The person, if any, has been nominated under sub-section (2)to be in charge of, and responsible to the company for the conduct of the business of the company (hereafter in this section referred to as the person responsible), or
(ii) Where no person has been so nominated, 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; and
(b) 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 and that he exercised all due diligence to prevent the commission of such offence.
(2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated.
Explanation-Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.
(3) The person nominated under sub-section (2) shall, until-
(i) Further notice cancelling such nomination is received from the company by the Local (Health) Authority; or
(ii) He ceases to be a director or, as the case may be, manager of the company: or
(iii) He makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination which request shall be complied with by the Local (Health) Authority, whichever is the earliest, continue to be the person responsible:
Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of’ such cesser to the Local (Health) Authority:
Provided further that where such person makes a request under Cl. (iii) the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made.
(4) Notwithstanding anything contained in the foregoing sub-sections, 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 not being a person nominated under subsection (2), 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:
(b) “Director”, in relation to a firm, means a partner in the firm; and
(c) “Manager” in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it.
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1. Subs. by Act 34 of 1976. Sec. 14, for Sec. 17 (w.e.f. 1st April 1976).
Section 18. Forfeiture of property
Where any person has been convicted under this Act for the contravention of any of the provisions of this Act or of any rule there under, the article of food in respect of which the contravention has been committed may be forfeited to the Government.
1[Provided that where the Court is satisfied that the article of food is capable of being made to conform to prescribed standards for human consumption after reprocessing, the Court may order the article of food to be returned to the owner, on his executing a bond with or without sureties, or being sold, subject to the other provisions of this Act, after reprocessing under the supervision of such officer as may be specified therein.
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1. Ins by Act 34 of 1976, Sec. 15 (w.e.f. 1st April 1976)
Section 19. Defences, which may or may not be allowed in prosecutions under this Act
(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any Adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
1(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if lie proves-,
(a) That he purchased the article of- food–
(i) In a case where a licence is prescribed for the sale thereof, from a daily licensed manufacturer, distributor or dealer;
(ii) In any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and
(b) That the article of food while in his possession was property stored and That he sold it in the same State as he purchased it.]
(3) Any person by whom a warranty as is referred to, 2[in Sec. 14] is alleged to have been given shall be entitled to appear at the hearing and give evidence.
STATE AMENDMENTS
Uttar Pradesh. –After Sec. 19, the Allowing section shall be inserted. namely:
“19A.Burden of proof. –. When any article intended for food is seized from any person under sub-section (4) of ‘Sec I 0 by a Food inspector in the reasonable belief that the same is adulterated or misbranded, the burden of proving that Such article intended for food is not adulterated or. Misbranded shall be on the person from whose possess such article intended for food was seized. “3
West Bengal. -After Sec. 19. The, following section shall be inserted, namely: Burden-of–proof. -When any article intended for food is seized from any person in the reasonable belief that the same is adulterated or misbranded the burden of proving that such article intended for _food is not adulterated or misbranded shall be on the person from whose possession such article intended for food was seized.4
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1. Subs. by Act 49 of 1964 sec 10 (w.e.f. 1st March. 1965).
2. Subs. by ibid for the words “in sub-section (2)” (w.e.f. 1st march, 1965).
3. Vide the Prevention of Adulterated of Food, Drugs and Cosmetics (Uttar Pradesh Amendment) Act. 1974 (U.P. Act No- 47 of 1975) (w.e f. 15th December, 1975).
4. Vide the West Bengal Act XLII of 19’73. published in the Calcutta Gazette, Pt. 111, No. 267, dated 29th April, 19,14 (w.e.f. 29tti April, 1974).
Section 20. Cognizance and trial of offences
1[(1) No prosecution for an offence under this Act, not being an offence under this Sec. 14 or Sec. 14-A] shall be instituted except by, or with the written consent of, 2[the Central Government or the State Government 3[***] or a person authorised in this behalf by general or special order, by the Central Government or the State Government 2[***]:
Provided that a prosecution for an offence under this Act may be instituted by a purchaser 4[or recognisede consumer association] referred instituted to in Sec. 12 5[if he or it produces] in Court a copy of the report of the public analyst along with the complaint.
6[(2) No Court interior to that of Metropolitan Magistrate or a, Judicial Magistrate of the first class shall try any offence under this Act.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence, punishable under sub-section (I -AA) of Sec. 16 shall be cognizable and non-bailable.]
STATE AMENDMENT
West Bengal. -For Sec. 20, the following section shall be inserted, namely:”20. Cognizance offences and arrest without warrant. -(1) All offences punishable under this Act shall be cognizable and non-bailable.
(2) Any police officer not below the rank of a Sub- Inspector of police may arrest without warrant any person against whom a reasonable complaint has been made or credible information has been received 0f his having been concerned in any of the offences punishable under this Act.” 7
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1. Subs. by Act 34 of 1976, Sec. 16 (w.e.f. Ist, April 1976).
2. Subs by Act 49 to 1964, Sec. II for certain words (w.e.f. Ist March 1965).
3. The words “or a local Authority” emitted by Act 34 oi’1976, Sec. 16 I-or certain words (w.e.f. Ist April 1976).
4. Ins. by Act 70 of 1986, Sec. 3 (a) (w.e.f.Ist May, 1987).
5. Subs. by sec. 3 (b), ibid. (w.e.f. Ist May, for the words “if he produces”.
6. Subs. by Act 34 of 1976, sec. 16.
7. Vide the west Bangal Act (XLII of 1973), published in the Calcutta Gazette, pt. III. No.267, dated 29th April, 1974 (w.e.f.29th April, 1974).
Section 20 A. Power of Court to implead manufacturers, etc
1[Power of Court to implead manufacturers, etc. Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then the Court may, notwithstanding anything contained in 2[sub-section (3) of Sec. 319 of the Code of Criminal Procedure, 1973 (2 of 1974)], or in Sec. 20 proceed against him as though a prosecution had been instituted against him under Sec. 20.]
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1. Ins. by Act 49 of 1964, Sec. 12 (w.e.f. 1 st March, 1965).
2. Subs. by Act 34 of 1976, Sec. 17, for certain words (w.e.f. I st April. 1976).
Section 20 AA. Application of the Probation of Offenders Act, 1958 and Sec. 360 of the Code of Criminal Procedure, 1973
1[Application of the Probation of Offenders Act, 1958 and Sec. 360 of the Code of Criminal Procedure, 1973. Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958), or Sec. 360 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age.
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1. Ins. by Act 34 of 1976 . Sec. 18 (w.e.f. 1st April, 1976).
Section 21. Magistrate’s power to impose enhanced penalties
1[Magistrate’s power to impose enhanced penalties. Notwithstanding anything contained in Sec. 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate of the first class to pass any sentence authorised by this Act, except a sentence of imprisonment for life or for a term exceeding six years, in excess of his powers under the said section.]
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1. Subs. by Act 34 of 1976, sec 19 (w.e.f. 1st April, 1976)
Section 22. Protection of action taken in good faith
No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act.
Section 22 A. Power of Central Government to give directions
1[Power of Central Government to give directions. The Central Government may give such directions as it may deem necessary to a State Government regarding the carrying into execution of all or any of the provisions of this Act and the State Government shall comply with such directions.]
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1. Ins. by Act 34 of- 1976. Sec. 20 (w.e.f. 1 st April, 1976).
Section 23. Power of the Central Government to make rules
1(1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of ‘this Act:
Provided that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen which render it necessary to make rules without such consultation, but in such a case, the Committee shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the amendment, of the said rules.]
2[(1-A) 3[in particular arid without particular and without prejudice to the generality of the foregoing power, such rules may provide lot- all or any of the following matters, namely:]
(a) Specifying the article of food or classes of’ food for the import of which a licence is required] and prescribing the form and Conditions of’ such licence, the authority empowered to issue the same, 4[the fees payable therefor, the deposit of any sum as security for the performance of the conditions of the licence and the circumstances under which such licence or security may be cancelled or forfeited]:
(b) Defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food:
(c) Laying down special provisions for imposing rigorous control over the production, distribution and sale of any article or class of articles of food which the Central Government may, by notification in the Official Gazette, specify in this behalf including registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such article or class or articles;
(d) Restricting the packing and labelling of any article of food arid the design of any such package or label with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article or to preventing adulteration;
(e) Defining the qualifications, powers and duties of Food Inspectors and public analyst;
(ee) Defining the laboratories where samples of articles of food or adulterants may be analysed by public analyst under this Act;
(f) Prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture or sale of any article of food
(g) Defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health
(h) Specifying the manner in which containers for samples of food purchased for analysis shall be sealed tip or fastened up
(hh) Defining the methods of ‘analysis:]
(i) Specifying a list of permissible preservatives, other than common salt arid sugar, which alone shall be used in preserved fruits, vegetables, or their products or any other article of food as well as the maximum amount of each preservative:
(j) Specifying the colouring matter and the maximum quantities therefor which may be used in any article of food;
(k) Providing for exemption from this Act or of any requirements contained there and subject to such condition, if any as may be Specified of any article or class of articles of food;
(l) Prohibiting or regulating the manufacture, transport or sale of any article known to be used as an adulterant of food;
(m) Prohibiting or regulating-
(i) The addition of any water, or other diligent or adulterant to any article of food;
(ii) The abstraction of-any ingredient from any article of food
(iii) The sale of any article of food to which such addition or from which such abstraction has been made or which has been otherwise artificially treated;
(iv) The mixing of two or more articles of food which are similar in nature or appearance, ,
(n) Providing for the destruction of such articles of food as are not in accordance with the provisions of this Act or of the rules made thereunder
5[(2) Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days 6[which may be comprised in one session or in two or more successive sessions, and it before the expiry of ‘the session immediately following the session or the successive sessions aforesaid] both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be: so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]
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1. Ins. by Act 34 of 1976, Sec. 21 (w.e.f. I st April 1976).
2. Remunerated by Act 34 of 1976, Sec. 21 (w.e.f. Ist April 1976).
3. Subs. by ibid, for certain words (w.e.f. Ist April, 1976).
4. Subs. by Act 49 of 1964, Sec.13. for the words and fees payable therefor” (w.e.f- Ist March, 1965).
5. Subs. by Act 49 of 19b4. NCC. 13 (w.e.f. lst March, 1965).
6. Subs. by Act 34 of 1976, Sec. 21, for certain words (w.e.f. Ist April, 1976).
Section 24. Power of the State Government to make rules
(1) The State Government may, after consultation with Committee and subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act in i-natters not falling within the purview of Sec. 23.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may-
(a) Define the powers and duties of the Food (Health) Authority, 1[local authority and Local (Health) Authority under this Act 2[* * *]:
(b) Prescribe the forms of licences for the manufacture for sale, for the storage, for the sale and for the distribution of articles of food or any specified article of food or class of articles of food, the form of’ application for such licences the conditions subject to which such licences may be issued, the authority empowered to issue the same, 3[the fees payable therefor], the deposit of any sum as security for the performance of the conditions of the licences and the circumstances under which such licences or security 4[may be suspended, cancelled or forfeited]:
(c) Direct a fee to be paid for analysing any article of food or for any matter, for which a fee may be prescribed under this Act,
(d) Direct that the whole or any part of the fines imposed under this Act shall be paid to a local authority on realization
(e) Provide for the delegation of the powers and functions conferred by this Act on the State Government or the Food (Health) Authority to subordinate authorities or to local authorities.
(3) All rules made by the State Government under this Act, shall, as soon as possible after they are made, be laid before the respective State legislatures.
STATE AMENDMENT
Maharashtra. -In Sec. 24 o the principal Act, in sub -section (2), in Cl. (d) for the words “shall be paid to a local authority on realization”, the words “shall, on realization, be paid either to ct local authority. Or officer of the State Government is appointed, as the local authority, be credited to the Consolidated fund of the State” shall be substituted5.
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1. Subs. by Act 34 of 1976, Sec. 22, for “and local authority”.
2. Certain words omitted by Act 49 of 1964, Sec. 14 (w.e.f. I st March 1965).
3. Subs. by ibid. for the words “and the fees payable therefor”.
4. Subs. by Act 34 of 1976, Sec. 22, for the words “may be cancelled for forfeited” (w.e.f. Ist April 1976),
5. Vide Maharashtra Act (I of 1975) published in the Maharashtra Government Gazette, Pt. IV, dated the 16th October 1975 (w.e.f. 11 Th April 1977).
Section 25. Repeal and saving
(1) It immediately before the commencement of this Act, there is in force in any State to which this Act extends any law Corresponding to this Act, that corresponding law shall upon such commencement stand repealed.
(2) Notwithstanding the repeal by this Act of any corresponding law, all rules, regulations and bye-laws relating to the prevention of adulteration of food made under such corresponding law and in force immediately before the commencement of this Act shall, except where and so far as they are inconsistent with or repugnant to the provisions of this Act, continue in force until altered, amended or repealed by rules made under this Act1.
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1. In its application to the State of Jammu and Kashmir in Sec. 25 after sub-section (2), the following sub-section shall be inserted, namely:
November 30, 2014
Section 1. Short title, extent and commencement
(1) This Act may be called the Competition Act, 2002.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:
Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.
Section 2. Definitions
In this Act, unless the context otherwise requires,—
(a) “acquisition” means, directly or indirectly, acquiring or agreeing to acquire—
(i) shares, voting rights or assets of any enterprise; or
(ii) control over management or control over assets of any enterprise;
(b) “agreement” includes any arrangement or understanding or action in concert,—
(i) whether or not, such arrangement, understanding or action is formal or in writing; or
(ii) whether or not such arrangement, understanding or action is intended to be enforceable by legal proceedings;
(c) “cartel” includes an association of producers, sellers, distributors, traders or service providers who, by agreement amongst themselves, limit, control or attempt to control the production, distribution, sale or price of, or, trade in goods or provision of services;
(d) “Chairperson” means the Chairperson of the Commission appointed under sub-section (1) of section 8;
(e) “Commission” means the Competition Commission of India established under sub-section (1) of section 7;
(f) “consumer” means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, whether such purchase of goods is for resale or for any commercial purpose or for personal use;
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person whether such hiring or availing of services is for any commercial purpose or for personal use;
(g) “Director General” means the Director General appointed under sub-section (1) of section 16 and includes any Additional, Joint, Deputy or Assistant Directors General appointed under that section;
(h) “enterprise” means a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space.
Explanation.-—For the purposes of this clause,—
(a) “activity” includes profession or occupation;
(b) “article” includes a new article and “service” includes a new service;
(c) “unit” or “division”, in relation to an enterprise, includes—
(i) a plant or factory established for the production, storage, supply, distribution, acquisition or control of any article or goods;
(ii) any branch or office established for the provision of any service;
(i) “goods” means goods as defined in the Sale of Goods Act, 1930 (8 of 1930) and includes—
(A) products manufactured, processed or mined;
(B) debentures, stocks and shares after allotment;
(C) in relation to goods supplied, distributed or controlled in India, goods imported into India;
(j) “Member” means a Member of the Commission appointed under sub-section (/) of section8 and includes the Chairperson;
(k) “notification” means a notification published in the Official Gazette;
(l) “person” includes—
(i) an individual;
(ii) a Hindu undivided family;
(iii) a company;
(iv) a firm;
(v) an association of persons or a body of individuals, whether incorporated or not, in India or outside India;
(vi) any corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(vii) any body corporate incorporated by or under the laws of a country outside India;
(viii) a co-operative society registered under any law relating to cooperative societies;
(ix) a local authority;
(x) every artificial juridical person, not falling within any of the preceding sub-clauses;
(m) “practice” includes any practice relating to the carrying on of any trade by a person or an enterprise;
(n) “prescribed” means prescribed by rules made under this Act;
(o) “price”, in relation to the sale of any goods or to the performance of any services, includes every valuable consideration, whether direct or indirect, or deferred, and includes any consideration which in effect relates to the sale of any goods or to the performance of any services although ostensibly relating to any other matter or thing;
(p) “public financial institution” means a public financial institution specified under section 4A of the Companies Act, 1956 (1 of 1956) and includes a State Financial, Industrial or Investment Corporation;
(q) “regulations” means the regulations made by the Commission under section 64;
(r) “relevant market” means the market which may be determined by the Commission with reference to the relevant product market or the relevant geographic market or with reference to both the markets;
(s) “relevant geographic market” means a market comprising the area in which the conditions of competition for supply of goods or provision of services or demand of goods or services are distinctly homogenous and can be distinguished from the conditions prevailing in the neighbouring areas;
(t) “relevant product market” means a market comprising all those products or services which are regarded as interchangeable or substitutable by the consumer, by reason of characteristics of the products or services, their prices and intended use;
(u) “service” means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising;
(v) “shares” means shares in the share capital of a company carrying voting rights and includes—
(i) any security which entitles the holder to receive shares with voting rights;
(ii) stock except where a distinction between stock and share is expressed or implied;
(w) “statutory authority” means any authority, board, corporation, council, institute, university or any other body corporate, established by or under any Central, State or Provincial Act for the purposes of regulating production or supply of goods or provision of any services or markets therefor or any matter connected therewith or incidental thereto;
(x) “trade” means any trade, business, industry, profession or occupation relating to the production, supply, distribution, storage or control of goods and includes the provision of any services;
(y) “turnover” includes value of sale of goods or services;
(z) words and expressions used but not defined in this Act and defined in the Companies Act, 1956 (1 of 1956) shall have the same meanings respectively assigned to them in that Act.
Chapter II – Prohibition of Certain Agreements, Abuse of Dominant Position and Regulation of Combinations – Prohibition of agreements
Section 3. Anti competitive agreements
(1) No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.
(2) Any agreement entered into in contravention of the provisions contained in subsection (1) shall be void.
(3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which—
(a) directly or indirectly determines purchase or sale prices;
(b) limits or controls production, supply, markets, technical development, investment or provision of services;
(c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way;
(d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition:
Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.
Explanation.—For the purposes of this sub-section, “bid rigging” means any agreement, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding
(4) Any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provision of services, including—
(a) tie-in arrangement;
(b) exclusive supply agreement;
(c) exclusive distribution agreement;
(d) refusal to deal;
(e) resale price maintenance,
shall be an agreement in contravention of sub-section (1) if such agreement causes or is likely to cause an appreciable adverse effect on competition in India.
Explanation.—For the purposes of this sub-section,—
(a) “tie-in arrangement” includes any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods;
(b) “exclusive supply agreement” includes any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person;
(c) “exclusive distribution agreement” includes any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods;
(d) “refusal to deal” includes any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought;
(e) “resale price maintenance” includes any agreement to sell goods on condition that the prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged.
(5) Nothing contained in this section shall restrict—
(i) the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon him under—
(a) the Copyright Act, 1957 (14 of 1957);
(b) the Patents Act, 1970 (39 of 1970);
(c) the Trade and Merchandise Marks Act, 1958 (43 of 1958) or the Trade Marks Act, 1999 (47 of 1999);
(d) the Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999);
(e) the Designs Act, 2000 (16 of 2000);
(f) the Semi-conductor Integrated Circuits Layout-Design Act, 2000 (37 of 2000);
(ii) the right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provision of services for such export.
Section 4. Abuse of dominant position
Prohibition of abuse of dominant position
(1) No enterprise shall abuse its dominant position.
(2) There shall be an abuse of dominant position under sub-section (1), if an enterprise.—-
(a) directly or indirectly, imposes unfair or discriminatory—
(i) condition in purchase or sale of goods or service; or
(ii) price in purchase or sale (including predatory price) of goods or service,
Explanation.— For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or service referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory condition or price which may be adopted to meet the competition;
or
(b) limits or restricts—
(i) production of goods or provision of services or market therefore; or
(ii) technical or scientific development relating to goods or services to the prejudice of consumers; or
(c) indulges in practice or practices resulting in denial of market access; or
(d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or
(e) uses its dominant position in one relevant market to enter into, or protect, other relevant market.
Explanation.—For the purposes of this section, the expression—
(a) “dominant position” means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to—
(i) operate independently of competitive forces prevailing in the relevant market; or
(ii) affect its competitors or consumers or the relevant market in its favour;
(b) “predatory price” means the sale of goods or provision of services, at a. price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors.
Section 5. Combination
Regulation of combinations
The acquisition of one or more enterprises by one or more persons or merger or amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises, if—
(a) any acquisition where—
(i) the parties to the acquisition, being the acquirer and the enterprise, whose control, shares, voting rights or assets have been acquired or are being acquired jointly have,—
(A) either, in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or
(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars;
or
(ii) the group, to which the enterprise whose control, shares, assets or voting rights have been acquired or are being acquired, would belong after the acquisition, jointly have or would jointly have,—
(A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or
(B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars; or
(b) acquiring of control by a person over an enterprise when such person has already direct or indirect control over another enterprise engaged in production, distribution or trading of a similar or identical or substitutable goods or provision of a similar or identical or substitutable service, if—
(i) the enterprise over which control has been acquired along with the enterprise over which the acquirer already has direct or indirect control jointly have,—
(A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or
(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars;
or
(ii) the group, to which enterprise whose control has been acquired, or is being acquired, would belong after the acquisition, jointly have or would jointly have,—
(A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or
(B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars; or
(C) any merger or amalgamation in which—
(i) the enterprise remaining after merger or the enterprise created as a result of the amalgamation, as the case may be, have,—
(A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees, three thousand crores; or
(B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars;
or
(ii) the group, to which the enterprise remaining after the merger or the enterprise created as a result of the amalgamation, would belong after the merger or the amalgamation, as the case may be, have or would have,—
(A) either in India, the assets of the value of more than rupees four-thousand crores or turnover more than rupees twelve thousand crores; or
(B) in I ndia or outside India, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars.
Explanation.— For the purposes of this section,—
(a) “control” includes controlling the affairs or management by—
(i) one or more enterprises, either jointly or singly, over another enterprise or group;
(ii) one or more groups, either jointly or singly, over another group or enterprise;
(b) “group” means two or more enterprises which, directly or indirectly, are in a position to —
(i) exercise twenty-six per cent. or more of the voting rights in the other enterprise; or
(ii) appoint more than fifty percent, of the members of the board of directors in the other enterprise; or
(iii) control the management or affairs of the other enterprise;
(c) the value of assets shall be determined by taking the book value of the assets as shown, in the audited books of account of the enterprise, in the financial year immediately preceding the financial year in which the date of proposed merger falls, as reduced by any depreciation, and the value of assets shall include the brand value, value of goodwill, or value of copyright, patent, permitted use, collective mark, registered proprietor, registered trade mark, registered user, homonymous geographical indication, geographical indications, design or layout-design or similar other commercial rights, if any, referred to in sub-section (5) of section 3.
Section 6. Regulation of combinations
(1) No person or enterprise shall enter into a combination which causes or is likely to cause an appreciable adverse effect on competition within the relevant market in India and such a combination shall be void.
(2) Subject to the provisions contained in sub-section (1), any person or enterprise, who or which proposes to enter into a combination, may, at his or its option, give notice to the Commission, in the form as may be specified, and the fee which may be determined, by regulations, disclosing the details of the proposed combination, within seven days of—
(a) approval of the proposal relating to merger or amalgamation, referred to in clause (c) of section 5, by the board of directors of the enterprises concerned with such merger or amalgamation, as the case may be;
(b) execution of any agreement or other document for acquisition referred to in clause (a) of section 5 or acquiring of control referred to in clause (h) of that section.
(3) The Commission shall, after receipt of notice under sub-section (2), deal with such notice in accordance with the provisions contained in sections 29, 30 and 31.
(4) The provisions of this section shall not apply to share subscription or financing facility or any acquisition, by a public financial institution, foreign institutional investor, bank or venture capital fund, pursuant to any covenant of a loan agreement or investment agreement.
(5) The public financial institution, foreign institutional investor, bank or venture capital fund, referred to in sub-section (4\ shall, within seven days from the date of the acquisition, file, in the form as may be specified by regulations, with the Commission the details of the acquisition including the details of control, the circumstances for exercise of such control and the consequences of default arising out of such loan agreement or investment agreement, as the case may be.
Explanation.—For the purposes of this section, the expression—
(a) “foreign institutional investor” has the same meaning as assigned to it in clause (a) of the Explanation to section 115AD of the Income-tax Act, 1961(43 of 1961);
(b) “venture capital fund” has the same meaning as assigned to it in clause (b) of the Explanation to clause (23 FB) of section 10 of the Income-tax Act, 1961(43 of 1961);.
Chapter III – Competition Commission of India
Section 7. Establishment of Commission
(1) With effect from such date as the Central Government may, by notification, appoint, there shall be established, for the purposes of this Act, a Commission to be called the “Competition Commission of India”.
(2) The Commission shall be a body corporate by the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued,
(3) The head office of the Commission shall be at such place as the Central Government may decide from time to time.
(4) The Commission may establish offices at other places in India.
Section 8. Composition of Commission
(1) The Commission shall consist of a Chairperson and not less than two and not more than ten other Members to be appointed by the Central Government:
Provided that the Central Government shall appoint the Chairperson and a Member during the first year of the establishment of the Commission.
(2) The Chairperson and every other Member shall be a person of ability, integrity and standing and who, has been, or is qualified to be, a judge of a High Court; or, has special knowledge of, and professional experience of not less than fifteen years in international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which, in the opinion of the Central Government, may be useful to the Commission.
(3) The Chairperson and other Members shall be whole-time Members.
Section 9. Selection of Chairperson and other Members
The Chairperson and other Members shall be selected in the manner as may be prescribed.
Section 10. Term of office of Chairperson and other Members
(1) The Chairperson and every other Member shall hold office as such for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment:
Provided that no Chairperson or other Member shall hold office as such after he has attained,—
(a) in the case of the Chairperson, the age of sixty-seven years;
(b) in the case of any other Member, the age of sixty-five years.
(2) A vacancy caused by the resignation or removal of the Chairperson or any other Member under section 11 or by death or otherwise shall be filled by fresh appointment in accordance with the provisions of sections 8 and 9.
(3) The Chairperson and every other Member shall, before entering upon his office, make and subscribe to an oath of office and of secrecy in such form, manner and before such authority, as may be prescribed.
(4) In the event of the occurrence of a vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the senior-most Member shall act as the Chairperson, until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.
(5) When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, the senior-most Member shall discharge the functions of the Chairperson until the date on which the Chairperson resumes the charge of his functions.
Section 11. Resignation, removal and suspension of Chairperson and other members
(1) The Chairperson or any other Member may, by notice in writing under his hand addressed to the Central Government, resign his office:
Provided that the Chairperson or a Member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.
(2) Notwithstanding anything contained in sub-section (1), the Central Government may, by order, remove the Chairperson or any other Member from his office if such Chairperson or Member, as the case may be,—
(a) is, or at any time has been, adjudged as an insolvent; or
(b) has engaged at any time, during his term of office, in any paid employment, or
(c) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or
(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member; or
(e) has so abused his position as to render his continuance in office prejudicial to the public interest;
or
(f) has become physically or mentally incapable of acting as a Member.
(3) Notwithstanding anything contained in sub-section (2), no Member shall be removed from his office on the ground specified in clause (d) or clause (e) of that subsection unless the Supreme Court, on a reference being made to it in this behalf by the Central Government, has, on an inquiry, held by it in accordance with such procedure as may be prescribed in this behalf by the Supreme Court, reported that the Member, ought on such ground or grounds to be removed.
Section 12. Restriction on employment of Chairperson and other Members in certain cases
The Chairperson and other Members shall not, for a period of one year from the ‘ date on which they cease to hold office, accept any employment in, or connected with the management or administration of, any enterprise which has been a party to a proceeding before the Commission under this Act:
Provided that nothing contained in this section shall apply to any employment under the Central Government or a State Government or local authority or in any statutory authority or any corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).
Section 13. Financial and administrative powers of Member Administration
The Central Government shall designate any Member as Member Administration who shall exercise such financial and administrative powers as may be vested in him under the rules made by the Central Government:
Provided that the Member Administration shall have authority to delegate such of his financial and administrative powers as he may think fit to any other officer of the Commission subject to the condition that such officer shall, while exercising such delegated powers continue to act under the direction, superintendence and control of the Member Administration.
Section 14. Salary and allowances and other terms and conditions of service of Chairperson and other Members
(1) The salary, and the other terms and conditions of service, of the Chairperson and other Members, including travelling expenses, house rent allowance and conveyance facilities, sumptuary allowance and medical facilities shall be such as may be prescribed.
(2) The salary, allowances and other terms and conditions of service of the Chairperson or a Member shall not be varied to his disadvantage after appointment.
Section 15. Vacancy, etc. not to invalidate proceedings of Commission
No act or proceeding of the Commission shall be invalid merely by reason of—
(a) any vacancy in, or any defect in the constitution of, the Commission; or
(b) any defect in the appointment of a person acting as a Chairperson or as a Member; or
(c) any irregularity in the procedure of the Commission not affecting the merits of the case.
Section 16. Appointment of Director General, etc.
(1) The Central Government may, by notification, appoint a Director General and as many Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or officers, as it may think fit, for the purposes of assisting the Commission in conducting inquiry into contravention of any of the provisions of this Act and for the conduct of cases before the Commission and for performing such other functions as are, or may be, provided by or under this Act
(2) Every Additional, Joint, Deputy and Assistant Directors General or such other advisers, consultants and officers, shall exercise his powers, and discharge his functions, subject to the general control, supervision and direction of the Director General.
(3) The salary, allowances and other terms and conditions of service of the Director General and Additional, Joint, Deputy and Assistant Directors General or such other advisers, consultants or officers, shall be such as may be prescribed.
(4) The Director General and Additional, Joint, Deputy and Assistant Directors General or such other advisers, consultants or officers shall be appointed from amongst persons of integrity and outstanding ability and who have experience in investigation, and knowledge of .accountancy, management, business, public administration, international trade, law or economics and such other qualifications as may be prescribed.
Section 17. Registrar and officers and other employees of Commission
(1) The Commission may appoint a Registrar and such officers and other employees as it considers necessary for the efficient performance of its functions under this Act.
(2) The salaries and allowances payable to and other terms and conditions of service of the Registrar and officers and other employees of the Commission and the number of such officers and other employees shall be such as may be prescribed.
Chapter IV – Duties, Powers and Functions of Commission
Section 18. Duties of Commission
Subject to the provisions of this Act, it shall be the duty of the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India: Provided that the Commission may, for the purpose of discharging its duties or performing its functions under this Act, enter into any memorandum or arrangement with the prior approval of the Central Government, with any agency of any foreign country.
Section 19. Inquiry into certain agreements and dominant position of enterprise
(1) The Commission may inquire into any alleged contravention of the provisions contained in subsection (1) of section 3 or sub-section (1) of section 4 either on its own motion or on—
(a) receipt of a complaint, accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association; or
(b) a reference made to it by the Central Government or a State Government or a statutory authority.
(2) Without prejudice to the provisions contained in sub-section (1), the powers and functions of the Commission shall include the powers and functions specified in sub-sections (3) to (7).
(3) The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under section 3, have due regard to all or any of the following factors, namely:—
(a) creation of barriers to new entrants in the market;
(b) driving existing competitors out of the market;
(c) foreclosure of competition by hindering entry into the market;
(d) accrual of benefits to consumers;
(e) improvements in production or distribution of goods or provision of services;
(f) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services.
(4) The Commission shall, while inquiring whether an enterprise enjoys a dominant position or not under section 4, have due regard to all or any of the following factors, namely:—
(a) market share of the enterprise;
(b) size and resources of the enterprise;
(c) size and importance of the competitors;
(d) economic power of the enterprise including commercial advantages over competitors;
(e) vertical integration of the enterprises or sale or service network of such enterprises;
(f) dependence of consumers on the enterprise;
(g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise;
(h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers;
(i) countervailing buying power;
(j) market structure and size of market;
(k) social obligations and social costs;
(l) relative advantage, by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition;
(m) any other factor which the Commission may consider relevant for the inquiry.
(5) For determining whether a market constitutes a “relevant market” for the purposes of this Act, the Commission shall have due regard to the “relevant geographic market” and “relevant product market”.
(6) The Commission shall, while determining the “relevant geographic market”, have due regard to all or any of the following factors, namely:—
(a) regulatory trade barriers;
(b) local specification requirements;
(c) national procurement policies;
(d) adequate distribution facilities;
(e) transport costs;
(f) language;
(g) consumer preferences;
(h) need for secure or regular supplies or rapid after-sales services.
(7) The Commission shall, while determining the “relevant product market”, have due regard to all or any of the following factors, namely:—
(a) physical characteristics or end-use of goods;
(b) price of goods or service;
(c) consumer preferences;
(d) exclusion of in-house production;
(e) existence of specialised producers;
(f) classification of industrial products.
Section 20. Inquiry into combination by Commission
(1) The Commission may, upon its own knowledge or information relating to acquisition referred to in clause (a) of section 5 or acquiring of control referred to in clause (b) of section 5 or merger or amalgamation referred to in clause (c) of that section, inquire into whether such a combination has
caused or is likely to cause an appreciable adverse effect on competition in India:
Provided that the Commission shall not initiate any inquiry under this sub-section after the expiry of one year from the date on which such combination has taken effect.
(2) The Commission shall, on receipt of a notice under sub-section (2) of section 6 or upon receipt of a reference under sub-section (1) of section 21, inquire whether a combination referred to in that notice or reference has caused or is likely to cause an appreciable adverse effect on competition in India.
(3) Notwithstanding anything contained in section 5, the Central Government shall, on the expiry of a period of two years from the date of commencement of this Act and thereafter every two years, in consultation with the Commission, by notification, enhance or reduce, on the basis of the wholesale price index or fluctuations in exchange rate of rupee or foreign currencies, the value of assets or the value of turnover, for the purposes of that section.
(4) For the purposes of determining whether a combination would have the effect of or is likely to have an appreciable adverse effect on competition in the relevant market, the Commission shall have due regard to all or any of the following factors, namely:—
(a) actual and potential level of competition through imports in the market;
(b) extent of barriers to entry into the market;
(c) level of combination in the market;
(d) degree of countervailing power in the market;
(e) likelihood that the combination would result in the parties to the combination being able to significantly and sustainably increase prices or profit margins;
(f) extent of effective competition likely to sustain in a market;
(g) extent to which substitutes are available or arc likely to be available in the market;
(h) market share, in the relevant market, of the persons or enterprise in a combination, individually and as a combination;
(i) likelihood that the combination would result in the removal of a vigorous and effective competitor or competitors in the market;
(j) nature and extent of vertical integration in the market;
(k) possibility of a failing business;
(l) nature and extent of innovation;
(m) relative advantage, by way of the contribution to the economic development, by any combination having or likely to have appreciable adverse effect on competition;
(n) whether the benefits of the combination outweigh the adverse impact of the combination, if any.
Section 21. Reference by statutory authority
(1) Where in the course of a proceeding before any statutory authority an issue is raised by any party that any decision which such statutory authority has taken or proposes to take. is or would be, contrary to any of the provisions of this Act, then such statutory authority may make a reference in respect of such issue to the Commission.
(2) On receipt of a reference under sub-section (1), the Commission shall, after hearing the parties to the proceedings, give its opinion to such statutory authority which shall thereafter pass such order on the issues referred to in that sub-section as it deems fit:
Provided that the Commission shall give its opinion under this section within sixty days of receipt of such reference.
Section 22. Benches of Commission
(1) The jurisdiction, powers and authority of the Commission may be exercised by Benches thereof.
(2) The Benches shall be constituted by the Chairperson and each Bench shall consist of not less than two Members.
(3) Every Bench shall consist of at least one Judicial Member.
Explanation.—For the purposes of this sub-section, “Judicial Member” means a Member who is, or has been, or is qualified to be, a Judge of a High Court.
(4) The Bench over which the Chairperson presides shall be the Principal Bench and the other Benches shall be known as the Additional Benches.
(5) There shall be constituted by the Chairperson one or more Benches to be called the Mergers Bench or Mergers Benches, as the case may be, exclusively to deal with matters referred to in sections 5 and 6.
(6) The places at which the Principal Bench, other Additional Bench or Mergers Bench shall ordinarily sit, shall be such as the Central Government may, by notification, specify.
Section 23. Distribution of business of Commission amongst Benches
(1) Where any Benches are constituted, the Chairperson may, from time to time, by order, make provisions as to the distribution of the business of the Commission amongst the Benches and specify the matters, which may be dealt with by each Bench.
(2) If any question arises as to whether any matter falls within the purview of the business allocated to a Bench, the decision of the Chairperson thereon shall be final.
(3) The Chairperson may—
(i) transfer a Member from one Bench to another Bench; or
(ii) authorise the Members of one Bench to discharge also the functions of the Members of other Bench:
Provided that the Chairperson shall transfer, with the prior approval of the Central Government, a Member from one Bench situated in one city to another Bench situated in another city.
(4) The Chairperson may, for the purpose of securing that any case or matter which, having regard to the nature of the questions involved, requires or is required in his opinion or under the rules made by the Central Government in this behalf, to be decided by a Bench composed of more than two Members, issue such general or special orders as he may deem fit.
Section 24. Procedure for deciding a case where Members of a Bench differ in opinion
If the Members of a Bench differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.
Section 25. Jurisdiction of Bench
An inquiry shall be initiated or a complaint be instituted or a reference be made under this Act before a Bench within the local limits of whose jurisdiction—
(a) the respondent, or each of the respondents, where there are more than one, at the time of the initiation of inquiry or institution of the complaint or making of reference, as the case may be, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the respondents, where there are more than one, at the time of the initiation of the inquiry or institution of complaint or making of reference, as the case may be, actually and voluntarily resides or carries on business or personally works for gain provided that in such case either the leave of the Bench is given, or the respondents who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation.—A respondent, being a person referred to in sub-clause (iii) or sub-clause (vi) or sub-clause (vii) or sub-clause (viii) of clause (l) of section 2, shall be deemed to carry on business at its sole or principal place of business in India or at its registered office in India or where it has also a subordinate office at such place.
Section 26. Procedure for inquiry on complaints under Section 19
(1) On receipt of a complaint or a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information, under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter.
(2) The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission.
(3) Where on receipt of a complaint under clause (a) of sub-section (1) of section 19, the Commission is of the opinion that there exists no prima facie case, it shall dismiss the complaint and may pass such orders as it deems fit, including imposition of costs, if necessary.
(4) The Commission shall forward a copy of the report referred to in sub-section (2) to the parties concerned or to the Central Government or the State Government or the statutory authority, as the case may be.
(5) If the report of the Director General relates on a complaint and such report recommends that there is no contravention of any of the provisions of this Act, the complainant shall be given an opportunity to rebut the findings of the Director General.
(6) If, after hearing the complainant, the Commission agrees with the recommendation of the Director General, it shall dismiss the complaint.
(7) If, after hearing the complainant, the Commission is of the opinion that further inquiry is called for, it shall direct the complainant to proceed with the complaint.
(8) If the report of the Director General relates on a reference made under sub-section (/) and such report recommends that there is no contravention of the pro visions of this Act, the Commission shall invite comments of the Central Government or the State Government or the statutory authority, as the case may be, on such report and on receipt of such comments, the Commission shall return the reference if there is no prima facie case or proceed with the reference as a complaint if there is a prima facie case.
(9) If the report of the Director General referred to in sub-section (2) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act.
Section 27. Orders by Commission after inquiry into agreements or abuse of dominant position
Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely:—
(a) direct any enterprise or’association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, t’o discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be;
(b) impose such penalty, as it may deem fit which shall be not more than ten per cent. of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse:
Provided that in case any agreement referred to in section 3 has been entered into by any cartel, the Commission shall impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty equivalent to three times of the amount of profits made out of such agreement by the cartel or ten per cent. of the average of the turnover of the cartel for the last preceding three financial years, whichever is higher;
(c) award compensation to parties in accordance with the provisions contained in section 34;
(d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission;
(e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any:
(f) recommend to the Central Government for the division of an enterprise enjoying dominant position;
(g) pass such oilier order as it may deem fit.
Section 28. Division of enterprise enjoying dominant position
(1) The Central Government, on recommendation under clause (f) of section 27, may, notwithstanding anything contained in any other law for the time being in force, by order in writing, direct division of an enterprise enjoying dominant position to ensure that such enterprise does not abuse its dominant
position.
(2) In particular, and without prejudice to the generality of the foregoing powers, the order referred to in sub-section (1) may provide for all or any of the following matters, namely:—
(a) the transfer or vesting of property, rights, liabilities or obligations;
(b) the adjustment of contracts either by discharge or reduction of any liability or obligation or otherwise;
(c) the creation, allotment, surrender or cancellation of any shares, stocks or securities;
(d) the payment of compensation to any person who suffered any loss due to dominant position of such enterprise;
(e) the formation or winding up of an enterprise or the amendment of the memorandum of association or articles of association or any other instruments regulating the business of any enterprise;
(f) the extent to which, and the circumstances in which, provisions of the order affecting an enterprise may be altered by the enterprise and the registration thereof;
(g) any other matter which may be necessary to give effect to the division of the enterprise.
(3) Notwithstanding anything contained in any other law for the time being in force or in any contract or in any memorandum or articles of association, an officer of a company who ceases to hold office as such in consequence of the division of an enterprise shall not be entitled to claim any compensation for such cesser.
Section 29. Procedure for investigation of combination
(1) Where the Commission is of the opinion that a combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in India, it shall issue a notice to show cause to the parties to combination calling upon them to respond within thirty days of the receipt of the notice, as to why investigation in respect of such combination should not be conducted.
(2) The Commission, if it is prima facie of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition, it shall, within seven working days from the date of receipt of the response of the parties to the combination, direct the parties to the said combination to publish details of the combination within ten working days of such direction, in such manner, as it thinks appropriate, for bringing the combination to the knowledge or information of the public and persons affected or likely to be affected by such combination.
(3) The Commission may invite any person or member of the public, affected or likely to be affected by the said combination, to file his written objections, if any, before the Commission within fifteen working days from the date on which the details of the combination were published under sub-section (2).
(4) The Commission may, within fifteen working days from the expiry of the period specified in sub-section (3), call for such additional or other information as it may deem fit from the parties to the said combination.
(5) The additional or other information called for by the Commission shall be furnished by the parties referred to in sub-section (4) within fifteen days from the expiry of the period specified in sub-section (4).
(6) After receipt of all information and within a period of forty-five working days from the expiry of the period specified in sub-section (5), the Commission shall proceed to deal with the case in accordance with the provisions contained in section 31.
Section 30. Inquiry into disclosures under sub-section (2) of section 6
Where any person or enterprise has given a notice under sub-section (2) of section 6. The Commission shall inquire—
(a) whether the disclosure made in the notice is correct;
(b) whether the combination has, or is likely to have, an appreciable adverse effect on competition.
Section 31. Orders of Commission on certain combinations
(1) Where the Commission is of the opinion that any combination does not, or is not likely to, have an appreciable adverse effect on competition, it shall, by order, approve that combination including the combination in respect of which a notice has been given under sub-section (2) of section 6.
(2) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition, it shall direct that the combination shall not take effect.
(3) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, it may propose appropriate modification to the combination, to the parties to such
combination.
(4) The parties, who accept the modification proposed by the Commission under subsection (3), shall carry out such modification within the period specified by the Commission.
(5) If the parties to the combination, who have accepted the modification under subsection (4), fail to carry out the modification within the period specified by the Commission, such combination shall be deemed to have an appreciable adverse effect on competition and the Commission shall deal with such combination in accordance with the provisions of this Act.
(6) If the parties to the combination do not accept the modification proposed by the Commission under sub-section (3), such parties may, within thirty working days of the modification proposed by the Commission, submit amendment to the modification proposed by the Commission under that sub-section.
(7) If the Commission agrees with the amendment submitted by the parties under subsection (6), it shall, by order, approve the combination.
(8) If the Commission does not accept the amendment submitted under sub-section (6), then, the parties shall be allowed a further period of thirty working days within which such parties shall accept the modification proposed by the Commission under sub-section (3).
(9) If the parties fail to accept the modification proposed by the Commission within thirty working days referred to in sub-section (6) or within a further period of thirty working days referred to in sub-section (8), the combination shall be deemed to have an appreciable adverse effect on competition and be dealt with in accordance with the provisions of this Act.
(10) Where the Commission has directed under sub-section (2) that the combination shall not take effect or the combination is deemed to have an appreciable adverse effect on competition under sub-section (9), then, without prejudice to any penalty which may be imposed or any prosecution which may be initiated under this Act, the Commission may order that—
(a) the acquisition referred to in clause (a) of section 5; or
(b) the acquiring of control referred to in clause (b) of section 5; or
(c) the merger or amalgamation referred to in clause (c) of section 5, shall not be given effect to:
Provided that the Commission may, if it considers appropriate, frame a scheme to implement its order under this sub-section.
(11) If the Commission does not, on the expiry of a period of ninety working days from the date of publication referred to in sub-section (2) of section 29, pass an order or issue direction in accordance with the provisions of sub-section (1) or sub-section (2) or sub-section (7), the combination shall be deemed to have been approved by the Commission.
Explanation.—For the purposes of determining the period of ninety working days specified in this subsection, the period of thirty working days specified in sub-section (6) and a further period of thirty working days specified in sub-section (8) shall be excluded.
(12) Where any extension of time is sought by the parties to the combination, the period of ninety working days shall be reckoned after deducting the extended time granted at the request of the parties.
(13) Where the Commission has ordered a combination to be void, the acquisition or acquiring of control or merger or amalgamation referred to in section 5, shall be dealt with by the authorities under any other law for the time being in force as if such acquisition or acquiring of control or merger or amalgamation had not taken place and the parties to the combination shall be dealt with accordingly.
(14) Nothing contained in this Chapter shall affect any proceeding initiated or which may be initiated under any other law for the time being in force.
Section 32. Acts taking place outside India but having an effect on competition in India
The Commission shall, notwithstanding that,—
(a) an agreement referred to in section 3 has been entered into outside India; or
(b) any party to such agreement is outside India; or
(c) any enterprise abusing the dominant position is outside India; or
(d) a combination has taken place outside India; or
(e) any party to combination is outside India; or
(f) any other matter or practice or action arising out of such agreement or dominant position or combination is outside India, have power to inquire into such agreement or abuse of dominant position or combination if such agreement or dominant position or combination has, or is likely to have, an appreciable adverse effect on competition in the relevant market in India.
Section 33. Power to grant interim relief
(1) Where during an inquiry before the Commission, it is proved to the satisfaction of the Commission, by affidavit or otherwise, that an act in contravention of sub-section (1) of section 3 or sub-section (1) of section 4 or section 6 has been committed and continues to be committed or that such act is about to be committed, the Commission may, by order, grant a temporary injunction restraining any party from carrying on such act until the conclusion of such inquiry or until further orders, without giving notice to the opposite party, where it deems it necessary.
(2) Where during the inquiry before the Commission it is proved to the satisfaction of the Commission by affidavit or otherwise that import of any goods is likely to contravene sub-section (1) of section 3 or subsection (1) of section 4 or section 6, it may, by order, grant a temporary injunction restraining any party from importing such goods until the conclusion of such inquiry or until further orders, without giving notice to the opposite party, where it deems it necessary and a copy of such order granting temporary injunction shall be sent to the concerned authorities.
(3) The provisions of rules 2A to 5 (both inclusive) of Order XXXIX of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall, as far as may be, apply to a temporary injunction issued by the Commission under this Act, as they apply to a temporary injunction issued by a civil court, and any reference in any such rule to a suit shall be construed as a reference to any inquiry before the Commission.
Section 34. Power to award compensation
(1) Without prejudice to any other provisions contained in this Act, any person may make an application to the Commission for an order for the recovery of compensation from any enterprise for any loss or damage shown to have been suffered, by such person as a result of any contravention of the provisions of Chapter II, having been committed by such enterprise.
(2) The Commission may, after an inquiry made into the allegations mentioned in the application made under sub-section (1), pass an order directing the enterprise to make payment to the applicant, of the amount determined by it as realisable from the enterprise as compensation for the loss or damage caused to the applicant as a result of any contravention of the provisions of Chapter II having been committed by such enterprise.
(3) Where any loss or damage referred to in sub-section (1) is caused to numerous persons having the same interest, one or more of such persons may, with the permission of the Commission, make an application under that sub-section for and on behalf of, or for the benefit of, the persons so interested, and thereupon, the provisions of rule 8 of Order 1 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall apply subject to the modification that every reference therein to a suit or decree
shall be construed as a reference to the application before the Commission and the order of the Commission thereon.
Section 35. Appearance before Commission
A complainant or defendant or the Director General may either appear in person or authorise one or more chartered accountants or company secretaries or cost accountants or legal practitioners or any of his or its officers to present his or its case before the Commission.
Explanation.—For the purposes of this section,—
(a) “chartered accountant” means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;
(b) “company secretary” means a company secretary as defined in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980 (56 of 1980) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;
(c) “cost accountant” means a cost accountant as defined in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;
(d) “legal practitioner” means an advocate, vakil or an attorney of any High Court, and includes a pleader in practice.
Section 36. Power of Commission to regulate its own procedure
(1) The Commission shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules made by the Central Government, the Commission shall have powers to regulate its own procedure including the places at which they shall have their sittings, duration of oral hearings when granted, and times of its inquiry.
(2) The Commission shall have, for the purposes of discharging its functions umder this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908(5 of 1908), while trying a suit, in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses or documents;
(e) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;
(f) dismissing an application in default or deciding it ex parte;
(g) any other matter which may be prescribed.
(3) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Commission shall be deemed to be a civil court for the purposes of section 195 (2 of 1974) and Chapter XXVI of the Code of Criminal Procedure, 1973.
(4) The Commission may call upon such experts, from the fields of economics, commerce, accountancy, international trade or from any other discipline as it deems necessary, to assist the Commission in the conduct of any inquiry or proceeding before it.
(5) The Commission may direct any person—
(a) to produce before the Director General or the Registrar or an officer authorised by it, such,books, accounts or other documents in the custody or under the control of such person so directed as may be specified or described in the direction, being documents relating to any trade, the examination of which may be required for the purposes of this Act;
(b) to furnish to the Director General or the Registrar or any officer authorised by it, as respects the trade or such other information as may be in his possession in relation to the trade carried on by such person, as may be required for the purposes of this Act.
(6) If the Commission is of the opinion that any agreement referred to in section 3 or “abuse of dominant position referred to in section 4 or the combination referred to in section 5 has caused or is likely to cause an appreciable adverse effect on competition in the relevant market in India and it is necessary to protect, without further delay, the interests of consumers and other market participants in India, it may conduct an inquiry or adjudicate upon any matter under this Act after giving a reasonable oral hearing to the parties concerned.
Section 37. Review of orders of Commission
Any person aggrieved by an order of the Commission from which an appeal is allowed by this Act but no appeal has been preferred, may, within thirty days from the date of the order, apply to the Commission for review of its order and the Commission may make such order thereon as it thinks fit:
Provided that the Commission may entertain a review application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from preferring the application in time:
Provided further that no order shall be modified or set aside without giving an opportunity of being heard to the person in whose favour the order is given and the Director General where he was a party to the proceedings.
Section 38. Rectification of orders
(1) With a view to rectifying any mistake apparent from the record, the Commission may amend any order passed by it under the provisions of this Act.
(2) Subject to the other provisions of this Act, the Commission may make—
(a) an amendment under sub-section (1) of its own motion;
(b) an amendment for rectifying any such mistake which has been brought to its notice by any party to the order.
Explanation.—- For the removal of doubts, it is hereby declared that the Commission shall not, while rectifying any mistake apparent from record, amend substantive part of its order passed under the provisions of this Act.
Section 39. Execution of orders of Commission
Every order passed by the Commission under this Act shall be enforced by the Commission in the same manner as if it were a decree or order made by a High Court or the principal civil court in a suit pending therein and it shall be lawful for the Commission to send, in the event of its inability to execute it, such order to the High Court or the principal civil court, as the case may be, within the local limits of whose jurisdiction,—
(a) in the case of an order against a person referred to in sub-clause (iii) or sub-clause (vi) or subclause (vii) of clause (l) of section 2, the registered office or the sole or principal place of business of the person in India or where the person has also a subordinate office, that subordinate office, is
situated;
(c) in the case of an order against any other person, the place, where the person concerned voluntarily resides or carries on business or personally works for gain, is situated, and thereupon the court to which the order is so sent shall execute the order as if it were a decree or order sent to it for execution.
Section 40. Appeal
Any person aggrieved by any decision or order of the Commission may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Commission to him on one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908):
Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days:
Provided further that no appeal shall lie against any decision or order of the Commission made with the consent of the parties.
Chapter V – Duties of Director General
Section 41. Director General to investigate contravention
(1) The Director General shall, when so directed by the Commission, assist the Commission in investigating into any contravention of the provisions of this Act or any rules or regulations made thereunder.
(2) The Director General shall have all the powers as are conferred upon the Commission under subsection (2) of section 36.
(3) Without prejudice to the provisions of sub-section (2), sections 240 and 240A of the Companies Act, 1956 (1 of 1956), so far as may be, shall apply to an investigation made by the Director General or any other person investigating under his authority, as they apply to an inspector appointed under that Act.
Chapter VI – Penalties
Section 42. Contravention of orders of Commission
(1) Without prejudice to the provisions of this Act, if any person contravenes, without any reasonable ground, any order of the Commission, or any condition or restriction subject to which any approval, sanction, direction or exemption in relation to any matter has been accorded, given, made or granted under this Act or fails to pay the penalty imposed under this Act, he shall be liable to be detained in civil prison for a term which may extend to one year, unless in the meantime the Commission directs his release and he shall also be liable to a penalty not exceeding rupees ten lakhs.
(2) The Commission may, while making an order under this Act, issue such directions to any person or authority, not inconsistent with this Act, as it thinks necessary or desirable, for the proper implementation or execution of the order, and any person who commits breach of. or fails to comply with, any obligation imposed on him under such direction, may be ordered by the Commission to be detained in civil prison for a term not exceeding one year unless in the meantime the Commission directs his release and he shall also be liable to a penalty not exceeding rupees ten lakhs.
Section 43. Penalty for failure to comply with directions of Commission and Director General
If any person fails to comply with a direction given by—
(a) the Commission under sub-section (5) of section 36; or
(b) the Director General while exercising powers referred to in sub-section (2) of section 41, the Commission shall impose on such person a penalty of rupees one lakh for each day during which such failure continues.
Section 44. Penalty for making false statement or omission to furnish material information
If any person, being a party to a combination,—
(a) makes a statement which is false in any material particular, or knowing it to be false; or
(b) omits to state any material particular knowing it to be material, such person shall be liable to a penalty which shall not be less than rupees fifty lakhs but which may extend to rupees one crore, as may be determined by the Commission.
Section 45. Penalty for offences in relation to furnishing of information
(1) Without prejudice to the provisions of section 44, if any person, who furnishes or is required to furnish under this Act any particulars, documents or any information,—
(a) makes any statement or furnishes any document which he knows or has reason to believe to be false in any material particular; or
(b) omits to state any material fact knowing it to be material; or
(c) wilfully alters, suppresses or destroys any document which is required to be furnished as aforesaid, the Commission shall impose on such person a penalty which may extend to rupees ten lakhs.
(2) Without prejudice to the provisions of sub-section (1), the Commission may also pass such other order as it deems fit.
Section 46. Power to impose lesser penalty
The Commission may, if it is satisfied that any producer, seller, distributor, trader or service provider included in any cartel, which is alleged to have violated section 3, has made a full and true disclosure in respect of the alleged violations and such disclosure is vital, impose upon such producer, seller, distributor, trader or service provider a lesser penalty as it may deem fit, than leviable under this Act or the rules or the regulations:
Provided that lesser penalty shall not be imposed by the Commission in cases where proceedings for the violation of any of the provisions of this Act or the rules or the regulations have been instituted or any investigation has been directed to be made under section 26 before making of such disclosure:
Provided further that lesser penalty shall be imposed by the Commission only in respect of a producer, seller, distributor, trader or service provider included in the cartel, who first made the full, true and vital disclosures under this section:
Provided also that the Commission may, if it is satisfied that such producer, seller, distributor, trader or service provider included in the cartel had in the course of proceedings,—
(a) not complied with the condition on which the lesser penalty was imposed by the Commission; or
(b) had given false evidence; or
(c) the disclosure made is not vital,
and thereupon such producer, seller, distributor, trader or service provider may be tried for the offence with respect to which the lesser penalty was imposed and shall also be liable to the imposition of penalty to which such person has been liable, had lesser penalty not been imposed.
Section 47. Crediting sums realised by way of penalties to Consolidated Fund of India
All sums realised by way of penalties under this Act shall be credited to the Consolidated Fund of India.
Section 48. Contravention by companies
(1) Where a person committing contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable lo any punishment if he proves that the contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such contravention.
(2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that contravention and shall be liable to be proceeded against and punished accordingly.
Explanation.—For the purposes of this section,—
(a)”company” means a body corporate and includes a firm or other association of individuals: and
(b) “director”, in relation to a firm, means a partner in the firm.
Chapter VII – Competition Advocacy
Section 49. Competition advocacy
(1) In formulating a policy on competition (including review of laws related to competition), the Central Government may make a reference to the Commission for its opinion on possible effect of such policy on competition and on receipt of such a reference, the Commission shall, within sixty days of making such reference, give its opinion to the Central Government, which may thereafter formulate the policy as it deems fit.
(2) The opinion given by the Commission under sub-section (1) shall not be binding upon the Central Government in formulating such policy.
(3) The Commission shall take suitable measures, as may be prescribed, for the promotion of competition advocacy, creating awareness and imparting training about competition issues.
Chapter VIII – Finance, Accounts and Audit
Section 50. Grants by Central Government
The Central Government may, after due appropriation made by Parliament by law in this behalf, make to the Commission grants of such sums of money as the Government may think fit for being utilised for the purposes of this Act.
Section 51. Constitution of Fund
(1) There shall be constituted a fund to be called the “Competition Fund” and there shall be credited thereto—
(a) all Government grants received by the Commission;
(b) the monies received as costs from parties to proceedings before the Commission;
(d) the fees received under this Act;
(e) the interest accrued on the amounts referred to in clauses (a) to (c).
(2) The Fund shall be applied for meeting—
(a) the salaries and allowances payable to the Chairperson and other Members and the administrative expenses including the salaries, allowances and pension payable to the Director General, Additional, Joint, Deputy or Assistant Directors General, the Registrar and” officers and other employees of the Commission;
(b) the other expenses of the Commission in connection with the discharge of its functions and for the purposes of this Act.
(3) The Fund shall be administered by a committee of such Members of the Commission as may be determined by the Chairperson.
(4) The committee appointed under sub-section (3) shall spend monies out of the Fund for carrying out the objects for which the Fund has been constituted.
Section 52. Accounts and Audit
(1)The Commission shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India.
(2) The accounts of the Commission shall be audited by the Comptroller and Auditor-General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Commission to the Comptroller and Auditor-General of India.
Explanation.—For the removal of doubts, it is hereby declared that the orders of the Commission, being matters appealable to the Supreme Court, shall not be subject to audit under this section.
(3) The Comptroller and Auditor-General of India and any other person appointed by him in connection with the audit of the accounts of the Commission shall have the same rights, privileges and authority in connection with such audit as the Comptroller and Auditor-General of India generally has, in connection with the audit of the Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Commission.
(4) The accounts of the Commission as certified by the Comptroller and Auditor-General of India or any other person appointed by him in this behalf together with the audit report thereon shall be forwarded annually to the Central Government and that Government shall cause the same to be laid before each House of Parliament.
Section 53. Furnishing of returns, etc., to Central Government
(1) The Commission shall furnish to the Central Government at such time and in such form and manner as may be prescribed or as the Central Government may direct, such returns and statements and such particulars in regard to any proposed or existing measures for the promotion of competition advocacy, creating awareness and imparting training about competition issues, as the Central Government may, from time to time, require.
(2) The Commission shall prepare once in every year, in such form and at such time as may be prescribed, an annual report giving a true and full account of its activities during the previous year and copies of the report shall be forwarded to the Central Government.
(3) A copy of the report received under sub-section (2) shall be laid, as soon as may be after it is received, before each House of Parliament.
Chapter IX – Miscellaneous
Section 54. Power to exempt
The Central Government may, by notification, exempt from the application of this Act, or any provision thereof, and for such period as it may specify in such notification—
(a) any class of enterprises if such exemption is necessary in the interest of security of the State or public interest;
(b) any practice or agreement arising out of and in accordance with any obligation assumed by India under any treaty, agreement or convention with any other country or countries;
(c) any enterprise which performs a sovereign function on behalf of the Central Government or a State Government:
Provided that in case an enterprise is engaged in any activity including the activity relatable to the sovereign functions of the Government, the Central Government may grant exemption only in respect of activity relatable to the sovereign functions.
Section 55. Power of Central Government to issue directions
(1) Without prejudice to the foregoing provisions of this Act, the Commission shall, in exercise of its powers or the performance of its functions under this Act, be bound by such directions on questions of policy, other than those relating to technical and administrative matters, as the Central Government may give in writing to it from time to time:
Provided that the Commission shall, as far as practicable, be given an opportunity to express its views before any direction is given under this sub-section.
(2) The decision of the Central Government whether a question is one of policy or not shall be final.
Section 56. Power of Central Government to supersede Commission
(1) If at any time the Central Government is of the opinion—
(a) that on account of circumstances beyond the control of the Commission, it is unable to discharge the functions or perform the duties imposed on it by or under the provisions of this Act; or
(b) that the Commission has persistently made default in complying with any direction given by the Central Government under this Act or in the discharge of the functions or performance of the duties imposed on it by or under the provisions of this Act and as a result of such default the financial position of the Commission or the administration of the Commission has suffered; or
(c) that circumstances exist which render it necessary in the public interest so to do, the Central Government may, by notification and for reasons to be specified therein, supersede the Commission for such period, not exceeding six months, as may be specified in the notification:
Provided that before issuing any such notification, the Central Government shall give a reasonable opportunity to the Commission to make representations against the proposed supersession and shall consider representations, if any, of the Commission.
(2) Upon the publication of a notification under sub-section (1) superseding the Commission,—
(a) the Chairperson and other Members shall as from the date of supersession, vacate their offices as such;
(b) all the powers, functions and duties which may, by or under the provisions of this Act, be exercised or discharged by or on behalf of the Commission shall, until the Commission is reconstituted under sub-section (3), be exercised and discharged by the Central Government or such authority as the Central Government may specify in tins behalf;
(c) all properties owned or controlled by the Commission shall, until the Commission is reconstituted under sub-section (3), vest in the Central Government.
(3) On or before the expiration of the period of supersession specified in the notification issued under subsection (1), the Central Government shall reconstitute the Commission by a fresh appointment of its Chairperson and other Members and in such case any person who had vacated his office under clause (a) of sub-section (2) shall not be deemed to be disqualified for re-appointment.
(4) The Central Government shall cause a notification issued under sub-section (1) and a full report of any action taken under this section and the circumstances leading to such action to be laid before each House of Parliament at the earliest.
Section 57. Restriction on disclosure of information
No information relating to any enterprise, being an information which has been obtained by or on behalf of the Commission for the purposes of this Act, shall, without the previous permission in writing of the enterprise, be disclosed otherwise than in compliance with or for the purposes of this Act or any other law for the time being in force.
Section 58. Members, Director General, Registrar, officers and other employees, etc. of Commission to be public servants
The Chairperson and other Members and the Director General, Additional, Joint, Deputy or Assistant Directors General and Registrar and officers and other employees of the Commission shall be deemed, while acting or purporting to act in pursuance of any of the provisions of this Act, to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).
Section 59. Protection of action taken in good faith
No suit, prosecution or other legal proceedings shall lie against the Central Government or Commission or any officer of the Central Government or the Chairperson or any Member or the Director-General, Additional, Joint, Deputy or Assistant Directors General or Rcgistrar or officers or other employees of the Commission for anything which is in good faith done or intended to be done under this Act or the rules or regulations made thereunder.
Section 60. Act to have overriding effect
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
Section 61. Exclusion of jurisdiction of civil courts
No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Commission is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
Section 62. Application of other laws not barred
The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.
Section 63. Power to make rules
(1) The Central Government may, by notification, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-—
(a) the manner in which the Chairperson and other Members shall be selected under section 9;
(b) the form and manner in which and the authority before whom the oath of office and of secrecy shall be made and subscribed to under sub-section (3) of section 10;
(c) the financial and administrative powers which may be vested in the Member Administration under section 13;
(d) the salary and the other terms and conditions of service including travelling expenses, house rent allowance and conveyance facilities, sumptuary allowance and medical facilities to be provided to the Chairperson and other Members under sub-section (1) of section 14;
(e) the salary, allowances and other terms and conditions of service of the Director General, Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or officers under sub-section (3) of section 16;
(f) the qualifications for appointment of the Director General, Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or officers under sub-section (4) of section 16;
(g) the salaries and allowances and other terms and conditions of service of the Registrar and officers and other employees payable, and the number of such officers and employees under sub-section (2) of section 17;
(h) for securing any case or matter which requires to be decided by a Bench composed of more than two Members under sub-section (4) of section 23;
(i) any other matter in respect of which the Commission shall have power under clause (g) of subsection (2) of section 36;
(j) the promotion of competition advocacy, creating awareness and imparting training about competition issues under sub-section (3) of section 49;
(k) the form in which the annual statement of accounts shall be prepared under sub-section (1) of section 52;
(l) the time within which and the form and manner in which the Commission may furnish returns, statements and such particulars as the Central Government may require under sub-section (1) of section 53;
(m) the form in which and the time within which the annual report shall be prepared under sub-section (2) of section 53;
(n) the manner in which the monies transferred to the Central Government shall be dealt with by that Government under the fourth proviso to sub-section (2) of section 66;
(o) any other matter which is to be, or may be, prescribed, or in respect of which provision is to be, or may be, made by rules.
(3) Every notification issued under sub-section (3) of section 20 and section 54 and every rule made under this Act by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session, or in two or more successive sessions, and if. before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or rule, or both Houses agree that the notification should not be issued or rule should not be made, the notification or rule shall thereafter have effect only in such modified form or
be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification or rule, as the case may be.
Section 64. Power to make regulations
(1) The Commission may, by notification, make regulations consistent with tills Act and the rules made thereunder to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing provisions, such regulations may provide for all or any of the following matters, namely:—
(a) the cost of production to be determined under clause (b) of the Explanation to section 4;
(b) the form of notice as may be specified and the fee which may be determined under sub-section (2) of section 6;
(c) the form in which details of the acquisition shall be filed under subsection (5) of Section 6;
(d) the fee which may be determined under clause (a) of sub-section (1) of section 19;
(e) any other matter in respect of which provision is to be, or may be, made by regulations.
(3) Every regulation made under this Act shall be laid, as soon as may be after it is made. before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation, or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.
Section 65. Power to remove difficulties
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as may appear to it to be necessary for removing the difficulty:
Provided that no such order shall be made under this section after the expiry of a period of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.
Section 66. Repeal and saving
(1) The Monopolies and Restrictive Trade Practices Act, 1969 is hereby repealed and the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of section 5 of the said Act
(hereinafter referred to as the repealed Act) (54 of 1969) shall stand dissolved.
(2) On the dissolution of the Monopolies and Restrictive Trade Practices Commission, the person appointed as the Chairman of the Monopolies and Restrictive Trade Practices Commission and every other person appointed as Member and Director General of Investigation and Registration, Additional, Joint, Deputy, or Assistant Directors General of Investigation and Registration and any officer and other employee of that Commission and holding office as such immediately before such dissolution shall vacate their respective offices and such Chairman and other Members shall be entitled to claim compensation not exceeding three months’ pay and allowances for the premature termination of term of their office or of any contract of service:
Provided that the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices Commission appointed on deputation basis to the Monopolies and Restrictive Trade Practices Commission, shall, on such dissolution, stand reverted to his parent cadre, Ministry or Department, as the case may be:
Provided further that the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices Commission, employed on regular basis by the Monopolies and Restrictive Trade Practices Commission, shall become, on and from such dissolution, the officer and employee, respectively, of the Central Government with the same rights and privileges as to pension, gratuity and other like matters as would have been admissible to him if the rights in relation to such Monopolies and Restrictive Trade Practices Commission had not been transferred to, and vested in, the Central Government and shall continue to do so unless and until his employment in the Central Government is duly terminated or until his remuneration, terms and conditions of employment are duly altered by that Government:
Provided also that notwithstanding anything contained in the Industrial Disputes Act, 1947(14 of 1947), or in any other law for the time being in force, the transfer of the services of any Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee, employed in the Monopolies and Restrictive Trade Practices Commission, to the Central Government shall not entitle such Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee any compensation under this Act or any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority:
Provided also that where the Monopolies and Restrictive Trade Practices Commission has established a provident fund, superannuation, welfare or other fund for the benefit of the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or the officers and other employees employed in the Monopolies and Restrictive Trade Practices Commission, the monies relatable to the-officers and other employees whose services have been transferred by or under this Act to the Central Government shall, out of the monies standing, on the dissolution of the Monopolies and Restrictive Trade Practices Commission to the credit of such provident fund, superannuation, welfare or other fund, stand transferred to, and vest in, the Central Government and such monies which stand so transferred shall be dealt with by the said Government in such manner as may be prescribed.
(3) All cases pertaining to monopolistic trade practices or restrictive trade practices pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement’of this Act, including such cases, in which any unfair trade practice has also been alleged, shall, on such commencement, stand transferred to the Competition Commission of India and shall be adjudicated by that Commission in accordance with the provisions of the repealed Act as if that Act had not been repealed.
(4) Subject to the provisions of sub-section (3), all cases pertaining to unfair trade practices other than those referred to in clause (x) of sub-section (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement of this Act shall, on such commencement, stand transferred to the National Commission constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission shall dispose of such cases as if they were cases filed under that Act:
Provided that the National Commission may, if it considers appropriate, transfer any case transferred to it under this sub-section, to the concerned State Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986) and that State Commission shall dispose of such case as if it was filed under that Act.
(5) All cases pertaining to unfair trade practices referred to in clause (x) of sub-section (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India, and the Competition Commission of India shall dispose of such cases as if they were cases filed under that Act,
(6) All investigations or proceedings, other than those relating to unfair trade practices, pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India, and the Competition Commission of India may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.
(7) All investigations or proceedings, relating to unfair trade practices, other than those referred to in clause (x) of sub-section (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969(54 of 1969) and pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the National Commission constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.
(8) All investigations or proceedings relating to unfair trade practices referred to in clause (x) of subsection (1) of section 36A of the Monopolies and Restrictive Trade Practices Act, 1969(54 of 1969), and pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India and the Competition Commission of India may conduct or order for conduct of such investigation in the manner as it deems fit.
(9) Save as otherwise provided under sub-sections (3) to (8), all cases or proceedings pending before the Monopolies and Restrictive Trade Practices Commission shall abate.
(10) The mention of the particular matters referred to in sub-sections (3) to (8) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal.
November 30, 2014
Section 1. Short title.
This Act may be called the Citizenship Act, 1955.
Section 2. Interpretation.
(1) In this Act, unless the context otherwise requires,
(a) “a Government in India” means the Central Government or a State Government;
1[(b) “illegal migrant” means a foreigner who has entered into India
(i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or
(ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time;]
(d) “Indian consulate” means the office of any consular officer of the Government of India where a register of births is kept, or where there is no such office, such office as may be prescribed;
(e) “minor” means a person who has not attained the age of eighteen years:
2[(ee) “overseas citizen of India” means a person registered as an overseas citizen of India by the Central Government under section 7A;]
(f) “person” does not include any company or association or body of individuals, whether incorporated or not;
(g) “prescribed” means prescribed by rules made under this Act;
3[***]
(h) “undivided India” means India as defined in the Government of India Act, 1935, as originally enacted.
STATEMENT OF OBJECTS AND REASONS [The Citizenship (Amendment) Act, 2005]
To expand the scope of grant of Overseas Citizenship of India to Persons of Indian Origin of all countries except Pakistan and Bangladesh.
(2) For the purposes of this Act, a person born aboard a registered ship or
aircraft, or aboard an unregistered ship or aircraft of the Government of any country, shall be deemed to have been born in the place in which the ship or aircraft was registered or, as the case may be, in that country.
(3) Any reference in this Act to the status or description of the father of a person at the time of that person’s birth shall, in relation to a person born after the death of his father, be construed as a reference to the status or description of the father at the time of the father’s death; and where that death occurred before, and the birth occurs after, the commencement of this Act, the status or description which would have been applicable to the father had he died after the commencement of this Act shall be deemed to be the status or description applicable to him at the time of his death.
(4) For the purposes of this Act, a person shall be deemed to be of full age
if he is not a minor and of full capacity if he is not of unsound mind.
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1. Subs. by Act 6 of 2004, sec. 2, for clauses (b) and (el-and the proviso to clause (c) (w.e.f, 3-12-2004). (See Annexe 1) .
2. Subs. by the Citizenship (Amendment) Act, 2005, sec. 2 (w.r.e.f, 28-6-2005), for clause “(ee) “overseas citizen of India” means a person who-
(i) is of Indian origin being a citizen of a specified country, or
(ii) was a citizen of India immediately before becoming a citizen of a specified country, and is registered as an overseas citizen of India by the Central Government under subsection (1) of section 7A;
3. Clause (gg) omitted by the Citizenship (Amendment) Act, 2005, sec. 2 (w.r.e.f, 28-6-2005).
Clause (gg) prior to its omission stood as:
“(gg) “specified country” means a country specified in the Fourth Schedule:
Provided that the Central Government may, by notification in the Official Gazette, amend the said Schedule by way of addition or omission of any entry therein:
Provided further that every notification issued under this clause shall, as soon as may be, after it is made, be laid before each House of Parliament”.
Acquisition of Citizenship
Section 3. Citizenship by birth.
1[Citizenship by birth. (1) Except as provided in sub-section (2), every person born in India,-
(a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987;
(b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth;
(c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where-
(i) both of his parents are citizens of India; or
(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth,
shall be a citizen of India by birth.
(2) A person shall not be a citizen of India by virtue of this section if at the time of his birth-
(a) either his father or mother possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she, as the case may be, is not a citizen of India; or
(b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy.]
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1. Subs. by Act 6 of 2004, sec. 3, for section 3 (w.e.f. 3-12-2004). (See Annexe 1)
Section 4. Citizenship by descent.
1[(1) A person born outside India shall be a citizen of India by descent,-
(a) on or after the 26th day of January, 1950, but before the 10th day of December, 1992, if his father is a citizen of India at the time of his birth; or
(b) on or after the 10th day of December, 1992, if either of his parents is a citizen of India at the time of his birth:
Provided that if the father of a person referred to in clause (a) was a citizen of India by descent only, that person shall not be a citizen of India by virtue of this section unless-
(a) his birth is registered at an Indian consulate within one year of its occurrence or the commencement of this Act, whichever is later, or, with the permission of the Central Government, after the expiry of the said period; or
(b) his father is, at the time of his birth, in service under a Government in India:
Provided further that if either of the parents of a person referred to in clause (b) was a citizen of India by descent only, that person shall not be a citizen of India by virtue of this section unless- .
(a) his birth is registered at an Indian consulate within one year of its occurrence or on or after the 10th day of December, 1992, whichever is later, or, with the permission of the Central Government, after the expiry of the said period; or
(b) either of his parents is, at the time of his birth, in service under a Government in India:
Provided also that on or after the commencement of the Citizenship (Amendment) Act, 2003, a person shall not be a citizen of India by virtue of this section, unless his birth is registered at an Indian consulate in such form and in such manner, as may be prescribed,-
(i) within one year of its occurrence or the commencement of the Citizenship (Amendment) Act, 2003, whichever is later; or
(ii) with the permission of the Central Government, after the expiry of the said period:
Provided also that no such birth shall be registered unless the parents of such person declare, in such form and in such manner as may be prescribed, that the minor does not hold the passport of another country.
(lA) A minor who is a citizen of India by virtue offhis section and is also a citizen of any other country shall cease to be a citizen of India if he does not renounce the citizenship or nationality of another country within six months of attaining full age.]
(2) if the Central Government so directs, a birth shall be deemed for the purposes of this section to have been registered with its permission, notwithstanding that its permission was not obtained before the registration.
(3) For the purposes of the proviso to sub-section (I), any 2[person] born outside undivided India who was, or was deemed to be, a citizen of India at the commencement of the Constitution shall be deemed to be a citizen of India by descent only.
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1. Subs. by Act 6 of 2004, sec. 4, for sub-section (1) (w.e.f. 3-12-2004). (See Annexe 1)
2. Subs. by Act 39 of 1992, sec. 2, for “any male person” (w.e.f. 10-12-1992).
Section 5. Citizenship by registration.
1[(1) Subject to the provisions of this section and such other conditions and restrictions as may be prescribed, the Central Government may, on an application made in this behalf, register as a citizen of India any person not being an illegal migrant who is not already such citizen by virtue of the Constitution or of any other provision of this Act if he belongs to any of the following categories, namely:-
(a) a person of Indian origin who are ordinarily resident in India for seven years before making an application for registration;
(b) a person of Indian origin who is ordinarily resident in any country or place outside undivided India;
(c) a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;
(d) minor children of persons who are citizens of India;
(e) a person of full age and capacity whose parents are registered as citizens of India under clause (a) of this sub-section or sub-section (1) of section 6;
(f) a person of full age and capacity who, or either of his parents, was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration;
(g) a person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for 2[one year] before making an application for registration.
STATEMENT OF OBJECTS AND REASONS [The Citizenship (Amendment) Act, 2005]
To reduce the period of residence in India from two years to one year for the persons registered as Overseas Citizens of India to acquire Indian citizenship.
Explanation 1.- For the purposes of clauses (a) and (c), an applicant shall be deemed to be ordinarily resident in India if-
(i) he has resided in India throughout the period of twelve months immediately before making, an application for registration; and
(ii) he has resided in India during the eight years immediately preceding the said period of twelve months for a period of not less than six
years.
Explanation 2.- For the purposes of this sub-section, a person shall be deemed to be of Indian origin if he, or either of his parents, was born in undivided India or in such other territory which became part of India after the 15th day of August, 1947.}
(2) No person being of full age shall be registered as a citizen of India under sub-section (1) until he has taken the oath of allegiance in the form specified in the Second Schedule.
(3) No person who has renounced, or has been deprived of, his Indian citizenship or whose Indian citizenship has terminated, under this Act shall be registered as a citizen of India under sub-section (1) except by order of the Central Government.
(4) The Central Government may, if satisfied that there are special circumstances justifying such registration, cause any minor to be registered as a citizen of India.
(5) A person registered under this section shall be a citizen of India by registration as from the date on which he is so registered; and a person registered under the provisions of clause(b)(ii) of article 6 or article 8 of the Constitution shall be deemed to be a citizen of India by registration as from the commencement of the Constitution or the date on which he was so registered, whichever may be later.
3[(6) If the Central Government is satisfied that circumstances exist which render it necessary to grant exemption from the residential requirement under clause (c) of sub-section (1) to any person or a class of persons, it may, for reasons to be recorded in writing, grant such exemption.]
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1. Subs. by Act 6 of 2004, sec. 5, for sub-section (1) (w.e.f. 3-12-2004). (See Annexe 1)
2. Subs. by the Citizenship (Amendment) Act, 2005, sec. 3, for “two years”, (w.r.e.f. 28-6-2005).
3. Ins. by Act 6 of 2004, sec. 5 (w.e.f, 3-12-2004).
Section 6. Citizenship by naturalisation.
(l) Where an application is made in the prescribed manner by any person of full age and capacity 1[not being an illegal migrant] for the grant of a certificate of naturalisation to him, the Central Government may, if satisfied that the applicant is qualified for naturalisation under the provisions of the Third Schedule, grant to him a certificate of naturalisation:
Provided that, if in the opinion of the Central Government, the applicant is a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it may
waive all or any of the conditions specified in the Third Schedule.
(2) The person to whom a certificate of naturalisation is granted under subsection (1) shall, on taking the oath of allegiance in the form specified in the Second Schedule, be a citizen of India by naturalisation as from the date on which that certificate is granted.
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1. Subs. by Act 6 of 2004, sec. 6, for “who is not a citizen of a country specified in the First Schedule (w.e.f, 3-12-2004).
Section 6 A. Special provisions as to citizenship of persons covered by the Assam Accord.
1[Special provisions as to citizenship of persons covered by the Assam Accord. (1) For the purposes of this section-
(a) “Assam” means the territories included in the State of Assam immediately before the commencement of the Citizenship (Amendment) Act, 1985;
(b) “detected to be a foreigner” means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946 (31 of 1946) and the Foreigners (Tribunals) Order, 1964 by a Tribunal constituted under the said Order;
(c) “specified territory” means the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985;
(d) a person shall be deemed to be of Indian origin, if he, or either of his parents for any of his grandparents was born in undivided India;
(e) a person shall be deemed to have been detected to be a foreigner on the date on which a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opinion to the effect that he is a foreigner to the officer or authority concerned.
(2) Subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before the Ist day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the Ist day of January, 1966.
(3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who-
(a) came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and
(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and
(c) has been detected to be a foreigner,
shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (thereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom.
Explanation.-In the case of every person seeking registration under this subsection, the opinion of the Tribunal constituted under the Foreigners (Tribunals Order, 1964 holding such person to be a foreigner, shall be deemed to b sufficient proof of the requirement under clause (c) of this sub-section and if an question arises as to whether such person complies with any other requiremen under this sub-section, the registering authority shall,-
(i) if such opinion contains a finding with respect to such other requirement, decide the question in conformity with such finding;
(ii) if such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal constituted under the said Order hang jurisdiction in accordance with such rules as the Central Government may make in this behalf under section 18 and decide the question in conformity with the opinion received on such reference.
(4) A person registered under sub-section (3) shall have, as from the date on which he has been detected to be a foreigner and till the expiry of a period of ten years from that date, the same rights and obligations as a citizen of India (including the right to obtain a passport under the Passports Act, 1967 (15 of 1967) and the obligations connected therewith), but shall not be entitled to have his name included in any electoral roll for any Assembly or Parliamentary constituency at any time before the expiry of the said period of ten years.
(5) A person registered under sub-section (3) shall be deemed to be a citizen of India for all purposes as from the date of expiry of a period of ten years from the date on which he has been detected to be a foreigner.
(6) Without prejudice to the provisions of section 8,-
(a) if any person referred to in sub-section (2) submits in the prescribed manner and form and to the prescribed authority within sixty days from the date of commencement of the Citizenship (Amendment) Act, 1985, for year a declaration that he does not wish to be a citizen of India, such person shall not be deemed to have become a citizen of India under that sub-section;
(b) If any person referred to in sub-section (3) submits in the prescribed manner and form and to the prescribed authority within sixty days from the date of commencement the Citizenship (Amendment) Act, 1985, for year or from the date on which he has been detected to be a foreigner, whichever is later, a declaration that he does not wish to be governed by the provisions of that sub-section and sub-sections (4) and (5), it shall not be necessary for such person to register himself under sub-section (3).
Explanation.- Where a person required to file a declaration under this subsection does not have the capacity to enter into a contract, such declaration may be filed on his behalf by any person competent under the law for the time being in force to act on his behalf.
(7) Nothing in sub-sections (2) to (6) shall apply in relation to any person -
(a) who, immediately before the commencement of the Citizenship (Amendment) Act, 1985, for year is a citizen of India;
(b) who was expelled from India before the commencement of the Citizenship (Amendment) Act, 1985, for year under the Foreigners Act, 1946 (31 of 1946).
(8) Save as otherwise expressly provided in this section, the provisions of this section shall have effect notwithstanding anything contained in any other law for the time being in force.]
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1. Ins. by Act 65 of 1985, sec. 2 (w.e.f. 7-12-1985).
Section 7. Citizenship by incorporation of territory.
If any territory becomes a part of India, the Central Government may, by order notified in the Official Gazette, specify the persons who shall be citizens of India by reason of their connection with that territory; and those persons shall be citizens of India as from the date to be specified in the order.
Overseas Citizenship
Section 7 A. Registration of overseas citizens of India.
1[Overseas Citizenship]
2[Registration of overseas citizens of India. (1) The Central Government may, subject to such conditions and restrictions as may be prescribed, on an application made in this behalf, register any person as an overseas citizen of India-
(a) any person of full age and capacity,-
(i) who is citizen of another country, but was a citizen of India at the time of, or at any time after, the commencement of the Constitution; or
(ii) who is citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the Constitution; or
(iii) who is citizen of another country, but belonged to a territory that became part of India after the 15th day of August, 1947; or
(iv) who is a child or a grand-child of such a citizen; or
(b) a person, who is a minor child of a person mentioned in clause (a): Provided that no person, who is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify, shall be eligible for registration as an overseas citizen of India.]
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1. Ins. by Act 6 of 2004, sec. 7 (w.e.f. 3-12-2004).
2. Subs. by the Citizenship (Amendment) Act, 2005, sec. 4 (w.r.e.f, 28-6-2005), for section “7A. Registration of overseas citizens.-(l) The Central Government may, subject to such conditions and restrictions including the condition of reciprocity as may be prescribed, on an application made in this behalf, register any person as an overseas citizen of India if-
(a) that person is of Indian origin of full age and capacity who is a citizen of a specified country; or
(b) that person is of full age and capacity who has obtained the citizenship of a specified country on or after the commencement of the Citizenship (Amendment) Act, 2003 and who was a citizen of India immediately before such commencement; or
(c) that person is a minor of a person mentioned in clause (a) or clause (b).
(2) The person registered as an overseas citizen of India under sub-section (1) shall be an overseas citizen of India as from the date on which he is so registered.
(3) No person who has been deprived of his Indian citizenship under this Act shall be registered as an overseas citizen of India under sub-section (1) except by an order of the Central Government.
Explanation.-For the purposes of this section and sections 7B, 7C and 7D, the expression “person of Indian origin” shall mean a citizen of another country who-
(i) was eligible to become a citizen of India at the time of the commencement of the Constitution;
(ii) belonged to a territory that became part of India after the 15th day of August, 1947; and
(iii) the children and grand-children of a person covered under clauses (i) and (ii); but does not include a person who is or had been at any time a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify.”
Section 7 B. Conferment of rights on overseas citizens of India.
1[Conferment of rights on overseas citizens of India.
(1) Notwithstanding anything contained in any other law for the time being in force, an overseas citizen of India shall be entitled to such rights [other than the rights specified under sub-section (2)] as the Central Government may, by notification in the Official Gazette, specify in this behalf.
(2) An overseas citizen of India shall not be entitled to the rights conferred on a citizen of India-
(a) under article 16 of the Constitution with regard to equality of opportunity in matters of public employment;
(b) under article 58 of the Constitution for election as President:
(c) under article 66 of the Constitution for election of Vice-President;
(d) under article 124 of the Constitution for appointment as a Judge of the Supreme Court:
(e) under article 217 of the Constitution for appointment as a Judge of the High Court;
(f) under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to registration as a voter;
(g) under sections 3 and 4 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the House of the People or of the Council of States, as the case may be;
(h) under sections 5, 5A and 6 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the Legislative Assembly or a Legislative Council, as the case may be, of a State;
(i) for appointment to public services and posts in connection with the affairs of the Union or of any State except for appointment in such services and posts as the Central Government may by special order in that behalf specify.
(3) Every notification issued under sub-section (1) shall be laid before each House of Parliament.]
——————-
1. Ins. by Act 6 of 2004, sec. 7 (w.e.f. 3-12-2004).
Section 7 C. Renunciation of overseas citizenship.
1[Renunciation of overseas citizenship. (1) If any overseas citizen of India of full age and capacity makes in the prescribed manner a declaration renouncing his overseas citizenship of India, the declaration shall be registered by the Central Government, and; upon such registration, that person shall cease to be an overseas citizen of India.
(2) Where a person ceases to be an overseas citizen of India under sub-section (1), every minor child of that person registered as an overseas citizen of India, shall thereupon cease to be an overseas citizen of India.]
——————-
1. Ins. by Act 6 of 2004, sec. 7 (w.e.f. 3-12-2004).
Section 7 D. Cancellation of registration as overseas citizen of India.
1[Cancellation of registration as overseas citizen of India. The Central Government may, by order, cancel the registration granted under sub-section (1) of section 7A if it is satisfied that -
(a) the registration as an overseas citizen of India was obtained by means of fraud, false representation or the concealment of any material fact; or
(b) the overseas citizen of India has shown disaffection towards the Constitution of India as by law established; or
(c) the overseas citizen of India has, during any war in which India may be engaged, unlawfully traded or communicated with an enemy or been engaged in.: or associated with, any business or commercial activity that was to his knowledge carried on in such manner as to assist an enemy in that war; or
(d) the overseas citizen of India has, within five years after registration under sub-section (1) of section 7A has been sentenced to imprisonment for a term of not less than two years; or
(e) it is necessary so to do in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.]
——————–
1. Ins. by Act 6 of 2004, sec. 7 (w.e.f. 3-12-2004).
Termination of Citizenship
Section 8. Renunciation of citizenship.
(1) If any citizen of India of full age and capacity, 1[***] makes in the prescribed manner a declaration renouncing his Indian Citizenship, the declaration shall be registered by the prescribed authority; and, upon such registration, that person shall cease to be a citizen of India:
Provided that if any such declaration is made during any war in which India may be engaged, registration thereof shall be withheld until the Central Government otherwise directs.
(2) Where 2[a person] ceases to be a citizen of India under sub-section (1)
every minor child of that person shall thereupon cease to be a citizen of India:
Provided that any such child may, within one year after attaining full age, make a declaration 3[in the prescribed form and manner] that he wishes to
resume Indian citizenship and shall thereupon again become a citizen of India.
——————–
1. The words “who is also a citizen or national of another country”, omitted by Act 6 of 2004, sec. 8 (w.e.f. 3-12-2004).
2. Subs. by Act 39 of 1992, sec. 3, for “a male person” (w.e.f. 10-12-1992).
3. Ins. by Act 6 of 2004, sec. 8 (w.e.f. 3-12-2004).
4. Sub-section (3) omitted by Act 6 of 2004, sec. 8 (w.e.f. 3-12-2004). (See Annexe 1)
Section 9. Termination of citizenship.
(1) Any citizen of India who by naturalisation, registration otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India:
Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires, the citizenship of another country, until the Central Government otherwise directs.
(2) If any question arises as to whether, when or how any 1[citizen of India] has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.
——————-
1. Subs. by Act 6 of 2004, sec. 9, for “person” (w.e.f. 3-12-2004).
Section 10. Deprivation of citizenship.
(1) A citizen of India who is such by riaturalisation or by virtue only of clause (c) of article 5 of the Constitution or by registration otherwise than under clause (b) (ii) of arlicle 6 of the Constitution or clause (a) of sub-section (1) of section 5 of this Act, shall cease to be a citizen of India, if he is deprived of that citizenship by an order of the Central Government under this section.
(2) SUbject to the provisions of this section, the Central Government may, by order, deprive any such citizen of Indian citizenship, if it is satisfied that-
(a) the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact; or
(b) that citizen has shown himself by act or speech to be disloyal or disaffected towards the Constitution of India as by law established; or
(c) that citizen has, during any war in which India may be engaged unlawfully traded or communicated with an enemy or been engaged in, or associated with, any business that was to his knowledge carried on in such manner as to assist an enemy in that war; or
(d) that citizen has, within five years after registration or naturalisation, been sentenced in any country to imprisonment for a term of not less than two years; or
(e) that citizen has been ordinarily resident out of India for a continuous period of seven years, and during that period, has neither been at any time a student of any educational institution in a country outside India or in the service of a Government in India or of an international organisation of which India is a member, nor registered annually in the prescribed manner at an Indian consulate his intention to retain his citizenship of India.
(3) The Central Government shall not deprive a person of citizenship under
this section unless it is satisfied that it is not conducive to the public good that the person should continue to be a citizen of India.
(4) Before making an order under this section, the Central Government shall give the person against whom the order is proposed to be made notice in writing informing him of the ground on which it is proposed to be made and, if the order is proposed to be made on any of the grounds specified in sub-section (2) other than clause (e) thereof, of his right, upon making application therefor in the prescribed manner, to have his case referred to a committee of inquiry under this section.
(5) If the order is proposed to be made against a person on any of the grounds specified in sub-section (2) other than clause (e) thereof and that person so applies in the prescribed manner, the Central Government shall, and in any other case it may, refer the case to a Committee of Inquiry consisting of a chairman (being a person who has for at least ten years held a judicial office) and two other members appointed by the Central Government in this behalf.
(6) The Committee of Inquiry shall, on such reference, hold the inquiry in such manner as may be prescribed and submit its report to the Central Government; and the Central Government shall ordinarily be guided by such report in making an order under this section.
Supplemental
Section 11. Commonwealth citizenship.
[Rep. by the Citizenship (Amendment) Act, 2003 (6 of 2004), sec. 10.]
Section 12. Power to confer rights of Indian citizen or citizens of certain countries.
[Rep. by the Citizenship (Amendment) Act, 2003 (6 of 2004), sec. 10.]
Section 13. Certificate of Citizenship in case of doubt.
The Central Government may, in such cases as it thinks fit, certify that a person, with respect to whose citizenship of India a doubt exists, is a citizen of India; and a certificate issued under this section shall, unless it is proved that it was obtained by means of fraud, false representation or concealment of any material fact, be conclusive evidence that person was such a citizen on the date thereof, but without prejudice to any evidence that he was such a citizen at an earlier date.
Section 14. Disposal of application under [sections 5, 6 and 7A].
Disposal of application under 1[sections 5, 6 and 7A]. (1) The prescribed authority or the Central Government may, in its discretion, grant or refuse an application under 2[section 5,6 or section 7A] and shall not be required to assign any reasons for such grant or refusal.
(2) Subject to the provisions of section 15 the decision of the prescribed authority or the Central Government on any such application as aforesaid shall be final and shall not be called in question in any court.
——————–
1. Subs. by Act 6 of 2004, sec. 11, for “sections 5 and 6″ (w.e.f, 3-12-2004).
2. Subs. by Act 6 of 2004, sec. 11, for “section 5 or section 6″ (w.e.f, 3-12-2004). Ed. section 11 of the Act 6 of 2004, states that for the words and figures “sections 5 and 6″, the words, figures and letter “sections 5, 6 and 7A” shall be substituted. The words “sections 5 and 6″ appear in the heading and not in the body, but in the body the text has been changed according to its construction.
Section 14 A. Issue of national identity cards.
1[Issue of national identity cards. (1) The Central Government may compulsorily register every citizen of India and issue national identity card to him.
(2) The Central Government may maintain a National Register of Indian Citizens and for that purpose establish a National Registration Authority.
(3) On and from the date of commencement of the Citizenship (Amendment) Act, 2003, the Registrar General, India, appointed under sub-section (1) of section 3 of the Registration of Births and Deaths Act, 1969 (18 of 1969) shall act as the National Registration Authority and he shall function as the Registrar General of Citizen Registration.
(4) The Central Government may appoint such other officers and staff as may be required to assist the Registrar General of Citizen Registration in discharging his functions and responsibilities.
(5) The procedure to be followed in compulsory registration of the citizens of India shall be such as may be prescribed.]
——————–
1. Ins. by Act 6 of 2004, sec. 12 (w.e.f. 3-12-2004).
Section 15. Revision.
(1) Any person aggrieved by an order made under this Act by the prescribed authority or any officer or other authority (other than the Central Government) may, within a period of thirty days from the date of the order, make an application to the Central Government for revision of that order:
Provided that the Central Government may entertain the application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.
(2) On receipt of any such application under sub-section (I), the Central Government shall, after considering the application of the aggrieved person and any report thereon which the officer or authority making the order may submit, make such order in relation to the application as it deems fit, and the decision of the Central Government shall be final.
Section 15 A. Review.
1[Review. (1) Any person aggrieved by an order made by the Central Government, may within thirty days from the date of such order, make an application for review of such order:
Provided that the Central Government may entertain application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time:
Provided further that an application for a review of an order passed in terms of the provisions of section 14A shall be disposed of in the manner provided for in the procedure as may be laid down under clause (ia) of sub-section (2) of section 18.
(2) On receipt of an application under sub-section (I), the Central Government shall, make such order as it deems fit, and the decision of the
Central Government on such review shall be final.]
——————–
1. Ins. by Act 6 of 2004, sec. 13 (w.e.f. 3-12-2004).
Section 16. Delegation of power.
The Central Government may, by order, direct that any power which is conferred on it by any of the provisions of this Act other than those of section 10 and section 18 shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercisable also by
such officer or authority as may be so specified.
Section 17. Offences.
Any person who, for the purpose of procuring anything to be done or not to be done under this Act, knowingly makes any representation which is false in a material particular shall be punishable with imprisonment for a term which may extend to 1[five years], or 2[with fine which may extend to fifty thousand rupees], or with both.
——————–
1. Subs. by Act 6 of 2004, sec. 14, for “six months” (w.e.f. 3-12-2004).
2. Subs. by Act 6 of 2004, sec. 14, for “with fine” (w.e.f. 3-12-2004).
Section 18. Power to make rules.
(1) The Central Government may, by notification in the Official Gazette make rules to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for-
(a) the registration of anything required or authorized under this Act to be registered, and the conditions and restrictions in regard to such registra tion;
1[(aa) the form and manner in which a declaration under sub-section (1) of
section 4 shall be made;]
(b) the forms to be used and the registers to be maintained under this Act;
(c) the administration and taking of oaths of allegiance under this Act and the time within which, and the manner in which, such oaths shall be taken and recorded;
(d) the giving of any notice required or authorized to be given by any person under this Act;
(e) the cancellation of the registration of, and the cancellation and amendment of certificate of naturalisation relating to, persons deprived of citizenship under this Act, and the delivering up of such certificates for those purposes;
2[(ee) the manner and form in which and the authority to whom declarations referred to in clauses (a) and (b) of sub-section (b) of section 6A shall be submitted and other matters connected with such declarations;]
(f) the registration at Indian consulates of the births and deaths of persons of any class or description born or dying outside India;
(g) the levy and collection of fees in respect of applications, registrations, declarations and certificates under this Act, in respect of the taking of an oath of allegiance, and in respect of the supply of certified or other copies of documents;
(h) the authority to determine the question of acquisition of citizenship of another country, the procedure to be followed by such authority and rules of evidence relating to such cases;
(i) the procedure to be followed by the committees of inquiry appointed under section 10 and the conferment on “such committees of any of the powers, rights and privileges of civil court;
3[(ia) the procedure to be followed in compulsory registration of the citizens of India under sub-section (5) of section 14A;]
(j) the manner in which applications for revision may be made and the procedure to be followed by the Central Government in dealing with such applications; and
(k) any other matter which is to be, or may be, prescribed under this Act.
(3) In making any rule under this section, the Central Government may provide that breach thereof shall be punishable with fine which may extend to one thousand rupees:
4[Provided that any rule made in respect of a matter specified in clause (ia) of sub-section (2) may provide that a breach thereof shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five thousand rupees, or with both.]
5[(4) Every rule made under this section shall be laid, as soon as may be after it is made before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]
——————–
1. Ins. by Act 6 of 2004, sec. 15 (w.e.f. 3-12-2004).
2. Ins. by Act 65 of 1985, sec. 3 (w.e.f. 7-12-1985).
3. Ins. by Act 65 of 1985, sec. 3 (w.e.f. 7-12-1985).
4. Ins. by Act 6 of 2004, sec. 15 (w.e.f. 3-12-2004).
5. Subs. by Act 4 of 1986, sec. 2 and Sch. (w.e.f. 15-5-1986).
Section 19. Repeals.
[Repealed by the Repealing and Amending Act, 1960 (Act 58 of 1960), sec. 2 and the First Schedule (w.ef 26-10-1960).]
Schedule
Schedule 1
Refer to Section 19.
Schedule 2
1[***]
2[THE SECOND SCHEDULE
[See sections 5(2) and 6(2))
OATH OF ALLEGIANCE
I, A/B ………………..do solemnly affirm (or swear) that I will bear true faith and allegiance to the Constitution of India as by law established, and that I will faithfully observe the laws of India and fulfil my duties as a citizen of India.)
——————–
1. The First Schedule omitted by Act 6 of 2004, sec. 16 (w.e.f. 3-12-2004). (See Annexe)
2. Subs. by Act 6 of 2004, sec. 17, for the Second Schedule (w.e.f. 3-12-2004). (See Annexe)
Schedule 3
THE THIRD SCHEDULE
[See section 6 (1)]
QUALIFICATIONS FOR NATURALISATION
The qualifications for naturalisation of a person 1[***] are-
(a) that he is not a subject or citizen of any country where citizens of India are prevented by law or practice of that country from becoming subjects or citizens of that country by naturalisation;
(b) that, if he is a citizen of any country, 2[he undertakes to renounce the citizenship of that country in the event of his application for Indian citizenship being accepted];
(c) that he has either resided in India or been in the service of a Government in India or partly the one and partly the other, throughout the period of twelve months immediately preceding the date of the application;
(d) that during the 3[fourteen years] immediately preceding the said period of twelve months, he has either resided in India or been in the service of a Government in India, or partly the one and partly the other, for periods amounting in the aggregate to not less than 4[eleven years];
(e) that he is of good character;
(f) that he has an adequate knowledge of a language specified in the Eighth Schedule to the Constitution; and
(g) that in the event of a certificate of naturalisation being granted to him, he intends to reside in India, or to enter into or continue in, service under a Government in India or under an international organisation of which India is
a member or under a society, company or body of persons established in India: Provided that the Central Government may, if in the special circumstances of any particular case it thinks fit,-
(i) allow a continuous period of twelve months ending not more than six months before the date of the application to be reckoned, for the pmposes of clause (c) above, as if it had immediately preceded that date;
(ii) allow periods of residence or service earlier than 5[fifteen years] before the date of the application to be reckoned in computing the aggregate mentioned in clause (d) above.
——————–
1. The words “who is not a citizen of a country specified in the First Schedule” omitted by Act 6 of 2004, sec. 18 (w.e.f. 3-12-2004).
2. Subs. by Act 6 of 2004, sec. 18, for “he has renounced the citizenship of that country in accordance with the law therein in force in that behalf and has notified such renunciation to the Central Government” (w.e.f. 3-12-2004).
3. Subs. by Act 6 of 2004, sec. 18, for “twelve years” (w.e.f. 3-12-2004).
4. Subs. by Act 6 of 2004, sec. 18, for “nine years” (w.e.f. 3-12-2004)
5. Subs. by Act 6 of 2004, sec. 18, for “thirteen years” (w.e.f. 3-12-2004).
1[***]
——————-
1. Ins. by Act 6 of 2004, sec. 19 (w.e.f. 3-12-2004) and omitted by he Citizenship (Amendment) Act, 2005 sec. 5 (w.e.f. 28-6-2005).
Prior to ommission it stood as: “THE FOURTH SCHEDULE
[See section 2(1)(gg)]
1. Australia
2. Canada
3. Finland
4. France
5. Greece
6. Ireland
7. Israel
8. Italy
9. Netherlands
10. New Zealand
11. Portugal
12. Republic of Cyprus
13. Sweden
14. Switzerland
15. United Kingdom
16. United States of America.”
November 30, 2014
Section 1. Short title.
(1) This Act may be called the General Clauses Act, 1897;
1[***]
2[***]
———-
1. The word “and” rep. by Act 10 of 1914, sec. 3 and Sch. II.
2. Sub-section (2) rep. by Act 1 of 1914, sec. 3 and Sch. II.
Section 2. Repeal.
(Repealed by the Repealing and Amending Act, 1903 (1 of 1903), Sec. 4 and Schedule III)
Section 3. Definitions.
1 Definitions.-
1. Subs. by the A.O. 1950, for section 3.
In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context,-
1. “Abet”, with its grammatical variations and cognate expressions, shall have the same meaning as in the Indian Penal Code (45 of 1860).
2. “Act”, used with reference to an offence or a civil wrong, shall include a series of acts, and words which refer to acts done extend also to illegal omissions,
3. “affidavit” shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing,
4. “barrister” shall mean a barrister of England or Ireland, or a member of the Faculty of Advocates in Scotland,
5. “British India” shall mean, as respects the period before the commencement of Part III of Government of India Act, 193, all territories and places within His Majesty’s dominions which were for the time being governed by His Majesty through the Governor General of India or through any Governor or Officer subordinate to the Governor General of India, and as respects any period after that date and before the date of establishment of the Dominion of India means all territories for the time being except that a reference to British India in an Indian law passed or made before the commencement of Part III of the Government of India Act, 1935, shall not include a reference to Bearer.
6. “British possession” shall mean any part of Her Majesty’s dominions exclusive of the United Kingdom , and where parts of those dominions are under both a Central and a Local Legislature, all parts under the Central Legislature shall, for the purposes of this definition, be deemed to be one British possession.
7. “Central Act” shall means an Act of Parliament, and shall include- An Act of the Dominion Legislature or of the Indian Legislature passed before the commencement of the Constitution,
and Act made before such commencement by the Governor General in Council or the Governor General, acting in a legislature capacity.
1[(8) “Central Government” shall,—
(a) in relation to anything done before the commencement of the Constitution, mean the Governor General or the Governor General in Council, as the case may be; and shall include,—
(i) in relation to functions entrusted under sub-section (1) of section 124 of the Government of India Act, 1935, to the Government of a Province, the Provincial Government acting within the scope of the authority given to it under that subsection; and
(ii) in relation to the administration of a Chief Commissioner’s Province, the Chief Commissioner acting within the scope of the authority given to him under sub-section (3) of section 94 of the said Act; and
(b) in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include,—
(i) in relation to functions entrusted under clause (1) of article 258 of the Constitution, to the Government of a State, the State Government acting within the scope of the authority given to
________________
* 26th January, 1950.
1. Subs. by Adaptation of Laws (Amendent) Order, 1950
____________
it under that clause; 1[***]
(ii) in relation to the administration of a Part C State 2[before the commencement of the Constitution (Seventh Amendment) Act, 1956†], the Chief Commissioner or the Lieutenant- Governor or the Government of a neighbouring State or other authority acting within the scope of the authority given to him or it under article 239 or article 243 of the Constitution, as the case may be;] 2[and]
3[(iii) in relation to the administration of a Union territory, the administrator thereof acting within the scope of the authority given to him under article 239 of the Constitution;]
9. “Chapter” shall mean a chapter of the Act or Regulation in which the word occurs,
10. “Chief Controlling Revenue Authority” or “Chief Revenue Authority” shall mean—
(a) in a State where there is a Board of Revenue, that Board;
(b) in a State where there is a Revenue Commissioner, that Commissioner;
(c) in Punjab, the Financial Commissioner; and
(d) elsewhere, such authority as, in relation to matters enumerated in List I in the Seventh Schedule to the Constitution, the Central Government, and in relation to other matters, the State Government, may by notification in the Official Gazette, appoint;
11. “Collector” shall mean, in a Presidency-town, the Collector of Calcutta, Madras or Bombay, as the case may be, and elsewhere the chief officer-incharge of the revenue administration of a district.
12. “Colony”-
(a) in any Central Act passed after the commencement of Part III of the Government of India Act, 1935*, shall mean any part of His Majesty’s dominions exclusive of the British Islands, the Dominions of India and Pakistan (and before the establishment of those Dominions††, British India), any Dominions as defined in the Statute of Westminster, 1931, any Province or State forming part of any of the said Dominions, and British Burma; and
(b) in any Central Act passed before the commencement of Part III of the said Act, mean any part of His Majesty’s dominions exclusive of the British Islands and of British India, and in either case where parts of those dominions are under both a Central and
1. The word “and” omitted by the Adaptation of Laws (No. 1) Order, 1956.
2. Ins. by the Adaptation of Laws (No. 1) Order, 1956.
† 1st January, 1956
3. Ins. by the Adaptation of Laws (No. 1) Order, 1956.
* 1st April, 1937.
†† 15th August, 1947.
Local Legislature, all parts under the Central Legislature shall, for the purposes of this definition, be deemed to be one colony.
STATE AMENDMENT
Assam: In clause (14) after the words “a division”, insert the following words, namely:— “and shall include the Assam Revenue Tribunal while exercising jurisdiction heretofore exercised by a commissioner in appeals and revisions in Revenue cases.”
[Assam Act 1 of 1939, sec. 5 and Sch. B as amended by Assam Act 4 of 1940.]
15. “Constitution” shall mean the Constitution of India
16. “Consular Officer” shall include consul-general, consul, vice-consul, consular agent, pro- consul and any person for the time being authorised to perform the duties of consul-general, consul, vice-consul or consular agent.
17. “District Judge” shall mean the Judge of a principal Civil Court of original jurisdiction. But shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction.
18. “Document” shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose or recording that matter.
19. “Enactment” shall include a Regulation (as hereinafter defined) and any Regulation of the Bengal, Madras or Bombay Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid.
STATE AMENDMENTS
Andhra Pradesh: In clause (19), after the words “any Regulation of the Bengal, Madras or Bombay Code”, insert the words “and any Regulation of the Madras Code in force in the State of Andhra as it existed immediately before the 1st November, 1956”.
[Andhra Pradesh A.L.O., 1954 and Andhra Pradesh A.L.O., 1957.]
Tamil Nadu: In clause (19) as amended by Andhra Pradesh A.L.O. 1954 and Andhra Pradesh A.L.O. 1957, for the words “State of Andhra Pradesh as it existed immediately before the 1st November, 1956”, substitute the words “territories specified in the Second Schedule to the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959 (Central Act 56 of 1959)”.
[Tamil Nadu (Added Territories) A.L.O., 1961.]
20. “Father” in the case of any one whose personal permits adoption, shall include an adoptive father.
21. “Financial year” shall mean the year commencing on the first day of April.
22. A thing shall be deemed to be done in “good faith” where it is in fact done honesty, whether it is done negligently or not.
23. “Government” or “the Government” shall include both the Central Government and any State Government.
24. “Government securities” shall mean securities of he Central Government or of any State Government, but in any Act or Regulation made before the commencement of the Constitution shall not include securities of the Government of any Part B State.
25. “High Court”, used with reference to civil proceedings, shall mean the highest Civil Court or appeal (not including the Supreme Court) in the part of India in which the Act or Regulation containing the expression operates.
26. “Immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.
27. “Imprisonment” shall mean imprisonment of either description as defined in the Indian Penal Code,
28. “India” shall mean- As respects any period before the establishment of the Dominion of India, British India together with all territories of Indian Rulers then under the suzerainty of His Majesty, all territories under the suzerainty of such an Indian Ruler, and the tribal areas.
As respects any period after the establishment of the Dominion of India and before the commencement of the Constitution, all territories for the time being included in that Dominion, and
As respect any period after the commencement of the Constitution, all territories for the time being comprised in the territory of India.
29. “Indian law” shall mean any Act, Ordinance, Regulation, rule, (order, bye-law or other instrument which before the commencement of the Constitution had the force of law in any Province of India or part thereof, or thereafter has the force of law in any Part A State or Part C State or Part thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council, rule or other instrument made under such Act.
____________
* 15th August, 1947.
† 26th January, 1950.
1. Subs. by the Adaptation of Laws (Amendment) Order, 1950, for “order or bye-law”.
30. “Indian State” shall mean any territory which the Central Government recognized as such a State before the commencement of the Constitution, whether described as a State, an Estate, a Jagir or otherwise.
31. “Local authority” shall mean a municipal committee, district board, body of port commissioners or other authority legally entitled to , or entrusted by the Government with, the control or management of a municipal or local fund.
32. “Magistrate” shall include every person exercising all or any of the powers of a Magistrate under the code of Criminal Procedure for the time being in force.
33. “Master’, used with reference to a ship, shall mean, any person (except a pilot or harbour-master) having for the time being control or charge of the ship.
34. “Merged territories” shall mean the territories which by virtue of an order made under section 290A of the Government of India Act, 1935, were immediately before the commencement of the Constitution being
administered as if they formed part of a Governor’s Province or as if they were a Chief Commissioner’s Province.
35. “Month” shall mean a month reckoned according to the British calendar.
36. “Movable property” shall mean property of every description, except immovable property.
37. “Oath” shall mean property of every description, except immovable property.
38. “Offence” shall mean any act or omission made punishable by any law for the time being in force,
39. “official Gazette” or “Gazette” shall mean the Gazette of India or the official Gazette of a State.
40 “Part” shall mean a part of the Act or Regulation in which the word occurs,
41. “Part A State” shall mean a State for the time being specified in Part A of the First Schedule to the Constitution, (as in force before the Constitution (Seventh Amendment ) Act, 1956, ( Part B State” shall mean a State for the time being specified in Part B of that Schedule and “Part C State” shall mean a State for the time being specified in Part C that Schedule or a territory for the time being administered by the President under the provision s of article 243 of the Constitution.
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† 26th January, 1950.
1. Subs. by the Adaptation of Laws (No. 1) Order, 1956, for “a Part A State or a Part C State”.
2. Subs. by the Adaptation of Laws (No. 1) Order, 1956, for “under article 243 of the Constitution, and shall include”.
_________________
52. “Schedule” shall mean a schedule to the Act or Regulation in which the word occurs.
53. “Scheduled District” shall mean a “Scheduled District” as defined in the Schedule District Act, 1874.
54. “Section” shall mean a section of the Act or Regulation in which the word occurs.
55. “Ship” shall include every description of vessel used in navigation not exclusively propelled by oars.
56. “Sign” with its grammatical variations and cognate expressions, shall, with reference to a person who is unable to write his name, include, “mark”, with its grammatical variation and cognate expressions,
57. “son”, in the case of any one whose personal law permits adoption, shall include an adopted son.
58. “State”- As respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State, and as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory.
59. “State Act” shall mean an Act passed by the Legislature of a State established or continued by the Constitution,
60. “State Government”,- As respects anything done before the commencement of the Constitution, shall mean, in Part A State, the Provincial Government of the corresponding Province, in Part B State, the authority or person authorised at the relevant date to exercise executive government in the corresponding Acceding State, and in a Part C State, the Central Government.
As respects anything done (after the commencement of the Constitution and before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a Part A state, the Governor, in a Part B State, the Rajpramukh, and in a Part C State, the Central Government.
As respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 195, shall mean, in a State, the Governor, and in a Union territory, the Central Government.
And shall, in relation to functions entrusted under article 258A of the Constitution to the Government of India, include the Central Government acting within the scope of the authority given to it under that article.
_________________
1. Subs. by the Adaptation of Laws (No. 1) Order, 1956, for clause (58).
* 1st January, 1956.
† 26th January, 1950.
2. The word “and” omitted by the Adaptation of Laws (No. 1) Order, 1956.
3. Subs. by the Adaptation of Laws (No. 1) Order, 1956, for “or to be done after the commencement of the Constitution”.
____________
61. “Sub-section” shall mean a sub-section of the section in which the word occurs
62. “swear” with its grammatical variations and cognate expressions, shall include affirming and declaring in the case of persons by law allowed to affirm or declare instead of swearing.
62A “Union territory” shall mean any Union territory specified in the First Schedule to the Constitution and shall include any other territory comprised within the territory of Indian but not specified in that Schedule.
63. “Vessel” shall include any ship or boat or any other description of vessel used in navigation.
64. “Will” shall include a codicil and every writing making a voluntary posthumous disposition of property.
65. Expressions referring to “writing” shall be construed as including references to printing, lithography, photography and other modes of representing or reproducing words in a visible form, and
66. “year” shall mean a year reckoned according to the British calendar.
1. Ins. by the Adaptation of Laws (No. 1) Order, 1956.
* 1st November, 1956.
Section 4. Application of foregoing definition to previous enactments.
(1) The definitions in section 3 of the following words and expressions, that is to say, “affidavit”, “barrister”, 1[***] “District Judge”, “father”, 1[***], 2[***], 1[***] “immovable property”, “imprisonment”, 1[***] “Magistrate”, “month”, “movable property”, “oath”, “person”, “section”, “son”, “swear”, “will”, and “year” apply also, unless there is anything repugnant in the subject or context, to all 3[Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.
(2) The definitions in the said section of the following words and expressions, that is to say, “abet”, “Chapter”, “commencement”, “financial year”, “local authority”, ‘‘master”, “offence”, “part”, “public nuisance”, “registered”, “schedule”, “ship”, “sign”, “sub-section” and “writing” apply also, unless there is anything repugnant in the subject or context, to all 3[Central Acts] and Regulations made on or after the fourteenth day of January, 1887.
————
1. The words “ British India ”, “Government of India”, “High Court”, and “Local Government” rep. by the A.O. 1937.
2.The words “Her Majesty” or “the Queen” rep. by Act 18 of 1919, sec. 3 and Sch.II.
3.Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
Section 4 A. Application of certain definitions to Indian Laws.-
1[4A. Application of certain definitions to Indian Laws. —(1) The definitions in section 3 of the expressions ‘British India”, “Central Act”, “Central Government”, “Chief Controlling Revenue Authority”, “Chief Revenue Authority”, “Constitution”, “Gazette”, “Government”, “Government securities”, High Court”, “India”, “Indian law”, “Indian law” “Indian State”, “merged territories”, “Official Gazette”, “Part A State”, ‘Part B State”, “Provincial Government”, “State” and “State Government” shall apply, unless there is anything repugnant in the subject or context, to all Indian laws.
In any Indian law, references, by whatever form of words, to revenues of the Central Government or to any State Government shall, on and from the first day of April, 1950, be construed as references to the Consolidated Fund of India or the Consolidated Fund of the State, as the case may be.
————
1. Subs. by the A.O. 1950, for section 4A. Earlier section 4A was inserted by the A.O. 1937.
Section 5. Coming into operation of enactments.
1[(1) Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent,—
(a) in the case of a Central Act made before the commencement of the Constitution † , of the Governor-General, and
(b) in the case of an Act of Parliament, of the President.]
2[***]
(3) Unless the contrary is expressed, a 3[Central Act] or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement.
————
1. Subs. by the A.O. 1950, for sub-section (1).
† 26th January, 1950.
2. Sub-section (2) omitted by the A.O. 1950.
3. Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
Section 5 A. Coming into operation of Governor-General’ Act.-
1[5A. Coming into operation of Governor-General’s Act.—[Rep. by the A.O. 1947.]]
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1. Section 5A was earlier inserted by the A.O. 1937.
Section 6. Effect of repeal.
Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- Revive anything not in force or existing at the time at which the repeal takes effect, or Affect the previous operation of any enactment so repealed or anything duly done or suffered there under, or Affect any right, privilege, obligation or liability acquired, accrued or incurrent under any enactment so repealed, or Affect any penalty, forfeiture or unishment incurred in respect of any offence committed against any enactment so repealed, or
Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.
Section 6 A. Repeal of Act making textual amendment in Act or Regulation.
1[6A. Repeal of Act making textual amendment in Act or Regulation. —Where any 2[Central Act] or Regulation made after the commencement of this Act repeals any enactment by which the text of any 2[Central Act] or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.]
——–
1. Ins. by Act 19 of 1936, sec. 2.
2. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 7. Revival of repealed enactments.
(1) In any 1[Central Act] or Regulation made after the commencement of this Act, it shall be necessary, for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose.
(2) This section applies also to all 1[Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.
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1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 8. Construction of references to repealed enactments.
1[(1)] Where this Act, or any 2[Central Act] or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
3[(2) 4[Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted], with or without modification, any provision of a former enactment, then reference in any 2[Central Act] or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.]
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1. Section 8 renumbered as sub-section (1) of that section by Act 18 of 1919, sec. 2 and Sch. I.
2. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
3. Ins. by Act 18 of 1919, sec. 2 and Sch. I.
4. Subs. by the A.O. 1950, for “Where any Act of Parliament repeals and re-enacts”.
Section 9. Commencement and termination of time.
(1) In any 1[Central Act] or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word “from”, and, for the purpose of including the last in a series of days or any other period of time, to use the word “to”.
(2) This section applies also to all 2[Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.
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1. Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
Section 10. Computation of time.
(1) Where, by any 1(Central Act) or regulation made after the commencement of this Act, any act or proceeding is directed to allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open.
Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (15 of 1877)2 , applies.
(2) This section applies also to all 1[Central Acts] and Regulations made on or after the fourteenth day of January, 1887.
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1. Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
2. See now the Limitation Act, 1963 (36 of 1963).
Section 11. Measurement of distance.
In the measurement of any distance, for the purpose of any 1 (Central Act) or Regulation made after the commencement of this Act, that distance shall, unless a different intention appears, be measured in a straight line on a horizontal plane.
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1. Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
Section 12. Duty to be taken prorate in enactment.
Where, be any enactment now in force or hereafter to be in force, any duty of customs or exercise, or in the nature thereof, is leviable on any given quantity, by weight, measure or value of any goods or merchandise, then a like duty is leviable according to the same rate on any greater or less quantity.
Section 13. Gender and number.
In all 1(Central Acts) and Regulations, unless there is anything repugnant in the subject or context.- Words importing the masculine gender shall be taken to include females, and words in the singular shall include the plural, and vice versa.
———–
1. Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
Section13 A.
1[13A. References to the Sovereign. —[ Rep. by the A.O. 1950. ]]
———–
1. Section 13A was earlier inserted by Act 18 of 1928, sec. 2 and Sch. I.
Section 14. Powers conferred to be exercisable from time to time.
(1) Where, by any 1[Central Act] or Regulation made after the commencement of this Act, any power is conferred 2[***], then 3[unless a different intention appears] that power may be exercised from time to time as occasion requires.
(2) This section applies also to all 1[Central Acts] and Regulations made on or after the fourteenth day of January, 1887.
———–
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
2. The words “on the Government” omitted by Act 18 of 1919, sec. 2 and Sch. I.
3. Ins. by Act 18 of 1919, sec. 2 and Sch. I.
Section 15. Power to appoint to include power to appoint ex officio.
Where, by any 1(Central Act) or Regulation, a power to appoint any person to fill any office or execute any function is conferred, then, unless it is otherwise expressly provided, any such appointment, if it is made after the commencement of this Act, may be made either by name or by virtue of office.
———–
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 16. Power to appoint to include power to suspend or dismiss.
Where, by any 1[Central Act] or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having 2[for the time being] power to make the appointment shall also have power to suspend or dismiss any person appointed 3[whether by itself or any other authority] in exercise of that power.
———–
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
2. Ins. by Act 18 of 1928, sec. 2 and Sch. I.
3. Subs. by Act 18 of 1928, sec. 2 and Sch. I, for “by it”.
Section 17. Substitution of functionaries.
(1) In any (Central Act) or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the application of a law to every person or number of persons for the time being executing the function of an office, to mention the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed.
(2) This section applies also to all 1[Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.
———–
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 18. Successors.
(1) In any 1(Central Act) or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the relation of a law to the successors of any functionaries or of corporations having perpetual succession, to express its relation to the functionaries or corporations.
This section applies also to all 1(Central Acts) made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887
—-
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 19. Official chiefs and subordinates.
(1) In any 1(Central Act) or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of expressing that a law relative to the chief or superior of an officer shall apply to the deputies or subordinates lawfully performing the duties of that office in the place of their superior, to prescribe the duty of the superior.
This section applies also to all (Central Act) made after the third day of January, 186, and to all Regulations made on or after the fourteenth day of January, 1887
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 20. Construction of Notifications, etc., issued under enactments.
Where, by any (Central Act) or Regulation, a power to issue any (notification), order, scheme, rule, form, or bye-law is conferred, then expressions used in the (notification), order, scheme, rule, form or bye-law, if it is made after the commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same respective meaning as in the Act or Regulation conferring the power.
Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (15 of 1877)2 , applies.
(2) This section applies also to all 1[Central Acts] and Regulations made on or after the fourteenth day of January, 1887.
———
1. Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
2. See now the Limitation Act, 1963 (36 of 1963).
Section 21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules, or bye-laws.-
Where, by any 1[Central Act] or Regulations a power to 2[issue notifications,] orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any 3[notifications,] orders, rules or bye-laws so 4[issued].
———–
1. Subs. by A.O. 1937, for “Act of the Governor General in Council”.
2. Subs. by Act 1 of 1903, sec. 3 and Sch. II, for “make”.
3. Ins.by Act 1 of 1903, sec. 3 and Sch. II.
4. Subs. by Act 1 of 1903, sec. 3 and Sch. II, for “made”.
Section 22. Making of rules or bye-laws and issuing of orders between passing and commencement of enactment.
Where, by any 1(Central Act) or Regulation which is not to come into force immediately, on the passing thereof, a power is conferred to make rules or bye-laws, or to issue orders with respect to the application of the Act or Regulation, or with respect to the establishment of any Court or office or the appointment of any Judge or officer thereunder, or with respect to the person by whom, or the time when, or the place where, or the manner in which, or the fees for which, anything is to be done under the Act or Regulation, then that power may be exercised at any time after the passing of the Act or Regulation, but rules, bye-laws or orders so make or issued shall not take effect till the commencement of the Act or Regulation.
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1. Subs. by A.O. 1937, for “Act of the Governor General in Council”.
Section 23. Provisions applicable to making of rules or bye-laws after previous publication.
Where, by any 1(Central Act) or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely:-
The authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of person likely to be affected thereby.
The publication shall be made in such manner as that authority deems to be sufficient, or , if the condition with respect to previous publication so requires, in such manner as the 2(Government concerned) prescribed.
There shall be published with the draft a notice specifying a date on after which the draft will be taken into consideration.
The authority having power to make the rules or bye-laws , and where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may me received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified.
The publication in the 3(Official Gazette) of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made.
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1. Subs. by A.O. 1937, for “Act of the Governor General in Council”.
2. Subs. by the A.O. 1950, for “Central Government or the Provincial Government”.
3. Subs. by the A.O. 1937, for “Gazette”.
Section 24. Continuation of orders, etc, issued under enactments repealed and re-enacted.
Where any 1[Central Act] or Regulation, is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided any 2[appointment notification,] order, scheme, rule, form or bye-law, 2[made or] issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been 2[made or] issued under the provisions so re-enacted, unless and until it is superseded by any 2[appointment notification,] order, scheme, rule, form or bye-law, 2[made or] issued under the provisions so re-enacted 3[and when any 1[Central Act] or Regulation, which, by a notification under section 5 or 5A of the 6 Scheduled Districts Act, 1874, (14 of 1874) or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from the re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this section].
———–
1. Subs. by A.O. 1937, for “Act of the Governor General in Council”.
2. Ins. by Act 1 of 1903, sec. 3 and Sch. II.
3. Ins. by Act 17 of 1914, sec. 2 and Sch. I
4. Rep. by the A.O. 1937.
Section 25. Recovery of fines.
Sections 63 to 70 of the Indian Penal Code (45 of 1860) and the provision s of the 1Code of Criminal Procedure (5 of 1898) for the time being in force in relation to the issue and the execution of warrants for the levy of fines shall apply to al fines imposed under any Act, Regulation, rule or bye-law, unless the Act, Regulation, rule or bye-law contains and express provision to the contrary.
———–
1. See now the Code of Criminal Procedure, 1973 (2 of 1974).
Section 26. Provisions as to offences punishable under two or more enactments.
Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
Section 27. Meaning of service by post.
Where any 1(Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression “serve” or either of the expressions “give” or “send” or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
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1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 28. Citation of enactments.
(1) any 1(Central Act) or Regulation, and in any rule, bye-law, instrument or document, made under, or with reference to any such Act or Regulation, any enactment may be cited by reference to the title or short title (if any) conferred thereon or by reference to the number and year thereof, and any provision in an enactment may be cited by reference to the section or sub-section of the enactment in which the provision is contained.
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1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 29. Saving for previous enactment, rules any bye-laws.
The provisions of this Act respecting the construction of Acts, Regulations, rules or bye-laws made after the commencement of this Act shall not affect the construction of any Act, Regulation, rule or bye-law made before the commencement of this Act, although the Act, Regulation, rule or bye-law is continued or amended by an Act, Regulation, rule or bye-law made after the commencement of this Act.
Section 30. Application of Act to Ordinances.
1[30. Application of Act to Ordinances. —In this Act the expression 2[Central Act], wherever it occurs, except in section 5 and the word “Act” in 3[clauses (9), (13), (25), (40), (43), (52) and (54)] of section 3 and in section 25 shall be deemed to include an Ordinance made and promulgated by the Governor General under section 23 of the Indian Councils Act, 1861 (24 and 25 Vict., c.67) 4[or section 72 of the Government of India Act, 1915,] (5 and 6 Geo. V. c, 61) 5[or section 42 6[***] of the Government of India Act, 1935] (26 Geo. V. c. 2) 7[and an Ordinance promulgated by the President under article 123 of the Constitution].
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1. Ins. by Act 17 of 1914, sec. 2 and Sch. I.
2. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
3. Subs. by the A.O. 1950, for “clauses (9), (12), (38), (48) and (50)”.
4. Ins. by Act 24 of 1917, sec. 2 and Sch. I.
5. Ins. by the A.O. 1937.
6. The words and figures “or section 43” omitted by the A.O. 1947.
7. Added by the A.O. 1950.
Section 30 A. Application of Act to Acts made by the governor-general -
1[30A. Application of Act to Acts made by the Governor-General.— [Rep. by the A.O. 1937.]]
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1. Section 30A was earlier inserted by Act 11 of 1923, sec. 2 and Sch. I.
Section 31. Construction of references to Local Government of a Province.
1[31. Construction of references to Local Government of a Province. —
[ Rep. by the A.O. 1937 .]]
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1. Section 31 was earlier inserted by Act 31 of 1920, sec. 2 and Sch. I.
THE SCHEDULE .
Enactments repealed.- (Rep. By the Repealing and Amending Act, 1903 (1of 1903), sec. 4 and Sch. III).
November 30, 2014
Preamble
[9th August, 1952]
“An Act to regulate the profession of notaries.”
Be it enacted by Parliament as follows:
Section 1. Short title, extent and commencement.
[9th August, 1952]
“An Act to regulate the profession of notaries.”
Be it enacted by Parliament as follows:
(1) This Act may be called The Notaries Act, 1952
(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.
Section 2. Definitions In this Act unless the context otherwise requires.
(a) Omitted by Act 25 of 1968 (b) “Instrument” includes every document by which any right or liability is, or purpose to be, created, transferred, modified, limited, extended, suspended, extinguished or recorded. (c) “Legal Practitioner” means any advocate or agent of the supreme court to any advocate, vakil or attorney of any high court or any pleader authorised under any law for the time being in force to practice in any court of law (d) “Notary” means a person appointed as such under this act:
Provided that for a period of two years from the commencement of this Act it shall include also a person who, before such commencement, was appointed a notary public under the negotiable instruments in 1881 and is, immediately before such commencement, in practice in any part of India.
Provided further that in relation to the sat of Jammu and Kashmir the said period of two years shall be computed from the date on which this act comes into force in that State.
(e) “Prescribed” means prescribed by rules made under this act. (f) “Register” means a register of notaries maintained by the government under section 4
(g) “State Government”, in relation to a Union Territory, means the administrator thereof.
Section 3. Power to appoint Notaries.
The Central Government, for the whole or any part of India, and any such State Government, for the whole or any part of State, may appoint as notaries, any legal practitioners or other persons who possess such qualifications as may be prescribed.
Section 4. Registers.
(1) The Central Government and every State Government shall maintain, in such form as may be prescribed, a register of the notaries appointed by that Government and entitled to practice as such under this act.
(2) Every such Register shall include the following particulars about the notary is entered therein, namely:-
(a) his full name, date of birth, residential and professional address.
(b) the date on which his name is entered in the register.
(c) his qualification , and
(d) any other particulars which may be prescribed.
Section 5. Entry of names in the Register and issue or renewal of certificates of practices.
(1) Every Notary who in ends to practice as such shall, on payment to the government appointing him of the prescribed fee, if any, be entitled.-
(a) to have his name entered in the Register maintained by that government under section 4, and
(b) to a certificate authorizing him to practice for a period of three years from the date on which the certificate is issued to him.
(2) Every such notary who wishes to continue to practice after the expiry of the period for which his certificate of practice has been issued under this section shall, on application made to the Government appointing him and payment of the prescribed fee, if any, be entitled to have his certificate renewed for three years at a time.
Section 6. Annual publication of lists of notaries.
The Central Government and, every State Government shall, during the month of January each year, publish in the Official Gazzette a list of notaries appointed by that Government and in practice at the beginning of that year together with such details pertaining to them as may be prescribed.
Section 7. seal of Notaries.
every Notary shall have and use, as occasion may arise, seal of such form and design as may be prescribed.
Section 8. Function of Notaries.
(1) A notary may do all or any of the following acts by virtue of his office , namely:-
(a) verify, authenticate, certify or attest the execution of any instrument.
(b) Present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security.
(c) note to protest the dishonour by non acceptance or non payment of any promissory note, hundi, bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881, or serve notice of such note or protest.
(d) note and draw up ship’s protest, boat’s protest or protest relating to de moorage and other commercial matters.
(e) administer oath to, or take affidavit from, any person,
(f) prepare bottom and respondent bonds, charter parties and other mercantile documents.
(g) prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as many conform to the law of the place where such deed is intended to operate.
(h) translate, and verify the translation of, any document from one language to another.
(i) any other act which may be prescribed.
(2) No act specified in sub-section (1) shall be deemed to be a notaries act except when it is done by a notary under his signature and official seal.
Section 9. Bar of practice without certificate.
(1) Subject to the provision of this section, no person shall practice as a notary or do any notaries act under the official seal of notary unless he holds a certificate of practice in force issued to him under section 5.
Provided that nothing in this sub-section shall apply to the presentation of any promissory note, hundi or bill of exchange for acceptance or payment by the clerk of a notary acting on behalf of such notary.
(2) Nothing contained in sub-section (1) shall, until the expiry of two years from the commencement of this Act, apply to any such person as is referred to in the provision to clause (d) of section 2.
Provided that in relation to Jammu and Kashmir the said period of two years shall be computed from the date on which this act comes in to force in that state.
Section 10. Removal of names from the Register.
The Government appointing any notary may, by order, remove from the Register maintained by it under section 4, the names of the notary if he:-
(a) makes a request to that effect; or
(b) has not paid any prescribed fee required to be paid by him; or
(c) is an undischarged solvent; or
(d) has been found, upon inquiry in the prescribed manner, to be guilty of such professional or other misconduct as, in the opinion of the government, renders him unfit to practice as a notary.
Section 11. Construction of references to notaries public in other laws.
Any reference to a notary public in any other law shall be construed as a reference to a notary entitled to practice under this act.
Section 12. Penalty for falsely representing to be Notary, etc.
Any person who -
(a) falsely represents that he is a notary without being appointed as such, or
(b) practices as a notary or does any notaries act in contravention of section 9, shall be punishable with imprisonment for a term which may extend to three months, or with fine, or with both.
Section 13. Cognizance of Offence.
(1) No court shall take cognizance of any offence committed by a notary in the exercise or purported exercise of his function under this act save upon complaint in writing made by an officer authorised by the Central Government or State Government by general or special order in this behalf.
(2) No Magistrate other than a Presidency Magistrate or a Magistrate of the first class shall try an offence punishable under this act.
Section 14. Reciprocal arrangements for recognition of notaries acts done by foreign notaries.
If the Central Government is satisfied that by law or practice of any country or place outside India, the notaries act done by notaries within India are recognised for all or any limited purposes in that country or place, the Central Government may, by notification in the Official Gazette, declare the notorial acts lawfully done by notaries within such country or place shall be recogniseed within India for all purposes or, as the case may be, for such limited purposes as may be notified in the notification.
Section 15. Power to make rules.
(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this act.
(2) In particular, and without prejudice to the generality of the forgoing power, such rules may provide for all or any of the following matters, namely:-
(a) the qualification of a notary, the form and manner in which applications for the appointment as a notary may be made and the disposal of such applications;
(b) the certificates, testimonials or proofs as to character, integrity, ability and competence which any person applying for appointment as a notary may be required to furnish;
(c) the fee payable for appointment as a notary and for the issue and renewal of sa certificate of practice, and exemption , whether wholly or in part, from such fees in specified classes of cases;
(d) the fees payable to a notary for doing any notarial act;
(e) the form of registers and the particulars to be entered therein;
(f) the form and design of the seal of notary;
(g) the manner in which inquiries into allegations of professional or other misconduct of notaries may be made;
(h) the acts which a notary may do in addition to those specified in section 8 and the manner in which a notary may perform his functions;
(i) any other matter which has to be, or may be prescribed.
(3) Every rule made by the central government under this act shall be laid as soon as may be after it is made, before each house of parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if before the expiry of session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
Section 16. Amendment of Act 26 of 1881.
Repealed by the repealing and Amending Act, 1957 (36 of 1957), section 2 and schedule I.
November 30, 2014
Section 1. SHORT TITLE, EXTENT AND COMMENCEMENT.
ACT NO. 69 OF 1980 [27th December, 1980.]
An Act to provide for the conservation of forests and for matters connected therewith or ancillary or incidental thereto. Be it enacted by Parliament in the Thirty-first Year of the Republic of India as follows:- 1. Short title, extent and commencement.(1) This Act may be called the Forest (Conservation) Act, 1980. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) It shall be deemed to have come into force on the 25th day of October, 1980.
(1) This Act may be called the Forest (Conservation) Act, 1980.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall be deemed to have come into force on the 25th day of October, 1980.
Section 2. RESTRICTION ON THE PRESERVATION OF FORESTS OR USE OF FOREST LAND FOR NON-FOREST PURPOSE.
Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing -
(i) That any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved.
(ii) That any forest land or any portion thereof may be used for any non-forest purpose.
(iii) That any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;
(iv) That any forest land or any portion thereof may be cleared of trees
which have grown naturally in that land or portion, for the purpose of using it for reforestation.
Explanation : For the purpose of this section “non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for -
(a) The cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;
(b) Any purpose other than reforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.
Section 3. CONSTITUTION OF ADVISORY COMMITTEE.
The Central Government may constitute a Committee consisting of such number of persons as it may deem fit to advise that Government with regard to -
(i) The grant of approval under Section 2; and
(ii) Any other matter connected with the conservation of forest which may be referred to it by the Central Government.
Section 3-A. PENALTY FOR CONTRAVENTION OF THE PROVISIONS OF THE ACT.
Whoever contravenes or abets the contravention of any of the provisions of Section 2, shall be punishable with simple imprisonment for a period which may extend to fifteen days.
Section 3-B. OFFENCES BY AUTHORITIES AND GOVERNMENT DEPARTMENTS.
(1) Where any offence under this Act has been committed -
(a) by any department of Government, the head of the department; or
(b) by any authority, every person, who, at the time the offence was committed, was directly in charge, of, and was responsible to, the authority for the conduct of the business of the authority as well as the authority, 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 the head of the department or any person referred to in clause (b), 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 punishable under the Act has been committed by a department of Government or any authority referred to in clause (b) of sub-section (1) and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any officer, other than the head of the department, or in the case of any authority, any person other than the persons referred to in clause (b) of sub-section (1), such officer or persons shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Section 4. POWER TO MAKE RULES.
(1) The Central Government may, be notification in the Official Gazette, make rules for carrying out the provisions of this Act.
(2) Every rule made under this Act shall be laid, as soon as may be, after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
Section 5. REPEAL AND SAVING.
(1) The Forest (Conservation) Ordinance, 1980 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the provisions of the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.
November 30, 2014
Section 1. Short title, extent and commencement
(1) This Act may be called the Arms Act, 1959.
(2). It extends to the whole of India.
(3). It shall come into force on such date [ Note: 1st October, 1962, vide Notification No. G.S.R. 992, dated 13-7-1962, see Gazette of India, Pt. II, sec. 3(i) p. 1092. ] as the Central Government may, by notification in the Official Gazette, appoint.
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1. Came into force on 1-10-1962 vide G.S.R. 992, dated 13th July, 1962.
Section 2. Definition and interpretation
(1) In this Act, unless the context otherwise requires,—
(a) “acquisition” with its grammatical variations and cognate expressions, includes hiring, borrowing, or accepting as a gift;
(b) “ammunition” means ammunition for any firearm, and includes—
(i) rockets, bombs, grenades, shells 1[and other missiles],
(ii) articles designed for torpedo service and submarine mining,
(iii) other articles containing, or designed or adapted to contain, explosive, fulminating or fissionable material or noxious liquid, gas or other such thing, whether capable of use with firearms or not,
(iv) charges for firearms and accessories for such charges,
(v) fuses and friction tubes,
(vi) parts of, and machinery for manufacturing, ammunition, and
(vii) such ingredients of ammunition as the Central Government may, by notification in the Official Gazette, specify in this behalf;
(c) “arms” means articles of any description designed or adapted as weapons for offences, or defence, and includes firearms, sharp-edged and other deadly weapons, and parts of, and machinery for manufacturing arms, but does not include articles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons;
2[(d) “district magistrate” in relation to any area for which a Commissioner of Police has been appointed, means the Commissioner of Police thereof and includes any such Deputy Commissioner of Police, exercising jurisdiction over the whole or any part of such area, as may be specified by the State Government in this behalf in relation to such area or parts;]
(e) “firearms” means arms of any description designed or adapted to discharge a projectile or projectiles of any kind by the action of any explosive or other forms of energy, and includes,—
(i) artillery, hand-grenades, riot-pistols or weapons of any kind designed or adapted for the discharge of any noxious liquid, gas or other such things,
(ii) accessories for any such firearm designed or adapted to diminish the noise or flash caused by the firing thereof,
(iii) parts of, and machinery for manufacturing, firearms, and
(iv) carriages, platforms and appliances for mounting, transporting and serving artillery;
(f) “licensing authority” means an officer or authority empowered to grant or renew licences under rules made under the Act, and includes, the Government;
3[(ff) “magistrate” means an Executive Magistrate under the Code of Criminal Procedure, 1973 (2 of 1974);]
(g) “prescribed” means prescribed by rules made under this Act;
(h) “prohibited ammunition” means any ammunition, containing, or designed or adapted to contain, any noxious liquid, gas or other such thing, and includes rockets, bombs, grenades, shells, 4[missiles] articles designed for torpedo service and submarine mining and such other articles as the Central Government may, by notification in the Official Gazette, specify to be prohibited ammunition;
(i) “prohibited arms” means—
(i) firearms so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty, or
(ii) weapons of any description designed or adapted for the discharge of any noxious liquid, gas or other such thing,
and includes artillery, anti-aircraft and anti-tank firearms and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms;
(j) “public servant” has the same meaning as in section 21 of the Indian Penal Code (45 of 1860);
(k) “transfer” with its grammatical variations and cognate expressions, includes letting on hire, lending, giving and parting with possession.
(2) For the purposes of this Act, the length of the barrel of a firearm shall be measured from the muzzle to the point at which the charge is exploded on firing.
(3) Any reference in the Act to any law which is not in force in any area shall, in relation to that area, be construed as a reference to the corresponding law, if any, in force in that area.
(4) Any reference in this Act to any officer or authority shall, in relation to any area in which there is no officer or authority with the same designation, be construed as a reference to such officer or authority as may be specified by the Central Government by notification in the Official Gazette.
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1. Subs. by Act 42 of 1988, sec. 2, for “and other like missiles” (w.r.e.f. 27-5-1988).
2. Subs. by Act 55 of 1971, sec. 2, for clause (d) (w.e.f. 13-12-1971).
3. Ins. by Act 25 of 1983, sec. 2 (w.r.e.f. 22-6-1983).
4. Ins. by Act 42 of 1988, sec. 2 (w.r.e.f. 27-5-1988).
Chapter II – ACQUISITION, POSSESSION, MANUFACTURE, SALE, IMPORT, EXPORT AND TRANSPORT OF ARMS AND AMMUNITION
Section 3. Licence for acquisition and possession of firearms and ammunition
[ Note: S. 3 renumbered as sub section (1) thereof by Act 25 of 1983, s. 3 (w.e.f. 22-6-1983) ] (1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under :
Provided that a person may, without himself holding a licence carry any firearms or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.
(2) [ Note: Ins. by s. 3., ibid., (w.e.f. 22-6-1983) ] Notwithstanding anything contained in sub-section (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession to carry, at any time, more than three firearms:
Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such, commencement the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section(1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section.
(3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice.
(4) The provisions of sub-section (2) to (6) (both inclusive) of section 21 shall apply in relation to any deposit of firearms under the proviso to sub-section(2) as they apply in relation to the deposit of any arms or ammunition under sub-section (1) of that section.]
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1. Section 3 re-numbered as sub-section (1) thereof by Act 25 of 1983, sec. 3 (w.r.e.f. 22-6-1983).
2. Ins. by Act 25 of 1983, sec. 3 (w.r.e.f. 22-6-19830).
*. 22nd day of June, 1983.
Section 4. Licence for acquisition and possession of arms of specified description in certain cases
If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under.
Section 5. Licence for manufacture, sale, etc., of arms and ammunition
1[(1)] No person shall—
(a) 2[use, manufacture], sell, transfer, convert, repair, test or prove, or
(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof,
any firearms or any other arms of such class or description as may be prescribed or any ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.
3[***]
4[(2) Notwithstanding anything contained in sub-section (1), a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for his own private use to another person who is entitled by virtue of this Act, or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having in his possession such arms or ammunition:
Provided that no firearm or ammunition in respect of which a licence is required under section 3 and no arms in respect of which a licence is required under section 4 shall be sold or transferred by any person unless—
(a) he has informed in writing the district magistrate having jurisdiction or the officer in charge of the nearest police station of his intention to sell or transfer such firearms, ammunition or other arms and the name and address of the person to whom he intends to sell or transfer such firearms, ammunition or the other arms, and
(b) a period of not less than forty-five days has expired after the giving of such information.]
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1. Section 5 re-numbered as sub-section (1) thereof by Act 25 of 1983, sec. 4 (w.r.e.f. 22-6-1983).
2. Subs. by Act 42 of 1988, sec. 3, for “manufacture” (w.r.e.f. 27-5-1988).
3. Proviso omitted by Act 25 of 1983, sec. 4 (w.r.e.f. 22-6-1983).
4. Ins. by Act 25 of 1983, sec. 4 (w.r.e.f. 22-6-1983).
Section 6. Licence for the shortening of guns or conversion of imitation firearms into firearms
No person shall shorten the barrel of a firearm or convert an imitation firearm into a firearm unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under.
Explanation – In this section, the expression ‘imitation firearms” means anything which has the appearance of being a firearm, whether it is capable of discharging any shot, bullet or other missile or not.
Section 7. Prohibition of acquisition or possession, or of manufacture or sale, or prohibited arms or prohibited ammunition
No person shall –
(a) acquire, have in his possession or carry; or
(b) 1[ Note: Subs. by Act 42 of 1988, s. 4 (w.e.f. 27-5-1988) ] use, manufacture,] sell, transfer, convert, repair, test or prove ; or
(c) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair test for proof,
any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf.
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1. Subs. by Act 42 of 1988, sec. 4, for “manufacture” (w.r.e.f. 27-5-1988).
Section 8. Prohibition of sale or transfer of firearms not bearing identification marks
(1) No person, shall obliterate, remove, alter or forge any name, number or other identification mark stamped or otherwise shown on a firearm.
(2) No person shall sell or transfer any firearm which does not bear the name of the maker, manufacturer’s number or other identification mark stamped or otherwise shown thereon in a manner approved by the Central Government.
(3) Whenever any person has in his possession any firearms without such name, number or other identification mark on which such name, number or other identification mark has been obliterated, removed, altered or forged, it shall be presumed unless the contrary is proved, that he has obliterated, removed, altered or forged that name, number or other identification mark ;
Provided that in relation to a person who has in his possession at the commencement of this Act any firearms without such name, number or other identification mark stamped or otherwise shown thereon, the provisions of this sub-section shall not take effect until after the expiration of one year from such commencement.
Section 9. Prohibition of acquisition or possession by, or of sale or transfer to young persons and certain other persons of fire arms, etc,
(1) Notwithstanding anything in the foregoing provisions of this Act –
(a) No person,-
(i) Who has not completed the age of 1[twenty-one years], or
(ii) Who has been sentenced on conviction of any offence involving
violence or moral turpitude to imprisonment for 2any terms] at any time during a period of five years after the expiration of the sentence, or
(iii) Who has been ordered to execute under Chapter VIII of the3 Code of Criminal Procedure, 1973 (2of 1974)] a bond for keeping the peace or for good behavior, at any time during the term of the bond.
Shall acquire, have in his possession or carry any firearm or ammunition;
(b) No person shall sell or transfer any firearm or ammunition to , or convert, repair, test or prove any firearm or ammunition for, any other person whom he knows, or has reason to believe—
(i) To be prohibited under clause (a) from acquiring, having in his possession or carrying any firearm or ammunition, or
(ii) To be of unsound mind at the time of such sale or transfer, or such conversion, repair, test of proof.
(2) Notwithstanding anything in sub-clause (I) of clause (a) of sub-section (1), a person who has attained the prescribed age – limit may use under prescribed condition such firearms as may be prescribed in the course of his training in the use of such firearms:
Provided that different age –limits may be prescribed in relation to different types of firearms.
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1. Subs. by Act 25 of 1983, sec. 5, for “sixteen years” (w.e.f. 22-6-1983).
2. Subs. by Act 25 of 1983, sec. 5, for “a term of not less than six months” (w.r.e.f. 22-6-1983).
3. Subs. by Act 25 of 1983, sec. 5, for “Code of Criminal Procedure, 1898 (5 of 1898)” (w.r.e.f. 22-6-1983).
Section 10. Licence for import and export of arms , etc.
(1) No person shall bring into, or take out of India by sea, land or air any arms or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under:
Provided that –
(a) a person who is entitled by virtue of this Act or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having , in his possession any arms or ammunition, may without a licence in this behalf bring into, or take out of, India such arms or ammunition in reasonable quantities for his own private use;
(b) a person being a bona fide tourist belonging to any such country as the Central Government may, by notification in the Official Gazette, specify, who is not prohibited by the laws of that country from having in his possession any arms or ammunition, may, without a licence under this section but in accordance with such conditions as may be prescribed, bring with him into India arms and ammunition in reasonable quantities for use by him for purposes only of sport and for no other purpose.
Explanation-For purpose of clause (b) of this proviso, word “tourist” means a person who not being a citizen of India visits India for a period not exceeding six months with no other object than recreation, sight-seeing, or participation in a representative capacity in meetings convened by the Central Government or in international conferences, associations or other bodies.
(2) Notwithstanding anything contained in the proviso to subsection (1) where the collector of customs or any other officer empowered by the Central Government in this behalf has any doubt as to the applicability of clause (a) or clause (b) of that proviso to any person who claims that such clause is applicable to him or as to the reasonableness of the quantities of arms or ammunition in the possession of any person referred to in such clause, or as to the use to which such arms or ammunition in the possession of such person until he receives the orders of the Central Government in relation thereto.
(3) Arms and ammunition taken from one part of India to another by sea or air or across any intervening territory not forming a part of India, are taken out of, and brought into, India within the meaning of this section.
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1. Subs. by Act 22 of 1995, sec. 89, for “Collector of Customs” (w.e.f. 26-5-1995).
Section 11. Power to prohibit import or export of arms, etc.
The Central Government may, by notification in the Official Gazette prohibit the bringing into, or the taking out of, India, arms or ammunition of such classes and descriptions as may be specified in the notification.
Section 12. Power to restrict or prohibit transport of arms
(1) The Central Government may, by notification if the Official Gazette, –
(a) Direct that no person shall transport over India or any part thereof arms or ammunition of such classes and descriptions as may be specified in the notification unless he holds in this behalf a licence issued a accordance with provisions of this Act, and rules made there under; or
(b) Prohibit such transport altogether.
(2) Arms or ammunition trans-shipped at a seaport or an airport in India are transported within the meaning of this section.
Chapter III – PROVISIONS RELATING TO LICENCES
Section 13. Grant of licences
(1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.
(2) [ Note: Subs. by Act 25 of 1983, s. 6 (w.e.f. 22-6-1983) ] On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.
(2A) The licensing authority, after such inquiry, if any, as it may, consider necessary, and after considering the report received under sub-section(2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same.
Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deem fit, make such order, after the expiry of the prescribed time, without further waiting for the report].
(3) The licensing authority shall grant –
(a) A licence under section 3 where the licence is required –
(i) By a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of muzzle loading gun to be used for bona fide crop protection:
Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that in muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun a aforesaid for such protection, or
(ii) In respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of rifle club or rifle association licensed or recognised by the Central Government ;
(b) A licence under section 3 in any other case or licence under section 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same.
Section 14. Refusal of licences
(1) Notwithstanding anything in section 13, licensing authority shall refuse to grant –
(a) a licence under section 3, section 4, or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition:
(b) A licence in any other case under Chapter II,-
(i) where such licence is required by a person whom then licensing authority has reason to believe-
(1) to be prohibited by this Act or by any other law for the time being in force from acquiring, having in his possession or carrying any arms or ammunition, or
(2) to be of unsound mind, or
(3) to be for any reason unfit for a licence under this Act, or
(ii) where the licensing authority deems it necessary for the sec
urity of the public peace or for public safety to refuse to grant such licence.
(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.
(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.
Section 15. Duration and renewal of licence
(1) A licence under section3 shall, unless revoked earlier, continue in force for a period of three years from the dare on which it is granted:
Provided that such a licence may be granted for a shorter period if the person by whom the licence is required so desires or if the licensing authority for reasons to be recorded in writing considers in any case that the licence should be granted for a shorter period.
(2) A licence under any other provision of Chapter II shall, unless revoked earlier, continue in force for such period from the dare on which it is granted as the licensing authority may in each case determine.
(3) Every licence shall, unless the licensing authority for reasons to be recorded in writing otherwise decides in any case, be renewable for the same period for which the licence was originally granted and shall be so renewable from time to time, and the provisions of section 13 and 14 shall apply to the renewal of a licence as they apply to the grant thereof.
Section 16. Fees, etc., for licence
The fees on payment of which, the condition subject to which and the form in which a licence shall be granted or renewed shall be such as may be prescribed:
Provided that different fee, different conditions and different forms may be prescribed for different types of licences:
Provided further that a licence may contain in addition to prescribed conditions such other conditions as may be considered necessary by the licensing authority in any particular case.
Section 17. Variation, suspension and revocation of licences
(1) The licensing authority may very the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence holder by notice in writing to deliver-up the licence to it within such time as may be specified in the notice.
(2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.
(3) The licensing authority may by order in writing suspend a licence for such periods it thinks fit or revoke a licence –
(a) if the licensing authority is satisfied that the holder of the licence is prohibited by this Act or by any other law for the time being in force, from acquiring, having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a licence under this Act; or
(b) if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or
(c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it; or
(d) if any of the conditions of the licence has been contravened; or
(e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence.
(4) The licensing authority may also revoke a licence on the application of the holder thereof.
(5) Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing the reasons therefor and furnish tot he holder of the licence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.
(6) The authority to whom the licensing authority is subordinate may by order in writing suspend for revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority.
(7) A court conviction the holder of a licence of any offence under this Act or the rules made there under may also suspend or revoke the licence :
Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.
(8) An order of suspension or revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.
(9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act throughout India or any part thereof.
(10) On the suspension or revocation of a licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation.
Section 18. Appeals
(1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority is subordinate, suspending or revoking a licence may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed:
Provided that no appeal shall lie against any order made by, or under the direction of the Government. (1) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefore:
Provided that an appeal may be admitted after the expiry of the period prescribed therefore if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period.
(3) The period prescribed for an appeal shall be computer in accordance with the provision of the Indian Limitation Act, 1908 (9 of 1908), with respect to the computation of periods of limitation there under .
(4) Every appeal under this section shall be made by a petition in writing ahs shall be accompanied by a brief statement of the reasons for the order appealed against where such statement has been furnished to the appellant and by such fee as may be prescribed.
(5) In disposing of an appeal the appellate authority shall follow such procedure as may be prescribed :
Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of being heard.
(6) The order appealed against shall, unless the appellate authority conditionally or unconditionally directs otherwise, be in force pending the disposal of the appeal against such order.
(7) Every order of the appellate authority confirming, modifying or reversing the order appealed against shall be final.
Chapter IV – POWERS AND PROCEDURE
Section 19. Power to demand production of licence, etc.
(1) Any police officer or any other officer specially empowered in this behalf by the Central Government may demand the production of his licence from any person who is carrying any arms or ammunition.
(2) If the person upon whom a demand is made refuses for fails to produce the licence or to show that he is entitled by virtue of this Act or any other law for the time being in force to carry such arms or ammunition without a licence, the officer concerned may require him to give his name and address and if such officer considers it necessary, seize from t hat person the arms or ammunition which he is carrying.
(3) If that person refuses to give his name and address or if the officer concerned suspects that person of giving a false name or address or of intending to abscond, such officer may arrest him without warrant
Section 20. Arrest of persons conveying arms, etc., under suspicious circumstances
Where any person found carrying or conveying any arms or ammunition whether covered by a licence or not, in such manner or under such circumstances as to afford just grounds of suspicion that the same are or is being carried by him with intent to use them, or that the same may be used, for any unlawful purpose any magistrate, any police officer or any other public officer or any other public servant or any person employed or working, upon a railway, aircraft, vessel, vehicle or any other means of conveyance, may arrest him without warrant and seize from him such arms or ammunition.
Section 21. Deposit of arms, etc., on possession ceasing to be lawful
(1) Any person having in his possession any arms or ammunition the possession whereof has, in consequence of the expiration of the duration of a licence or of the suspension or revocation of a licence or by the issue of a notification under section 4 or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer in charge of the nearest police station or subject to such conditions as may be prescribed, with a licensed dealer or where such person is a member of the armed force of the Union, in a unit armory.
Explanation –In this sub-section “unitarmoury” includes and armory in a ship or establishment of the Indian Navy.
(2) Where arms or ammunition have or has been deposited under sub-section (1) the depositor or in the case of his death, his legal representative, shall, at any time before the expiry of such period as may be prescribed, be entitled-
(a) to receive back anything so deposited on his becoming entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, or
(b) to dispose, or authorise the disposal, of anything so deposited by sale or otherwise to any person entitled by virtue of this Act or any other law for the time being in force to have, or not prohibited by this Act or such other law from having, the same in his possession and to receive the proceeds of any such disposal :
Provided that nothing in this sub-section be deemed to authorise the return or disposal of anything of which confiscation has been directed under section 32.
(3) All things deposited and not received back or disposed of under sub-section (2) within the period therein referred to shall be forfeited to Government by order of the district magistrate :
Provided that in the case of suspension of a licence no such forfeiture shall be ordered in respect of a thing covered by the licence during the period of suspension.
(4) Before making an order sub-section (3) the district magistrate shall by notice in writing to be served upon the depositor or in the case of his death, upon his legal representative, in the prescribed manner, require him to show cause within thirty days from the service of the notice why the things specified in the notice should not be forfeited.
(5) After considering the cause, if any, shown by the depositor or as the case may be, his legal representative, district magistrate shall pass such order as he thinks fit.
(6) The Government may any time return to the depositor or his legal representative things forfeited to it or the proceeds of disposal thereof wholly or in part.
Section 22. Search and seizure by magistrate
(1) Whenever any magistrate has reason to believe –
(a) That any person residing within the local limits of his jurisdiction has in his possession any arms or ammunition for any unlawful purpose, or
(b) That such person cannot be left in the possession of any arms or ammunition without danger to the public peace or safety, the magistrate may, after having recorded the reasons for his belief, cause a search to be made of the house or premises occupied by such arms or ammunition are or is to be found and may have such arms or ammunition, if any, seized and detain the same in sate custody for such period as he thinks necessary, although that person may be entitled by virtue of this Act or any other law for the time being in force to have the same in his possession.
(2) Every search under this section shall be conducted by or in the presence of a magistrate or by or in the presence of some officer specially empowered in this behalf by the Central Government.
Section 23. Search of vessels, vehicles for arms, etc.
Any magistrate, any police officer or any other officer specially empowered in this behalf by the Central Government, may for the purpose of ascertaining whether any contravention of this Act or the rules made there under is being or is likely to be committed, stop and search any vessel, vehicle or other means of conveyance and seize any arms or ammunition that may be found therein along with such vessel, vehicle or other means of conveyance.
Section 24. Seizure and detention under orders of the Central Government
The Central Government may at any time order the seizure of any arms or ammunition in the possession of any person, notwithstanding that such person is entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, any may detain the same for such period as it thinks necessary for the public peace and safety.
Section 24 A. Prohibition as to possession of notified arms in disturbed areas, etc.
[ Note: Ss. 24A and 24B Ins. by Act 25 of 1983, s. 7 (w.e.f 22-6-1983) ] (1) Where the Central Government is satisfied that there is extensive disturbance of public peace and tranquility or imminent danger of such disturbance in any area and that for the prevention of offences involving the use or arms in such area, it is necessary or expedient so to do, it may by notification in the Official Gazette-
(a) Specify the limits of such area;
(b) Direct that before the commencement for the period specified in the notification (which period shall be a period commencing from a date not earlier than the fourth day after the date of publication of the notification in the Official Gazette), every person having in his possession in such area any arms of such description as may be specified in the notification (the arms so specified being hereafter in this section referred to as notified arms), shall deposit the same before such commencement in accordance with the provision of section 21 and for this purpose the possession by such person of any notified arms, shall, notwithstanding anything contained in any other provision of this Act (except section 41) or in any other law for the time being in force, as from the date of publication such notification in the Official Gazette be deemed to have ceased to be lawful;
(c) Declare that as from the commencement of, and until the expiry of, the period specified in the notification, it shall not be lawful for any person to have in his possession in such area any notified arms;
(d) Authorise any such office subordinate to the Central Government or a State Government may be specified in the notification.-
(i) To search at any time during the period specified in the notification any person in, or passing through, or any premises in, or any animal or vessel or vehicle or other conveyance of whatever nature in or passing through, or any receptacle or other container of whatever nature in or passing through in, such area if such officer has been to believe that any notified arms are secreted by such person or in such premises or on such animal or in such vessel, vehicle or other conveyance or in such receptacle or other container;
(ii) To seize at any time during the period specified in the notification any notified arms in the possession of any person in such area or discovered through a search under sub-clause (I), and detain the same during the period specified in the notification.
(2) The period specified in a notification issued under sub-section (1) in respect of any area shall not, in the first instance, exceed ninety days, but in the Central Government may amend such notification to extend such period from time to time by any period not exceeding ninety days at any one time if, in the opinion of that Government, there continues to be in such area such disturbance of public peace and tranquility as if referred to in sub-section (1) or imminent danger thereof and that for the prevention of offences involving the sue of arms in such area it is necessary or expedient so to do.
(3) The provision of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizures shall, so far as may be, apply to any search or seizure made under sub-section.-(1).
(4) For the purposes of this section,-
(a) “Arms” includes ammunition;
(b) Where the period specified in a notification, as originally issued under sub-section (1), is extended under sub-section (2), then, in relation to such notification, reference in sub-section (1) to “the period of specified in the notification” shall be construed as references to the period as so extended.
Section 24 B. Prohibition as to carrying of notified arms in or through public places in disturbed areas, etc.
(1) Where the Central Government is satisfied that there is extensive disturbance in any area and that for the prevention of offences involving the sue of arms in such area and that for the prevention of offences involving the use of arms in such area it is necessary or expedient so to do –
It may, by notification in the Official Gazette,-
(a) Specify the limits of such area;
(b) Direct that during the period specified in the notification (which period commencing from a date not earlier than the second day after the date of publication of the notification in the Official Gazette), no person shall carry or otherwise have in his possession any arms of such description as may be specified in the notification (the arms so specified being hereafter in this section referred to as notified arms) through or in any public place in such area;
(c) Authorise any such officer subordinate to the Central Government or a State Government as may be specified in the notification,-
(i) To search at any time during the period specified in the notification any person in or passing through, or any premises in or forming part of, of any animal or vessel or vehicle or other conveyance of whatever nature, in or passing through, or any receptacle or other container of whatever nature in, any public place in such area if such officer has reason to believe that any notified arms are secreted by such person or in such premises or on such animal or in such person or in such premises or on such animal or in such vessel, vehicle or other conveyance or in such receptacle or other container;
(ii) To seize at any time during the period specified in the notification any notified arms being carried by or otherwise in the possession of any person, through a search under such-clause (I), and detain the same during the period specified in the notification.
(2) The period specified in a notification issued under sub-section (1) in respect of any area shall not, in the first instance, exceed ninety days, but the Central Government may amend such notification to extend such period from time to time by any period not exceeding ninety days at any one time if, in the opinion of that Government, there continues to be in such area such disturbance of public peace and tranquility as is referred to in sub-section (1) or imminent danger thereof and that for the prevention of offences involving the use of arms in such area it is necessary or expedient so to do.
(3) The provisions of the Code of Criminal Procedure, 1973, (2 of 1974), relating to searches and seizures shall, so far as may be, apply to any search or seizure made under sub-section (1).
(4) For the purposes of this section,-
(a) “Arms” includes ammunition;
(b) “Public place” means any place intended for use by, or accessible to, the public or any section of the public ; and
(c) Where the period specified in a notification, as originally issued under sub-section (1), is extended under sub-section (2), then, in relation to such notification, reference in sub-section (I) to “the period specified in the notification” shall be construed as reference to the period as so extended.]
Chapter V – OFFENCES AND PENALTIES
Section 25. Punishment for certain offences- [Note: Subs. by Act 25 of 1983, s. 8 (w.e.f. 22-6-1983) ]
(1) Whoever –
(a) Manufactures sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair ,test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or
(c) [ Note: Omitted by Act 42 of 1988, s. 5 (w.e.f. 27-5-1988) ]
(d) Bring into, or takes out of India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
[ (1A) [ Note: Renumbered and Ins. by s. 5, ibid. (w.e.f. 27-5-1988) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.
[(1AA) Whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for life and shall also be liable to fine.]
[(1AAA)] [ Note: Renumbered and Ins. by s. 5, ibid. (w.e.f. 27-5-1988) Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term whish shall not be less than [ [Note: Subs. by Act 39 of 1985, s. 2 for certain words.] three years, but which may extend to seven years] shall also be liable to fine.
(IB) Whoever-
(a) Acquires, has in his possession or carries any firearm or ammunition in contravention of section3, or
(b) Shortens the barrel of a firearm or converts an imitation firearm in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section ; or
(c) Sells or transfer any firearm which does not bear the name of the maker stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or
(d) Being a person to whom sub-clause (ii) or sub-section (iii) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearms or ammunition contravention of that section;
(e) Sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or
(f) Brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or
(g) Transport any arms or ammunition in contravention of section 12; or
(h) Fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or
(i) Being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept,
Shall be punishable with imprisonment for a term which shall not be less than [ [Note: Subs. by Act 39 of 1985, s. 2 for “six months”.] one year] but which may extend to three years and shall also be liable to fine:
Provided that Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than [one year]
(IC) [ Note : Ins. by s. 2, ibid.] Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed are shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation –For the purposes of this sub-section, :”disturbed area” means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.]
(2) Whoever being a person to whom sub-clause (I) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for term which may extend to one year, or with fine or with both.
(3) [ Note: Subs. by Act 25 of 1983, s. 8 (w.e.f. 22-6-1983) ] Whoever sells or transfers any firearm, ammunition or other arms –
(i) Without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of the firearm, ammunition or other arms; or
(ii) Before the expiration of the period of forty five days from the date of giving such information to such district magistrate or the officer in charge of the police station.
In contravention of the provisions of clause (a) or clause (b) of the proviso to sub-section (2) of section 5, shall be punishable with imprisonment for a term which may extend to five hundred rupees, or with both].
(4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub-section (10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.
(5) Whoever, when required under section 19 to give his name and address, rupees, refuses to give such name and address to gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.
Section 26. Secret contraventions
[ Note: Subs. by Act 25 of 1983, s.9 (w.e.f. 22-6-1983) ] (1) Whoever does any act in contravention of any of the provisions of section 3,4,10 or 12 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means or conveyance, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and also with fine.
(2) Whoever does any act in contravention of any of the provisions of section 5,6,7 or 11 in such manner as to indicate an intention that such act may not be known to any public servant or to any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, shall be punishable with imprisonment for a term which shall not less than five years but which may extend to ten years and also with fine.
(3 ) Whoever on any search being made under section 22 conceals or attempts to conceal any arms or ammunition, shall be punishable with imprisonment for a term which may extend to ten years and also with fine.
Section 27. Punishment for using arms, etc.
[ Note: Subs. by Act 42 of 1988, s. 6 (w.e.f. 27-5-1988) ] (1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3) [Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death.]
Section 28. punishment for use and possession of firearms of limitation firearms in certain cases
Whoever makes or attempts to make any use whatsoever or a firearm or an imitation firearm with intent to resist or prevent the lawful arrest or detention of himself or any other person shall be punishable with imprisonment for a term which may extend to seven years [ [ Note: Subs. by Act 25 of 1983, s. 10 (w.e.f 22-6-1983). ] and with fine].
Explanation-In this section the expression “imitation firearm” has the same meaning as in section 6.
Section 29. Punishment for knowingly purchasing arms, etc., from unlicensed person or for delivering arms, etc., to person not entitled to possess the same
Whoever –
(a) Purchase any firearms or any other arms of such class or description as may be prescribed or any ammunition from any other person knowing that such other person is not licensed or authorised under section 5; or
(b) Delivers any arms or ammunition into the possession of another person is entitled by virtue of this Act or any other law for the time being in force to have, and is not prohibited by this Act or such other law from having, in his possession the same, shall be punishable with imprisonment for a term which may extend to[ [ Note: Subs. by s. 11, ibid., (w.e.f. 22-6-1983) ] three years, or with fine, or with both].
Section 30. Punishment for contravention of licence or rule
Whoever contravenes any condition of a licence or any provision of this Act or any rule made there under, for which no punishment is porvide4d elsewhere in this Act shall be punishable with imprisonment for a term which may extend to [ [ Note: Subs. by Act 25 of 1983, s. 12 (w.e.f. 22-6-1983) ] six months], or with fine which may extend to [ [ Note: Subs. by Act 25 of 1983, s. 12 (w.e.f. 22-6-1983) two thousand] rupees, or with both.
Section 31. Punishment for subsequent offences
Whoever having been convicted of an offence under this Act is again convicted of an offence under this Act shall be punishable with double the penalty provided for the letter offence.
Section 32. Power to confiscate
(1) When any person is convicted under this Act of any offence committed by him in respect of any arms or ammunition, it shall be in the discretion of the convicting Court further to direct that the whole or any portion of such arms or ammunition, and any vessel, vehicle or other means of conveyance and any receptacle shall be confiscated:
Provided that if the conviction is set aside on appeal or otherwise, the order of confiscation shall become void.
(2) An order of confiscation may also be made by the appellate Court or by the High Court when exercising its powers of revision.
Section 33. Offence by companies
(1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, or was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall 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 under this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such office.
(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 or the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the 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 or individuals; and
(b) “Director”, in relation to a firm, means a partner in the firm.
Chapter VI – MISCELLANEOUS
Section 34. Sanction of the Central Government for Warehousing of Arms
Notwithstanding anything contained in the [ [ Note: Subs. by Act 25 of 1983, s. 13 (w.e.f. 22-6-1983) ] Customs Act, 1962, (52 of 1962)] no arms or ammunition shall be deposited in any warehouse licensed under [[ Note: Subs. by Act 25 of 1983, s. 13 (w.e.f. 22-6-1983) ] section 58] of that Act without the sanction of the Central Government.
Section 35. Criminal responsibility of person in occupation of premises in certain cases
Where any arms or ammunition in respect of which any offences under this Act has been or is being committed are or is found in any premises, vehicle or other place in the joint occupation or under the joint control of several persons, each of such persons in respect of whom there is reason to believe that he was aware of the existence of the arms or ammunition in the premises, vehicle or other place shall, unless the contrary is proved, be liable for that offence in the same manner as if it has been or is being committed by him alone.
Section 36. Information to be given regarding certain offences
(1) Every person aware of the commission of any offence under this Act shall, in the absence of reasonable excuse the burden of proving which shall lie upon such person, give information of the same to the officer in charge of the nearest police station or the magistrate having jurisdiction.
(2) Every person employed or working upon any railway, aircraft, vessel, vehicle or other means of conveyance shall, in the absence of reasonable excuse the burden of proving which shall, in the absence of reasonable excuse the burden of proving which shall lie upon such person, give information to the officer in charge of the nearest police station regarding any box, package or bale in transit which he may have reason to suspect contains arms or ammunition in respect of which an offence under this Act has been or is being committed.
Section 37. Arrest and searches- Save as otherwise provided in this Act,
(a) All arrests and searches made under this act or under any rules made there under shall be carried out in accordance with the provisions of the [ [Note: Subs. by Act 25 of 1983, s. 14, (w.e.f. 22-6-1983) ] Code of Criminal Procedure, 1973 (2 of 1974)], relating respectively to arrests and searches made under that Code;
(b) Any person arrested and any arms or ammunition seized under this Act by a person not being a magistrate or a police officer shall be delivered without delay to the officer in charge of the nearest police station and that officer shall-
(i) Either release that person on his executing a bond with or without sureties to appear before a magistrate and keep the things seized in the custody till the appearance of that person before the magistrate, or
(ii) Should that person fail to execute the bond and to furnish, if so required, sufficient sureties, produce that person and those things without delay before the magistrate.
Section 38. Offences to be cognizable
Every offence under this Act shall be cognizable within the meaning of the [ [ Note: Subs. by Act 25 of 1983, s. 14 (w.e.f. 22-6-1983) ] Code of Criminal Procedure, 1973 (2 of 1974)].
Section 39. Previous sanction of the district magistrate necessary in certain case
No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate.
Section 40. Protection of action taken in good faith
No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.
Section 41. Power to exempt
Where the Central Government is of the opinion that it is necessary or expedient in the public interest so to do, it may, by notification in he Official Gazette and subject to such conditions, if any, as it any specify in the notification,-
(a) [ Note: Subs. by Act 25 of 1983, s. 13 (w.e.f. 22-6-1983) ] [exempt any person or class of person (either generally or in relation to such description of arms and ammunition as may be specified in the notification)], or exclude any description of arms or ammunition, or withdraw any part of India, from the operation of all or any or the provisions of this Act; and
(b) As often as may be, cancel any such notification and again the subject, by a like notification, the person or class or persons or the description of arms and ammunition or the part of India to the operation of such provisions.
Section 42. Power to take census of fire-arms
(1) The Central Government may, by notification in the Official Gazette, direct a census to be taken of all firearms in any area and empower any officer of Government to take such census.
(2) On the issue of any such notification all persons having in their possession any firearms in that area shall furnish to the officer concerned such information as he may require in relation thereto and shall produce before him such firearms if he so requires.
Section 43. Power to delegate
(1) The Central Government may, by notification in the Official Gazette, direct that any power or function which may be exercised or performed by it under this Act other than the power under Section 41 or the power under section 44 may, in relation to such matters and subject to such conditions, if any, as it may specify in the notification, be exercised or performed also by –
(a) Such officer or authority subordinate to the Central Government, or
(b) Such State Government or such officer or authority subordinate to the State Government as may be specified in the notification.
(2) Any rules made by the Central Government under this Act may confer powers or impose duties or authorise the conferring of powers or imposition of duties upon any State Government or any officer or authority subordinate thereto.
Section 44. Power to make rules
(1) The Central government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-
(a) The appointment, jurisdiction, control and functions of licensing authorities 1 including the areas and the categories of arms and ammunition for which they may grant licences] ;
(b) The form and particulars of application for the grant or renewal of a licence and where the application is for the renewal of a licence, the time within which it shall be made ;
(c) The form in which and the conditions subject to which any licence may be granted or refused, renewed, varied, suspended or revoked ;
(d) Where no period has been specified in this Act, the period for which any licence shall continue to be in force ;
(e) The fees payable in respect of any application for the grant or renewal of a licence and in respect of any licence granted or renewed and the manner of paying the same ;
(f) The manner in which the maker’s name, the manufacturer’s number or other identification mark of a firearm shall be stamped or otherwise shown thereon ;
(g) The procedure for the test or proof of any firearms ;
(h) The firearms that may be used in the course of training, the age limits of persons who may use them and the conditions for their use by such persons ;
(i) The authority to whom appeals may be preferred under section 18, the procedure to be followed by such authority and the period within which appeals shall be preferred, the fees to be paid in respect of such appeals and the refund of such fees ;
(j) The maintenance of records or accounts of anything done under a licence other than a licence under section 3 or section 4, the form of, and the entries ot be made in, such records or accounts and the exhibition of such records or accounts to any police officer or to any officer of Government empowered in this behalf ;
(k) The entry and inspection by any police officer or by any officer of Government empowered in this behalf of any premises or other place in which arms or ammunition are or is manufactured or in which arms or ammunition are or is kept by a manufacturer of or dealer in such arms or ammunition and the exhibition of the same to such officer ;
(l) The conditions subject to which arms or ammunition may be deposited with a licensed dealer or in a unit armory as required by sub-section (1) of section 21 and the period on the expiry of which the things so deposited may be forfeited.
(m) Any other matter is to be, or may be, prescribed.
(3) Every rule made under this section shall be laid as soon as may be after it is made before each house of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in 2two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid] ; both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
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1. Ins. by Act 25 of 1983, sec. 16 (w.r.e.f. 22-6-1983).
2. Subs. by Act 25 of 1983, sec. 16, for certain words (w.r.e.f. 22-6-1983).
Section 45. Act not to apply in certain cases
Nothing in this Act shall apply to –
(a) Arms or ammunition on board any sea-going vessel or any aircraft and forming part of the ordinary armament or equipment of such vessel or aircraft ;
(b) The acquisition, possession or carrying, the manufacture, repair, conversion, test or proof, the sale or transfer or the import, export or transport of arms or ammunition –
(i) By or under orders of the Central Government, or
(ii) By a public servant in the course of his duty as such public servant, or
(iii) By a member of the National Cadet Corps raised and maintained under the National Cadet Corps Act, 1948 (31 of 1948), or by any officer, enrolled person of the Territorial Army raised and maintained under the Territorial Army Act, 1948 (56 of 1948) or by any member of any other forces raised and maintained or that may hereafter be raised and maintained under any Central Act, or by any member of such other forces as the Central Government may, by notification in the Official Gazette, specify, in the course of his duty as such member, officer or enrolled persons.
(c) Any weapon of an obsolete pattern or of antiquarian value or in disrepair which is not capable of being used as a firearm either with or without repair ;
(d) The acquisition, possession or carrying by a person of minor parts of arms or ammunition which are not intended to be used along with complementary parts acquired or possessed by that or any other person.
Section 46. Repeal of Act 11 of 1878.
(1) The Indian Arms Act, 1878, is hereby repealed.
(2) Notwithstanding the repeal of the Indian Arms Act, 1878 (11 of 1878), and without prejudice to the provisions of sections 6 and 24 of the General Clauses Act, 1897 (10 of 1897), every licence granted or renewed under the first mentioned Act and in force immediately before the commencement of this Act shall, unless sooner revoked, continue in force after such commencement for the unexpired portion of the period for which it has been granted or renewed.
November 30, 2014
Section 1. SHORT TITLE, EXTENT, APPLICATION AND COMMENCEMENT.
(1) This Act may be called the Payment of Gratuity Act, 1972.
(2) It extends to the whole of India: Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir.
(3) It shall apply to -
(a) every factory, mine, oilfield, plantation, port and railway company;
(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;
(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.
(3A) A shop or establishment to which this Act has become applicable shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below ten.
(4) It shall come into force on such date as the Central Government may, by notification, appoint.
Section 2. DEFINITIONS.
In this Act, unless the context otherwise requires, -
(a) “appropriate Government” means, -
(i) in relation to an establishment -
(a) belonging to, or under the control of, the Central Government,
(b) having branches in more than one State,
(c) of a factory belonging to, or under the control of, the Central Government,
(d) of a major port, mine, oilfield or railway company, the Central Government, (ii) in any other case, the State Government;
(b) “completed year of service” means continuous service for one year;
(c) “continuous service” means continuous service as defined in section 2A;
(d) “controlling authority” means an authority appointed by the appropriate Government under section 3;
(e) “employee” means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.
Explanation : (f) “employer” means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop -
(i) belonging to, or under the control of, the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned,
(ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the chief executive office of the local authority,
(iii) in any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person;
(g) “factory” has the meaning assigned to it in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);
(h) “family”, in relation to an employee, shall be deemed to consist of -
(i) in the case of a male employee, himself, his wife, his children, whether married or unmarried, his dependent parents and the dependent parents of his wife and the widow and children of his predeceased son, if any,
(ii) in the case of a female employee, herself, her husband, her children, whether married or unmarried, her dependent parents and the dependent parents of her husband and the widow and children of her predeceased son, if any :
Explanation : Where the personal law of an employee permits the adoption by him of a child, any child lawfully adopted by him shall be deemed to be included in his family, and where a child of an employee has been adopted by another person and such adoption is, under the personal law of the person making such adoption, lawful, such child shall be deemed to be excluded from the family of the employee;
(i) “major port” has the meaning assigned to it in clause (8) of section 3 of the Indian Ports Act, 1908 (15 of 1908);
(j) “mine” has the meaning assigned to it in clause (j) of sub-section (1) of section 2 of the Mines Act, 1952 (35 of 1952);
(k) “notification” means a notification published in the Official Gazette;
(l) “oilfield” has the meaning assigned to it in clause (e) of section 3 of the Oilfields (Regulation and Development) Act, 1948 (53 of 1948);
(m) “plantation” has the meaning assigned to it in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951);
(n) “port” has the meaning assigned to it in clause (4) of section 3 of the Indian Ports Act, 1908 (15 of 1908);
(o) “prescribed” means prescribed by rules made under this Act;
(p) “railway company” has the meaning assigned to it in clause (5) of section 3 of the Indian Railways Act, 1890 (9 of 1890);
(q) “retirement” means termination of the service of an employee otherwise than on superannuation;
(r) “superannuation”, in relation to an employee, means the attainment by the employee of such age as is fixed in the contract or conditions of service at the age on the attainment of which the employee shall vacate the employment;
(s) “wages” means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance.
Section 2 A. CONTINUOUS SERVICE.
For the purposes of this Act, – (1) an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing order, rules or regulations governing the employees of the establishment), lay off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act.
(2) where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer -
(a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than – (i) one hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and (ii) two hundred and forty days, in any other case;
(b) for the said period of six months, if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than -
(i) ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) one hundred and twenty days, in any other case;
Explanation : For the purpose of clause (2), the number of days on which an employee has actually worked under an employer shall include the days on which -
(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Order’s) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicable to the establishment;
(ii) he has been on leave with full wages, earned in the previous year;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.
(3) where an employee employed in a seasonal establishment, is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer for such period if he has actually worked for not less than seventy-five per cent of the number of days on which the establishment was in operation during such period.
Section 3. CONTROLLING AUTHORITY.
The appropriate Government may, by notification, appoint any officer to be a controlling authority, who shall be responsible for the administration of this Act and different controlling authorities may be appointed for different areas.
Section 4. PAYMENT OF GRATUITY.
(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, – (a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease : Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement :
Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.
Explanation : For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement.
(2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days’ wages based on the rate of wages last drawn by the employee concerned : Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account :
Provided further that in the case of an employee who is employed in a seasonal establishment and who is not so employed throughout the year, the employer shall pay the gratuity at the rate of seven days’ wages for each season.
Explanation : In the case of a monthly rated employee, the fifteen days’ wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen.
(3) The amount of gratuity payable to an employee shall not exceed three lakhs and fifty thousand rupees.
(4) For the purpose of computing the gratuity payable to an employee who is employed, after his disablement, on reduced wages, his wages for the period preceding his disablement shall be taken to be the wages received by him during that period, and his wages for the period subsequent to his disablement shall be taken to be the wages as so reduced.
(5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.
(6) Notwithstanding anything contained in sub-section (1), -
(a) the gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused.
(b) the gratuity payable to an employee may be wholly or partially forfeited -
(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.
Section 4 A. COMPULSORY INSURANCE.
(1) With effect from such date as may be notified by the appropriate Government in this behalf, every employer, other than an employer or an establishment belonging to, or under the control of, the Central Government or a State Government, shall, subject to the provisions of sub-section (2), obtain an insurance in the manner prescribed, for his liability for payment towards the gratuity under this Act, from the Life Insurance Corporation of India established under the Life Insurance Corporation of India Act, 1956 (31 of 1956) or any other prescribed insurer : Provided that different dates may be appointed for different establishments or class of establishments or for different areas.
(2) The appropriate Government may, subject to such conditions as may be prescribed, exempt every employer who had already established an approved gratuity fund in respect of his employees and who desires to continue such arrangement, and every employer employing five hundred or more persons who establishes an approved gratuity fund in the manner prescribed from the provisions of sub-section (1).
(3) For the purpose of effectively implementing the provisions of this section, every employer shall within such time as may be prescribed get his establishment registered with the controlling authority in the prescribed manner and no employer shall be registered under the provisions of this section unless he has taken an insurance referred to in sub-section (1) or has established an approved gratuity fund referred to in sub-section (2).
(4) The appropriate Government may, by notification, make rules to give effect to the provisions of this section and such rules may provide for the composition of the Board of Trustees of the approved gratuity fund and for the recovery by the controlling authority of the amount of the gratuity payable to an employee from the Life Insurance Corporation of India or any other insurer with whom an insurance has been taken under sub-section (1), or as the case may be, the Board of Trustees of the approved gratuity fund.
(5) Where an employer fails to make any payment by way of premium to the insurance referred to in sub-section (1) or by way of contribution to an approved gratuity fund referred to in sub-section (2), he shall be liable to pay the amount of gratuity due under this Act (including interest, if any, for delayed payments) forthwith to the controlling authority.
(6) Whoever contravenes the provisions of sub-section (5) shall be punishable with fine which may extend to ten thousand rupees and in the case of a continuing offence with a further fine which may extend to one thousand rupees for each day during which the offence continues.
Explanation : In this section “approved gratuity fund” shall have the same meaning as in clause (5) of section 2 of the Income-tax Act, 1961 (43 of 1961).
Section 5. POWER TO EXEMPT.
(1) The appropriate Government may, by notification, and subject to such conditions as may be specified in the notification, exempt any establishment, factory, mine, oilfield, plantation, port, railway company or shop to which this Act applies from the operation of the provisions of this Act if, in the opinion of the appropriate Government, the employees in such establishment, factory, mine, oilfield, plantation, port, railway company or shop are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.
(2) The appropriate Government may, by notification and subject to such conditions as may be specified in the notification, exempt any employee or class of employees employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop to which this Act applies from the operation of the provisions of this Act, if, in the opinion of the appropriate Government, such employee or class of employees are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.
(3) A notification issued under sub-section (1) or sub-section (2) may be issued retrospectively a date not earlier than the date of commencement of this Act, but no such notification shall be issued so as to prejudicially affect the interests of any person.
Section 6. NOMINATION.
(1) Each employee, who has completed one year of service, shall make, within such time, in such form and in such manner, as may be prescribed, nomination for the purpose of the second proviso to sub-section (1) of section 4.
(2) An employee may in his nomination, distribute the amount of gratuity payable to him, under this Act amongst more than one nominee.
(3) If an employee has a family at the time of making a nomination, the nomination shall be made in favour of one or more members of his family, and any nomination made by such employee in favour of a person who is not a member of his family, shall be void.
(4) If at the time of making a nomination the employee has no family, the nomination may be made in favour of any person or persons but if the employee subsequently acquires a family, such nomination shall forthwith become invalid and the employee shall make, within such time as may be prescribed, a fresh nomination in favour of one or more members of his family.
(5) A nomination may, subject to the provisions of sub-sections (3) and (4), be modified by an employee at any time, after giving to his employer a written notice in such form and in such manner as may be prescribed, of his intention to do so.
(6) If a nominee predeceases the employee, the interest of the nominee shall revert to the employee who shall make a fresh nomination, in the prescribed form, in respect of such interest.
(7) Every nomination, fresh nomination or alteration of nomination, as the case may be, shall be sent by the employee to his employer, who shall keep the same in his safe custody.
Section 7. DETERMINATION OF THE AMOUNT OF GRATUITY.
(1) A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.
(2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined.
(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.
(3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify : Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.
(4) (a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity.
(b) Where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute.
(c) The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer.
(d) The controlling authority shall pay the amount deposited, including the excess amount, if any, deposited by the employer, to the person entitled thereto.
(e) As soon as may be after a deposit is made under clause (a), the controlling authority shall pay the amount of the deposit -
(i) to the applicant where he is the employee; or
(ii) where the applicant is not the employee, to the nominee or, as the case may be, the guardian of such nominee or heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity.
(5) For the purpose of conducting an inquiry under sub-section (4), the controlling authority shall have the same powers as are vested in a court, while trying a suit, under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely :-
(a) enforcing the attendance of any person or examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses.
(6) Any inquiry under this section shall be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code, 1860 (45 of 1860).
(7) Any person aggrieved by an order under sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf : Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days.
Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under sub-section (4), or deposits with the appellate authority such amount.
(8) The appropriate Government or the appellate authority, as the case may be, may, after giving the parties to the appeal a reasonable opportunity of being heard, confirm, modify or reverse the decision of the controlling authority.
Section 7 A. INSPECTORS.
(1) The appropriate Government may, by notification, appoint as many Inspectors, as it deems fit, for the purposes of this Act.
(2) The appropriate Government may, by general or special order, define the area to which the authority of an Inspector so appointed shall extend and where two or more Inspectors are appointed for the same area, also provide, by such order, for the distribution or allocation of work to be performed by them under this Act.
(3) Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).
Section 7 B. POWERS OF INSPECTORS.
(1) Subject to any rules made by the appropriate Government in this behalf, an Inspector may, for the purpose of ascertaining whether any of the provisions of this Act or the conditions, if any, of any exemption granted thereunder, have been complied with, exercise all or any of the following powers, namely :-
(a) require an employer to furnish such information as he may consider necessary;
(b) enter and inspect, at all reasonable hours, with such assistants (if any),
being persons in the service of the Government or local or any public authority, as he thinks fit, any premises of or place in any factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, for the purpose of examining any register, record or notice or other document required to be kept or exhibited under this Act or the rules made thereunder, or otherwise kept or exhibited in relation to the employment of any person or the payment of gratuity to the employees, and require the production thereof for inspection;
(c) examine with respect to any matter relevant to any of the purposes aforesaid, the employer or any person whom he finds in such premises or place and who, he has reasonable cause to believe, is an employee employed therein;
(d) make copies of, or take extracts from, any register, record, notice or other document, as he may consider relevant, and where he has reason to believe that any offence under this Act has been committed by an employer, search and seize with such assistance as he may think fit, such register, record, notice or other document as he may consider relevant in respect of that offence;
(e) exercise such other powers as may be prescribed.
(2) Any person required to produce any register, record, notice or other document or to give any information by an Inspector under sub-section (1) shall be deemed to be legally bound to do so within the meaning of sections 175 and 176 of the Indian Penal Code 1860 (45 of 1860).
(3) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall so far as may be, apply to any search or seizure under this section as they apply to any search or seizure made under the authority of a warrant issued under section 94 of that Code.
Section 8. RECOVERY OF GRATUITY.
If the amount of gratuity payable under this Act is not paid by the employer, within the prescribed time, to the person entitled thereto, the controlling authority shall, on an application made to it in this behalf by the aggrieved person, issue a certificate for that amount to the Collector, who shall recover the same, together with compound interest thereon at such rate as the Central Government may, by notification, specify, from the date of expiry of the prescribed time, as arrears of land revenue and pay the same to the person entitled thereto :
Provided that the controlling authority shall, before issuing a certificate under this section, give the employer a reasonable opportunity of showing cause against the issue of such certificate :
Provided further that the amount of interest payable under this section shall, in no case exceed the amount of gratuity payable under this Act.
Section 9. PENALTIES.
(1) Whoever, for the purpose of avoiding any payment to be made by himself under this Act or of enabling any other person to avoid such payment, knowingly makes or causes to be made any false statement or false representation shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.
(2) An employer who contravenes, or makes default in complying with, any of the provisions of this Act or any rule or order made thereunder shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year, or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees, or with both :
Provided that where the offence relates to non-payment of any gratuity payable under this Act, the employer shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years unless the court trying the offence, for reasons to be recorded by it in writing, is of opinion that a lesser term of imprisonment or the imposition of a fine would meet the ends of justice.
Section 10. EXEMPTION OF EMPLOYER FROM LIABILITY IN CERTAIN CASES.
Where an employer is charged with an offence punishable under this Act, he shall be entitled, upon complaint duly made by him and on giving to the complainant not less than three clear days’ notice in writing of his intention to do so, to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved, the employer proves to the satisfaction of the court – (a) that he has used due diligence to enforce the execution of this Act, and
(b) that the said other person committed the offence in question without his knowledge, consent or connivance, that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the employer and the employer shall be discharged from any liability under this Act in respect of such offence :
Provided that in seeking to prove as aforesaid, the employer may be examined on oath and his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges as the actual offender and by the prosecutor :
Provided further that, if the person charged as the actual offender by the employer cannot be brought before the court at the time appointed for hearing the charge, the court shall adjourn the hearing from time to time for a period not exceeding three months and if by the end of the said period the person charged as the actual offender cannot still be brought before the court, the court shall proceed to hear the charge against the employer and shall, if the offence be proved, convict the employer.
Section 11. COGNIZANCE OF OFFENCES.
(1) No court shall take cognizance of any offence punishable under this Act save on a complaint made by or under the authority of the appropriate Government : Provided that where the amount of gratuity has not been paid, or recovered, within six months from the expiry of the prescribed time, the appropriate Government shall authorise the controlling authority to make a complaint against the employer, whereupon the controlling authority shall, within fifteen days from the date of such authorisation, make such complaint to a Magistrate having jurisdiction to try the offence.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
Section 12. PROTECTION OF ACTION TAKEN IN GOOD FAITH.
No suit or other legal proceeding shall lie against the controlling authority or any other person in respect of anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder.
Section 13. PROTECTION OF GRATUITY.
No gratuity payable under this Act and no gratuity payable to an employee employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop exempted under section 5 shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal court.
Section 14. ACT TO OVERRIDE OTHER ENACTMENTS, ETC.
The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.
Section 15. POWER TO MAKE RULES.
(1) The appropriate Government may, by notification make rules for the purpose of carrying out the provisions of this Act. (2) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall, thereafter, have effect only in such modified form or be of no effect as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
November 30, 2014
Chapter I – Preliminary
Section 1. Short title and commencement.
This Act may be called the Indian Trusts Act, 1882, and it shall come into force on the first day of March, 1882.
Local extent, savings. -It extends to the whole of India 1[except the State of Jammu and Kashmir and the Andaman and Nicobar Islands] but the Central Government may, form time to time, by notification in the Official Gazette, extend it to the Andaman and Nicobar Islands or to any part thereof. But nothing herein contained affects the rules of Mohammdan law as to Waqf or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors; and nothing in the Second Chapter of this Act applies to trusts created before the said day.
1. Subs by Act No.3 of 1951, for “except part B states”.
Section 2. Repeal of enactments.
The Statute and Acts mentioned in the Schedule hereto annexed shall, to the extent mentioned in the said Schedule, be repealed in the territories to which this Act for the time being extends.
Section 3. Interpreation-clause.Trust.
A “trust” is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner;
The person who reposes or declares the confidence is called the “author of the trust”; the person who accepts the confidence is called the “trustee”; the person for whose benefit the confidence is accepted is called the “beneficiary”; the subject-matter of the trust is called “trust-property” or “trust-money”; the “beneficial interest” or “interest” of the beneficiary is his right against the trustee as owner of the trust-property; and the instrument, if any, by which the trust is declared is called the “instrument of trust”;
A breach of any duty imposed on a trustee, as such, by any law for the time being in force is called a “breach of trust”;
And in this Act, unless there be something repugnant in the subject or context, registered” means registered under the law for the registration of documents for the time being in force; a person is said to have notice” of a fact either when he actually knows that fact, or when, but for wilful abstention from inquiry or gross negligence, lie would have known it, or when information of the fact is given to or obtained by his agent, under the circumstances mentioned in the Indian Contract Act, 1872, Section 229; and all expressions used herein and defined in the Indian Contract Act, 1872, shall be deemed to have the meanings respectively attributed to them by that Act.
Chapter II – OF THE CREATION OF TRUSTS
Section 4. Lawful purpose.
A trust may be created for any lawful purpose. The purpose of trust is lawful unless it is (a) forbidden by law, or (b) is of such a nature that, if permitted, it would defeat the provisions of any law, or (c) is fraudulent, or (d) involves or implies injury to the person or property of another, or (e) the Court regards it as immoral or opposed to public policy. Every trust of which the purpose is unlawful is void. In addition, where a. trust is created for two purposes, of which one is lawful and the other unlawful, and the two purposes cannot be separated, the whole trust is void.
Explanation
In this section, the expression “law” includes, where the trust-property is immoveable and situate in a foreign country, the law of such country.
Illustrations
(a) A conveys property to B in trust to apply the profits to tile nurture of female fondings to be trained up as prostitutes. The trust is void.
(b) A bequeaths property to B, in trust to employ it in carrying on a smuggling business, and out of the profits thereof to support A’s children. The trust is void:
(c) A, while in insolvent circumstances transfers’ property to B in trust for A during his life, and after his death for B. A is declared an insolvent. The trust for A is invalid as against his creditors.
Section 5. Trust of immovable property.
No trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.
Trust of movable property. -No trust in relation to movable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee.
These rules do not apply where they would operate to make a fraud.
Section 6. Creation of trust.
Subject to the provisions of Section 5, a trust is created when the author of the, trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee.
Illustrations
(a) A bequeaths certain property to B, “having the fullest confidence that he will dispose of it for the benefit of’ C. This creates a trust so far as regards A and C.
(b) A bequeaths certain property to B “hoping he will continue it in the family”. This does not create a trust, as the beneficiary is not indicated with reasonable certainty.
(c) A bequeaths certain property to B, requesting him to distribute it among such members of C s family as B should think most deserving. This does not create a trust, for the beneficiaries are not indicated with reasonable certainty.
(d) A bequeaths certain property to B, desiring him to divide the bulk of it among among C’s children. This does not create a trust, for the trust-property is not indicated with sufficient certainty.
(e) A bequeaths a shop and stock-in-trade to B, on condition that he pays A’s debts and a legacy to C. This is a condition, not a trust for A’s creditors and C.
Section 7. Who may create trusts.
A trust may be created-
(a) By every person competent to contract, and
(b) With the permission of a principal Civil Court of original jurisdiction, by or on behalf of a minor;
But subject in each case to the law for the time being in force as to the circumstances and extent in and to which the author of the trust may dispose of the trust-property.
Section 8. Subject of trust.
The subject matter of a trust must be property transferable to the beneficiary.
It must not be merely beneficial interest under a subsisting trust.
Section 9. Who may be beneficiary.
Every Person capable of holding property may he a beneficiary.
Disclaimer by beneficiary. -A proposed beneficiary may renounce his interest under the trust by disclaimer addressed to the trustee, or by setting up, with notice of the trust, a claim inconsistent therewith.
Section 10. Who may be trustee.
Every Person capable of holding property may be a trustee; but, where the trust involves the exercise of discretion, he cannot execute it unless he is competent to contract.
No one bound to accept trust. -No one is bound to accept a trust.
Acceptance of trust. -A trust is accepted by ally words or acts of the trustee indicating with reasonable certainly such acceptance.
Disclaimer of trust. -Instead of accepting a trust, the intended trustee may, within a reasonable period, disclaim it and such disclaimer shall prevent the trust-property from vesting in him.
A disclaimer by one of two or others, and makes him or them sole trustee or trustees from the date of the creation of the trust.
Illustration
(a) A bequeaths certain property to B and C, his executors, as trustees for D, B and C prove A’s will. Ibis is in itself an acceptance of the trust, B and C hold the property in trust for D.
(b) A transfers certain Property to B in trust to sell it and to pay out of the Proceeds A’s debts. B accepts the trust and sells the property. So far as regards B, a trust of the proceeds is created for A’s creditors.
(c) A bequeaths a lakh of rupees to B upon certain trusts and appoints him his executor. B severs the lakh from the general assets and appropriates it to the specific purpose. This is an acceptance of the trust.
Chapter III – OF THE DUTIES AND LIABILITIES OF TRUSTEES
Section 11. Trustee to execute trust.
The trustee is bound to fulfil the purpose of the turst, and to obey the directions of the author of the given at the time of its creation, except as modified by the consent of all the beneficiaries being competent to contract.
Where the beneficiary is incompetent to contract, his consent may, for the purposes of this section, begen by a principal Civil Court of original jurisdiction. Nothing in this section shall be deemed to require a trustee to obey any direction when to do so would be impracticable, illegal or maifastly injurious to the beneficiaries.
Explanation-Unless a contrary intention be expressed, the purpose of a trust for the payment of debts shall be deemed to be (a) to pay only the debts of the author of the trust existing and recoverable at the date of the instrument of trust, or, when such instrument is a will, at the date of his death, and (b) in the case of debts not bearing interest, to make such payment without interest.
Illustration
(a) A, a trustee, is simply authorized to sell certain land by Public auction. He cannot sell the land by private contract. (b) A, a trustee of certain land for X, Y and Z, is authorized to sell the land to B for a specified sum. X, Y and Z, being competent to contract, consent that A may sell the land to C for a less sum. A may sell the land accordingly.
(c) A, a trustee for B and her children, is directed by the author of the trust to lend, on B’s request, trust property to B’s husband, C, on the security of his bond. C becomes insolvent and B requests A to make the loan. A may refuse to make it.
Section 12. Trustee to inform himself of state of trust-property.
A trustee is bound to acquaint himself, as soon as possible, with the nature and circumstances of the trust property; to obtain, where necessary, a transfer of the trust-property to himself; and subject to the provisions of the instrument of trust) to get in trust-moneys invested oil insufficient or hazardous security.
Illustrations
(a) The trust-property is a debt outstanding on personal security. The instrument of trust gives the trustee no discretionary power to leave the debt so outstanding. The trustee’s duty is to recover the debt without unneccessary delay.
(b) The trust-property is money in the hands of one of two co-trustees. No discretionary power is given by the instrument of trust. The other co-trustee must not allow the former to retain the money for a longer period than the circumstances of the case required.
Section 13. Trustee to protect title to trust-property.
A trustee is bound to maintain and defend all such suits, and (subject to the provisions of the instrument of trust) to take such other steps as, regard being had to the nature and amount or value of the trust-property, may be reasonably requisite for the preservation of the trust-property and the assertion or protection of the tide thereto.
Illustration
The trust-property is immovable property which has been I given to the author of the trust by an unregistered instrument. Subject to the provisions of the 1[Indian Registration Act, 1877] the trustee’s duty is to cause the instrument to be registered.
1. See now the Indian Registration Act, 1908.
Section 14. Trustee not to set up title adverse to beneficiary.
The trustee must not for himself or another set up or aids any title to the trust-property adverse to the interest of the beneficiary.
Section 15. Care required from trustee.
A truste is bound to deal with the trust-property as carefully as a man of ordinary prudence would deal with such property if it were his own; and, in the absence of a contract to the contrary, a trustee so dealing is not responsible-for the loss, destruction or deterioration of the trust-property.
Illustrations
(a) A, living in Calcutta, is a trustee for B, living in Bombay. A remits trust-funds to B by bills drawn by a person of undoubted credit in favour of die trustee as such, and payable at Bombay. The bills are dishonoured. A is not bound to make good the loss.
(b) A, a trustee of leasehold property, directs the tenant to pay the rents on account of the trust to a banker B, then in credit. The rents are accordingly paid to B, and A leaves the money with B, and A leaves the money with B, only till wanted. Before the money is drawn out. B becomes insolvent. A, having had not reason to believe that B was in insolvent circumstances, is not bound to make good the loss.
(c) A, a trustee of two debts for B, releases one and compounds the other, in good faith and reasonably believing that it is for B’s interest to do so. A is not bound to make good any loss caused thereby to B.
(d) A, a trustee directed to sell the trust-property by auction, sells the same but does not advertise the sale and otherwise fail in reasonable dilligence in inviting competition. A is bound to make good the loss caused thereby to the beneficiary.
(e) A, a trustee for B, in execution of his trust, sells the trust-property, but for want of the due diligence on his part fails to receive part of the purchase-money. A is bound to make good the loss thereby caused to B.
(f) A, a trustee for B of a policy of insurance, has funds in hand for payment of the premiums. A neglects to pay the premiums, and the policy is consequently forfeiled. A is bound to make good the loss to B.
(g) A bequeaths certain moneys to B and C as trustees, and authorizes them to continue trust-moneys upon the personal security of a certain firm in which A had himself invested them. A dies, and a change takes place in the firm. B and C must not permit the moneys to remain upon tile personal security of tile new firm.
(h) A, a trustee for B, allows tile trust to be executed soley by his co-trustee, C. C misapplies the trust-property. A is personally answerable to the loss resulting to B.
Section 16. Conversion of perishable property.
Where the trust is created for the benefit of several persons in succession, and the trust-property is of a wasting nature or a future or reversionary interest, the trustee is bound unless all intention to the contrary may be inferred from the instrument of trust, to convert the property into property of a permanent and immediately profitable character. -
Illustration
(a) A bequeaths to B all his property in trust for C during his life, and on his death for D, and oil D’s death for E. A’s property consists of three leasehold houses and there is nothing in A’s will to show that he intended the houses to be enjoyed in specie. B should sell the houses, and invest the proceeds in accordance with Section 20.
(b) A bequeaths to B his three leasehold houses in Calcutta and all the furniture therein in trust for C during his life, and on his death for D, and on D’s death for E. Here anlintention that the houses and furniture should be enjoyed in specie appears clearly, and B should not sell them.
Section 17. Trustee to be impartial.
Where there ire more beneficiaries than one, die trustee is bound to be impartial, and trust not execute the trust for the advantage of one at the expense of another.
Where the trustee has a discretionary power, nothing in this section shall be deemed to authorize the Court to control the exercise reasonably and in good faith of such discretion.
Illustration
A, a trustee for B, C and D is empowered to choose between several specified anodes of investing the trust-property A in good faith chooses one of these modes. The Court will not interfere, although the result of tile choice may be to vary the relative rights of B. C and D.
Section 18. Trustee to prevent waste.
Where the trust is created for the benefit of several persons in succession and one of them is in possession of the trust-property, if he commits, or threatens to commit, any act, which is destructive, or permanently injurious thereto, the trustee is bound to take measures to prevent such act.
Section 19. Accounts and information.
A trustee is bound (a) to keep clear and accurate accounts of the trust-property, and (b) at all reasonable times, at the request of the beneficiary, to furnish him with fill and accurate information as to the amount and state of the trust-property.
Section 20. Investment of trust-money.
Where the trust-property consists of money and cannot by applied immediately or at all early date to the purposes of the trust, the trustee is bound (subject to any direction contained in the instrument of trust) to invest the money on the following securities, and on no others:
(a) In promissory notes, debentures, stock or other securities of any State Government or of the Central Government or of the United Kingdom of Great Britain and Ireland:
Provided that securities, both the principal whereof and the interest whereon shall have been fully and unconditionally guaranteed by any such Government shall be deemed, for the purposes of this clause, to be securities of such Government.
(b) In bonds, debentures and annuities charged or secured by the Parliament of the United Kingdom before the fifteenth day of August, 1947 on the revenues of India or of the Governor General in Council or of any Province:
Provided that, after the fifteenth day of February, 1916, no money shall be invested in any such annuity being a terminable annuity unless a sinking fund has been established in connection with such annuity; but nothing in this proviso shall apply to investments made before the date aforesaid:
(bb) In India three and a half percent stock, India three per cent stock, India two and a half per cent stock or any other capital stock, which before the 15th day of August, 1947, was issued by the Secretary of State for India in Council under the authority of an Act of Parliament of the United Kingdom and charged on the revenues of India or which was issued by the Secretary of State on behalf of the Governor-General in Council under the provisions of Part XIII of the Government of India Act, 1935;
(c) In stock or debentures of, or shares in, Railway or other Companies the interest whereon shall have been guaranteed by the Secretary of State for India in Council or by the Central Government or in debentures of the Bombay Provincial Co-operative Bank Limited, the interest whereon shall have been guaranteed, by the Secretary of State for India in Council or the State Government of Bombay;
(d) In debentures or other securities for money issued under the authority of any Central Act or Provincial Act or State Act, by or on behalf of any municipal body, port trust or city improvement trust in any Presidency-town, or in Rangoon Town, or by or on behalf of the trustees of the port of Karachi:
Provided that after the 31st day of March, 1948, no money shall he invested in any securities issued by or on behalf of a municipal body, port trust or city improvement trust in Rangoon Town, or by or on behalf of the trustees of the port of Karachi;
(e) On a first mortgage of immovable property situate in any part of the territories to which this Act extends: provided that the property is not a leasehold for a term of years and that the value of the property exceeds by one-third, or, if consisting of buildings, exceeds by one-half, the mortgage money 1[* * * *] 2[(ee) in units issued by the Unit Trust of India under any unit scheme made under Section 21 of the Unit Trust of India Act, 1963; or]
(f) On any other security expressly authorized by the instrument of trust, [or by the Central Government by notification in the official gazette,] or by any rule which the High Court may from time to time prescribed in this behalf:
Provided that, where there is a person competent to contract and entitled in possession to receive the income of the trust-property for his life, or for any greater estate, no investment on any security mentioned or referred to in clauses (d), (e) and (f) shall be made without his consent in writing.
1. Certain words omitted by Act No. 16 of 1975.
2. Inserted by Act No. 16 of 1975.
Section 20-A. Power to purchase redeemable stock at a premium.
(1) A trustee may invest in any of the securities mentioned or referred to in Section 20, notwithstanding that -the same may be redeemable and that the price exceeds the redemption value:
Provided that a trustee may not purchase at a price exceeding its redemption value any security mentioned or referred to in clauses (c) and (d) of Section 20 which is liable to be redeemed within fifteen years of the date of purchase at par or at some other fixed rate, or purchase any such security as it mentioned or referred to in the said clause which is liable to be redeemed at par or at some other fixed rate at a price exceeding fifteen per centum above par or such other fixed rate.
(2) A trustee may retain until redemption any redeemable stock, fund or security which may have been purchased in accordance with this section.
Section 21. Mortgage of land pledged to Government under Act 26 of 1871.
Deposit in Government Savings Bank. -Nothing in Section 20 shall apply to investments made before this Act comes into force, or shall be deemed to preclude an investment on a mortgage of immovable property already pledged as security for an advance under the Land Improvement Act, 1871 or, in case the trust-money does not exceed three thousand rupees, a deposit thereof in a Government Savings Bank.
Section 22. Sale by trustee directed to sell within specified time.
Where a trustee directed to sell within a specified time extends such time, the burden of proving, as between himself and the beneficiary, that the latter is not prejudiced by the extension lies upon the trustee, unless the extension has been authorized by a, principal Civil Court of original jurisdiction.
Illustration
A bequeaths property to B, directing him with all convenient speed and within five years to sell it, and apply the proceeds for the benefit of C. In the exercise of reasonable discretion, B postpones the sale for six years. The sale is not thereby rendered invalid, but C, alleging that he has been injured by the postponement, institutes a suit against B to obtain compensation. In such suit the burden of proving that C has not been injured lies on B.
Section 23. Liability for breach of trust.
Where the trustee commits a breach of trust, he is liable to make good the loss which the trust-property or the beneficiary has thereby sustained, unless the beneficiary has by fraud induced the trustee to commit the breach, or the beneficiary, being competent to contract, has himself, without coercion or undue influence having been brought to bear to him, concurred in the breach, or subsequently acquiesced therein, with full knowledge of facts of the case and of his rights as against the trustee.
A trustee committing a breach of trust is not liable to pay interest except in the following cases:
(a) Where he has actually received interest;
(b) Where the breach consists in unreasonable delay in paying trust-money to the beneficiary;
(c) Where the trustee ought to have received interest, but has not done so;
(d) Where he may be fairly presumed to have received interest.
He is liable, in case (a), to account for the interest actually received, and, in cases (b), (c) and (d), to account for simple interest at the rate of six per cent per annum, unless the Court otherwise directs.
(e) Where the breach consists in failure to invest trust-money and to accumulate the interest or dividends thereon, he is liable to account for Compound interest (with half-yearly rests) at the same rate;
(f) Where the breach consists in the employment of trust- property or the proceeds thereof in trade or business, he is liable to account, at the option of the beneficiary, either for compound interest (with half-yearly rests) at the same rate, or for the net profits made by such employment.
Illustrations
(a) A trustee improperly leaves trust-property outstanding, and it is consequently lost: he is liable to make good the property lost, but he is not liable to pay interest thereon.
(b) A bequeaths a house to B in trust to sell it and pay the proceeds to C. B neglects to sell the house for a great length of time, whereby the house is deteriorated and its market price falls. B is answerable to C for the loss.
(c) A trustee is guilty of unreasonable delay in investing trust-money in accordance with Section 20, or in paying it to the beneficiary. The trustee is liable to pay interest thereon for the period of the delay.
(d) The duty of the trustee is to invest trust-money in any of the securities mentioned in Section 20, clause (a), (b), (c) or (d). Instead of so doing, he retains the money in his hands. He is liable, at the option of the beneficiary, to be charged either with the amount of the principal money and interest, or with the amount of such securities as lie might have purchased with the trust-money when the investment should have been made, and the intermediate dividends and interest thereon.
(e) The instrument of trust directs the trustee to invest trust-money either in any of such securities or on mortgage of immovable property. The trustee does neither. He is liable for the principal money and interest.
(f) The instrument of trust directs the trustee to invest trust-money in any of such.
Section 24. No set-off allowed to trustee.
A trustee who is liable for a loss occasioned by a breach of trust in respect of one portion of the trust property cannot set off against his liability again which has accrued to another portion of the trust-property through another and distinct breach of trust.
Section 25. Non-liability for predecessor’s default.
Where a trustee succeeds another, he is not, as such, liable for the acts or defaults of his predecessor.
Section 26. Non-liability for co-trustee’s default.
Subject to the provisions of Section 13, and 15, one trustee is not, as such, liable for a breach of trust committed by his co-trustee;
Provided that, in the absence of an express declaration to the contrary in the instrument of trust, a trustee is so liable -
(a) Where he has delivered trust-property to his co-trustee without seeing to its proper application;
(b) Where he allows his co-trustee to receive trust-property and fails to make due inquiry as to the co-trustee’s dealings therewith, or allows him to retain it longer then the circumstances of the case reasonably require;
(c) Where he becomes aware of a breach of trust committed or intended by his co-trustee, and either actively conceals it or does not within a reasonable time take proper steps to protect the beneficiary’s interest.
Joining in receipt for conformity – A co-trustee who joins in signing a receipt for trust-property and proves that he has not received the same is not answerable, by reason of such signature only, for loss or misapplication of the property by his co-trustee.
Illustration
A bequeaths certain property to B and C, and directs them to sell it and invest the proceeds for the benefit of D.B. and C accordingly sell the property, and the purchase money is received by B and retained in his hands. C pays no attention to the matter for two years and then calls on B to make the investment. B is unable to do so, becomes insolvent, and the purchase-money is lost. C may be compelled to make good the amount.
Section 27. Several liabilities of co-trustees.
Where Co-trustees jointly commit a breach of trust, or where one of them by his neglect enables the other to commit a breach of trust, each is liable to the beneficiary for the whole of the loss -occasioned by such breach.
Contribution as between co trustees. -But as between the trustees themselves, if one be less guilty than another and has had to refund the loss, the former may compel the latter, or his legal representative to the extent of the assets he has received, to make good such loss; and if all be equally guilty, any one or more of the trustees who has had to refund the loss may compel the others to contribute.
Nothing in this section shall be deemed to authorize a trustee who has been guilty of fraud to institute a suit to compel contribution.
Section 28. Non-liability of trustee paying without notice of transfer by beneficiary.
When any beneficiary’s interest becomes vested in another person, and the trustee, not having notice of the vesting, pays or delivers trust-property to the person who would have been entitled thereto in the absence of such vesting, the trustee is not liable for the property so paid or delivered.
Section 29. Liability of trustee where beneficiary’s interest is forfeited to the Government.
When the beneficiary’s interest is forfeited or awarded by legal adjudication to the Government, the trustee is bound to hold the trust-property to the extent of such interest for the benefit of such person in such manner as the State Government may direct in this behalf.
Section 30. Indemnity of trustees.
Subject to the provisions of the instrument of trust and of Sections 23 and 26, trustees shall be respectively chargeable only for such moneys, stocks, funds and securities as they respectively actually receive, and shall not be answerable the one for the other of them, nor for any banker or other person in whose hands any trust-property may be placed, nor for the insufficiency or deficiency of ally stocks, funds or securities, nor otherwise for involuntary losses.
Chapter IV – OF THE RIGHTS AND POWERS OF TRUSTEES
Section 31.Right to title deed.
Right to title deedA trustee is entitled to have in his possession the instrument of trust and all the documents of title (if any) relating solely to the trust-property.
Section 32. Right to reimbursement of expenses.
Every trustee may reimburse himself, or pay or discharge out of the trust-property, all expenses properly incurred in or about the execution of the trust, or the realization, preservation or benefit of the trust-property, or the protection or support of the beneficiary.
If he pays such expenses out of his own pocket he has a first charge upon the trust-property for such expenses and interest thereon; but such charge (unless the expenses have been incurred with the sanction of a principal Civil Court of original Jurisdiction) shall be enforced only by prohibiting any disposition of the trust-property without previous payment of such expenses and interest.
If the trust-property fail, the trustee is entitled to recover from the beneficiary personally on whose behalf he acted, and at whose request, expressed or implied, he made the payment, the amount of such expenses.
Right to be recouped for erroneous over-payment. -Where a trustee has by mistake made an over-payment to the beneficiary, he may reimburse the trust-property out of the beneficiary’s interest. If such interest fails, the trustee is entitled to recover from the beneficiary personally the amount of such over-payment.
Section 33. Right to indemnity from gainer by breach of trust.
A person other than a trustee who has gained an advantage from a breach of trust must indemnify the trustee to the extent of the amount actually received by such person under the breach; and where he is a beneficiary the trustee has a charge on his interest for such amount.
Nothing in this section shall be deemed to entitle a trustee to be indemnified who has in committing the breach of trust, been guilty of fraud.
Section 34. Right to apply to Court for opinion in management of trust-property.
Any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust-property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal.
A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit.
The trustee stating in good faith the facts in such petition and acting upon the opinion, advice or direction given by the Court shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee in the subject matter of the application.
The costs of every application under this section shall be in the discretion of the Court to which it is made.
Section 35. Right to settlement of accounts.
When the duties of a trustee, as such, are completed, he is entitled to have the accounts of his administration of the trust-property examined and settled; and, where nothing is due to the beneficiary under the trust, to an acknowledgement in writing to that effect.
Section 36. General authority of trustee.
In addition to the powers expressly conferred by this Act and by the instrument of trust, and subject to the restrictions, if any, contained in such instrument, an to the provisions of Section 17, a trustee may do all acts which are reasonable and proper for the realization, protection or benefit of the trust-property, and for the protection or support of a beneficiary who is not competent to contract.
Except with the permission of a principal Civil Court of original jurisdiction, no trustee shall lease trust-property for a term exceeding twenty-one years from the date of executing the lease, nor without reserving the best yearly rent that can be reasonably obtained.
Section 37. Power to sell in lots, an either by public auction or private contract.
Where the trustee is empowered to sell any trust-property, he may sell the same subject to prior charges or not, and either together or in losts, by public auction or private contract, and either at one time or at several times, unless the instrument of trust otherwise directs.
Section 38. Power to sell under special conditions.
Power to buy in and resell. -The trustee making any such sale may insert such reasonable stipulations either as to title or evidence of title, or otherwise, in any conditions of sale or contract for sale, as he thinks fit; and may also buy-in the property or any part thereof at any sale by auction, and rescind or vary any contract for sale, and resell the property so bought in, or as to which the contract is so rescinded, without being responsible to the beneficiary for any loss occasioned thereby. –
Time allowed for selling trust-property. -Where a trustee is directed to sell trust property or to invest trust-money in the purchase of property, he may exercise a reasonable discretion as to the time of effecting the sale or purchase
Illustration
(a) A bequeaths property to B, directing him to sell it with all convenient speed and pay the proceeds to C. This does not tender an immediate sale imperative.
(b) A bequeaths property to B, directing him to sell it at such time and in such manner as he shall think fit and invest the proceeds for the benefit of C. This does not authorize B, as between him and C, to postpone the sale to an indefinite period.
Section 39. Power to convey.
For the purpose of completing any such sale, the trustee shall have power to convey or otherwise dispose of the property sold in such manner as may be necessary.
Section 40. Power to vary investments.
A trustee may, at his discretion, call in any trust property invested in any security and invest the same on any of the securities mentioned or referred to in Section 20, and from time to time vary any such investments for others of the same nature: Provided that, where there is a person competent to contract and entitled at the time to receive the income of the trust-property for his life, or for any greater estate, no such change of investment shall be made without his consent in writing.
Section 41. Power to apply property of minors, etc., for their maintenance, etc.
Where any property is held by a trustee in trust for a minor, such trustee may, at his discretion, hay to the guardians (if any) of such minor, or otherwise apply for or towards his maintenance or education or advancement in life, or the reasonable expenses of his religious worship, marriage or funeral, the whole or any part of the income to which he may be entitled in respect of such property; and such trustee shall accumulate all the residue of such income by way of compound interest by investing the same and the resulting income thereof from time to time in any of the securities mentioned or referred to in Section 20, for the benefit of the person who shall ultimately become entitled to the property from which such accumulations have arisen:
Provided that such trustee may, at any time, if he thinks fit, apply the whole or any part of such accumulations as if the same were part of the income arising in the then current year. Where the income of the trust-property is insufficient for the minor’s maintenance or education or advancement in life, or the reasonable expenses of his religious worship, marriage or funeral, the trustee may, with the permission of a principal Civil Court of original jurisdiction, but not otherwise, apply the whole or any part of such property for or towards such maintenance, education, advancement or expenses.
Nothing in this section shall be deemed to affect the provisions of any local law for the time being in force relating to the persons and property minors.
Section 42. Power to give receipts.
Any trustee or trustees may give a receipt in writing for any money, securities or other movable property payable, transferable or deliverable to them or him by reason, or in exercise, of any trust or power; and, in the absence of fraud, such receipt shall discharge the person paying, transferring or delivering, the same therefrom, and from seeing to the application thereof, or being accountable for any loss or misapplication thereof.
Section 43. Power to compound, etc.
Two or more trustees acting together may, if and as they think fit, -
(a) Accept any composition or any security for any debt or for any property claimed;
(b) Allow any time for payment of any debt;
(c) Compromise, compound, abandon, submit to arbitration or otherwise settle any debt, account, claim or thing whatever relating to the trust; and
(d) For any of those purposes, enter into, give, execute and do such agreements, instruments of composition or arrangement, releases and other things as to them seem expedient, without being responsible for any loss occasioned by any act or thing so done by them in good faith.
The powers conferred by this section on two or more trustees acting together may be exercised by a sole acting trustee when by the instrument of trust, if any, a sole trustee is authorised to execute the trusts and powers thereof. This section applies only if and as far as a contrary intention is not expressed in the instrument of trust, if any, and shall have effect subject to the terms of that instrument and to the provisions therein contained.
This section applies only to trusts created after this Act comes into force.
Section 44. Power to several trustees of whom one disclaims or dies.
When an authority to deal with the trust-property is given to several trustees and one of them disclaims or dies, the authority may be exercised by the continuing trustees, unless from the terms of the instrument of trust it is apparent that the authority is to be exercised by a number in excess of the number of the remaining trustees.
Section 45. Suspension of trustee’s powers by decree.
Where a decree has been made in a suit for the execution of a trust. the trustee must not exercise any of his powers except in conformity with such decree, or with the sanction of the Court by which the decree has been made, or, where an appeal against the decree is pending, of the Appellate Court.
Chapter V – OF THE DISABILITIES OF TRUSTEES
Section 46. Trustees cannot renounce after acceptance.
A trustee who has accepted the trust cannot afterwards renounce it except (a) with the permission of a principal Civil Court of original jurisdiction, or (b) if the beneficiary is competent to contract, with his consent, or (c) by virtue of a special power in the instrument of trust.
Section 47. Trustee cannot delegate.
A trustee cannot delegate his office or any of his dudes either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.
Explanation
The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section.
Illustrations
(a) A bequeaths certain property to B and C on certain trusts to be executed by them or the survior of them or the assigns of such survivor, B dies, C may bequeath the trust-property to D and E upon the trusts of A’s will.
(b) A is a trustee of certain property with power to sell the same A may employ an auctioneer to effect the sale.
(c) A bequeaths to B fifty houses let at monthly rents in trust to collect the rents and pay them to C. B may employ a proper person to collect these rents.
Section 48. Co-trustees cannot act singly.
When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides.
Section 49. Control of discretionary power.
Where a discretionary power conferred on a trustee is not exercised reasonably and in good faith, such power may be controlled by a principal Civil Court of original jurisdiction.
Section 50. Trustee may not charge for services.
In the absence of express directions to the contrary contained in the instrument of trust or of a contract to the contrary entered into with the beneficiary or the Court at the time of accepting the trust, a trustee has no right to remuneration for his trouble, skill and loss of time in executing the trust. Nothing in this section applies to any Official Trustee, Administrator General, Public Curator, or person holding a certificate of administration.
Section 51. Trustee may not use trust-property for his own profit.
A trustee may not use or deal with the trust-property for his own profit or for any other purpose unconnected with the trust.
Section 52. Trustee for sale or his agent may not buy.
No trust whose duty it is to sell trust-property, and no agent employed by such trustee for the purpose of the sale, may, directly or indirectly, buy the same or any interest therein, on his own account or as agent for a third person.
Section 53. Trustee may not buy beneficiary’s interest without permission.
No trustee, and no person who has recently ceased to be a trustee, may, without the permission of a principal Civil Court of original jurisdiction, buy or become mortgage or lessee of the trust-property or any party thereof; any such permission shall not be given unless the proposed purchase, mortgage or lease is manifestly for the advantage of the beneficiary.
Trustee for purchase – And no trustee whose duty it is to buy or to obtain a mortgage of lease of particular property for the beneficiary may buy it, or any part thereof, or obtain a mortgage or lease of it, or any part thereof, for himself.
Section 54. Co-trustees may not lend to one of themselves.
A trustee or co-trustee whose duty it is to invest trust-money on mortgage or personal security must not invest it on a mortgage by, or on the personal security of, himself or one of his co-trustees.
Chapter VI – OF THE RIGHTS AND LIABILITIES OF THE BENEFICIARY
Section 55. Rights to rents and profits.
The beneficiary has subject to the provisions of the instrument of trust, a right to the ‘rents and profits of the trust-property.
Section 56. Right to specific execution.
The beneficiary is entitled to have the intention of the author of the trust specifically executed to the extent of the beneficiary’s interest.
Right to transfer of possession. -Where there is, only one beneficiary and he is competent to contract, or where there are several beneficiaries and they are competent to contract and all of one mind, he or they may require the trustee to transfer the trust-property to him or them, or to such person as he or they may direct.
When property has been transferred or bequeathed for the bequeathed for the benefit of a married woman, so that she shall not have power to deprive herself of her beneficial interest, nothing in the second clause of this section applies to such property during her marriage.
Illustrations
(a) Certain Government securities are given to trustees upon trust to accumulate the interest until A attains the age of 24, and then to transfer the gross amount to him. A on attaining majority may, as the person exclusively interested in the trust-property, require the trustees to transfer it immediately to him.
(b) A bequeaths Rs. 10,000 to trustees upon trust to purchase an annuity for B, who has attained his majority and is otherwise competent to contract. B may claim the Rs. 10,000.
(c) A transfers certain property to B and directs him to sell or invest it for the benefit of C, who is competent to contract. C may elect to take the property in its original character.
Section 57. Right to inspect and take copies of instrument of trust accounts, etc.
The beneficiary has a right, as against the trustee and all persons claiming under him with notice of the trust, to inspect and take copies of the instrument of trust, the documents of title relating solely to the trust-property, the accounts of the trust-property and the vouchers (if any) by which they are supported, and the cases submitted and opinions taken by the trustee for his guidance in the discharge of his duty.
Section 58. Right to transfer beneficial interest.
The beneficiary, if competent to contract, may transfer his interest, but subject to the law for the time being in force as to the circumstances and extent in an to which he may dispose of such interest;
Provided that when property is transferred or bequeathed for the benefit of a married woman, so that she shall not have power to deprive herself of her beneficial interest, nothing in this section shall authorize her to transfer such interest during her marriage.
Section 59. Right to sue for execution of trust.
Where no trustees are appointed or all the trustees dies disclaim, or are discharged, or where for any other reason the execution of a trust by the trustee is or becomes impracticable, the beneficiary may institute a suit for the execution of the trust, and the trust shall, so far as may be possible, be executed by the Court until the appointment of a trustee or new trustee.
Section 60. Right to proper trustees.
The beneficiary has a right (subject to the provisions of the instrument of trust) that the trust-property shall be properly protected, held, and administered by proper persons and by a proper number of such persons.
Explanation I
The following are not proper persons within the meaning of this section:
A person domiciled abroad; an alien enemy; a person having an interest inconsistent with that of the beneficiary; a person in insolvent circumstances; and, unless the personal law of the beneficiary allows otherwise, a married woman and a minor.
Explanation II
When the administration of the trust involves the receipt and custody of money, the number of trustees should be two at least.
Illustrations
(a) A, one of several beneficiaries, proves that B, the trustee, has improperly disposed of part of the trust-property, or that the property is in danger from B’s being in insolvent circumstances, or that he is incapacitated from acting as trustee. A may obtain a receiver of the trust-property.
(b) A bequeaths certain jewels to B in trust for C. B die- during A’s life-time; then A dies. C is entitled to have the property conveyed to a trustee for him.
(c) A conveys certain property to four trustees in trust for B. Three of the trustees die, B may institute a suit to have three new trustees appointed in the place of the deceased trustees.
(d) A conveys certain property to three trustees in trust for B. All the trustees disclaim B may institute a suit to have three trustees appointed in place of the trustees so disclaiming.
(e) A, a trustee for B, refuses to act, or goes to reside permanently out of India or is declared an insolvent, or compounds with his creditors, or suffers a co-trustee to commit a breach of trust. B may institute a suit to have A removed and a new trustee appointed in his room.
Section 61. Right to compel to any act of duty.
The beneficiary has a right that his trustee shall be compelled to perform any particular act of his duty as such, and restrained from committing any contemplated or probable breach of trust.
Illustration
(a) A contracts with B to pay him monthly Rs. 100 for the benefit of C. B writes and signs a letter declaring that he will hold in trust for C the money -so to be paid. A fails to pay money in accordance with his contract. C may compel B on a proper indemnity to allow C to sue on the contract in B’s name.
(b) A is trustee of certain land, with a power to sell the same and pay the proceeds to B and C equally. A is about to make an improvident sale of the land. B may sue (in behalf of himself and C for an injunction to restrain A from making the sale.
Section 62. Wrongful purchase by trustee.
Where a trustee has wrongfully bought trust-property, the beneficiary has a right to have the property declared subject to the trust or retransferred by the trustee, if it remains in his hands unsold, or , if it has been bought from him by any person with notice of the trust, by such person. But in such case the beneficiary must repay the purchase-money paid by the trustee, with interest, and such other expenses (if any) as he has properly incurred in the preservation of the property; and the trustee or purchaser must (a) account for the net profits of the property, (b) be charged with an occupation-rent, if he has been in actual possession of the property, and (c) allow the beneficiary to deduct a proportionate part of the purchase-money if the property has been deteriorated by the acts or omission of the trustee or purchaser.
Noting in this section -
(a) Impairs the rights of lessees and others who, before the institution of a suit to have the property declared subject to the trust or retransferred, have contracted in good faith with the trustee or purchaser; or
(b) Entitles the beneficiary to have the property declared subject to the trust or retransferred where he, being competent to contract, has himself, without coercion or undue influence having been brought to bear on him, ratified the sale to the trustee with full knowledge of the facts of the case and of his rights as against the trustee.
Section 63. Following trust-property-into the hands of third persons; into that into which it has been converted.
Where trust-property comes into the hands of a third person inconsistently with the trust, the beneficiary may require him to admit formally, or may institute a suit for a declaration, that the property is comprised in the trust.
Where the trustee has disposed of trust-property and the money or other property which he has received therefor can be traced in his hands, or the hands of his legal representative or legatee, the beneficiary has, in respect thereof, rights as nearly as may be the same as his rights in respect of the original trust-property.
Illustrations
(a) A, a trustee for B of Rs. 10,000, wrongfully invests Rs. 10, 000 in the purchase of certain land. B is entitles to the land.
(b) A, a trustee, wrongfully purchases land in his own name, partly with his own money, partly with money subject to a trust for B. B is entitled to a charge on tile land for the amount of the trust money so misemployed.
Section 64. Saving of rights of certain transferees.
Nothing in Section 63 entities the beneficiary to any right in respect of property in the hands of-
(a) A transferee in good faith for consideration without having notice of the trust, either when the purchase-money was paid, or when the conveyance was executed; or
(b) A transferee for consideration from such a transferee.
A judgment-creditor of the trustee attaching and purchasing trust-property as not a transferee for consideration within the meaning of this section.
Nothing in Section 63 applies to money currency notes and negotiable instruments in the hands of a bona fide holder to whom they have passed in circulation, or shall be deemed to affect the Indian Contract Act, 1872, Section 108, or the liability of a person to whom a debt or charge is transferred.
Section 65. Acquisition by trustee of trust-property wrongfully converted.
Where a trustee wrongfully sells or otherwise transfers trust-property and afterwards himself becomes the owner of the property, the property again becomes subject to the trust, notwithstanding any want of notice on the part of intervening transferees it) good faith for consideration.
Section 66. Right in case of blended property.
Where the trustee wrongfully mingles tile trust-property with his own, the beneficiary is entitled to a charge on the whole fund for the amount due to him.
Section 67. Wrongful employment by partner-trustee of trust-property for partnership purposes.
If a partner, being a trustee, wrongfully employs trust-property in the business or on the account of the partnership, no other partner is liable therefor in his personal capacity to the beneficiaries, unless he had notice of the breach of trust.
The partners having such notice are jointly and severally liable for the breach of trust.
Illustrations
(a) A and B are partners. A dies, having bequeathed all his property to B in trust for Z, and appointed B his sole executor. B, instead of winding up the affairs of tile partnership, retains all the assets in the business. Z may compel him, as partner, to account for so much of tile profits as are derived from A’s share of the capital. B is also answerable to Z for the improper employments of A’s assents.
(b) A, a trader, bequeaths his property to B in trust for appoints B his sole executor and dies. B enters into partnership with X and Y in die same trade and employs A’s assents in the partnership business. B given an indemnity to X and Y against the claim,,; of C. Here X and I’ are jointly liable with B to C as having knowingly become parties to the breach of trust committed by B.
Section 68. Liability of beneficiary joining in breach of trust.
Where one of several beneficiaries. -
(a) Joins in committing breach of trust, or
(b) Knowingly obtains any advantage therefrom, without the consent of the other beneficiaries, or
(c) Becomes aware of a breach of trust committed or intended to be committed, and either actually conceals it, or does not within a reasonable time take proper steps to protect the interests of the other beneficiaries, or
(d) Has deceived the trustee and thereby induced him to commit a breach of trust, the other beneficiaries are entitled to have all his beneficial interest impounded as against him and all two claim under him (otherwise than as transferees for consideration without notice of the breach) until the loss caused by the breach has been compensated.
When property has been transferred or bequeathed for the benefit of a married woman, so that she shall not have power to deprive herself of her beneficial interest, nothing in this section applies to such property during her marriage.
Section 69. Rights and liabilities of beneficiary’s transferee.
Every person to whom a beneficiary transfers his interest has the rights, and is subject to the liabilities, of the beneficiary in respect of such interest at the date of the transfer.
Chapter VII – OF VACATING THE OFFICE OF TRUSTEE
Section 70. Office how vacated.
The office of a trustee is vacated by his death or by his discharge from his office.
Section 71. Discharge of trustee.
The trustee may be discharged from his office only as follows:
(a) By the extinction of the trust;
(b) By the completion of his duties under the trust;
(c) By such means as may be prescribed by the instrument of trust;
(d) By appointment under this Act of a new trustee in his place;
(e) By consent of himself and the beneficiary, or, where there are more beneficiaries than one, all the beneficiaries being competent to contract; or
(f) By the Court to which a petition for his discharge is presented under this Act.
Section 72. Petition to be discharged from trust.
Notwithstanding the provisions of Section 11, every trustee may apply by petition to a principal Civil Court of original jurisdiction to be discharged from his office; and if the Court finds that there is sufficient reason for such discharge, it may discharge him accordingly, and direct his costs to be paid out of the trust-property. But where there is no such reason, the Court shall not discharge him, unless a proper person can be found to take his place.
Section 73. Appointment of new trustees on death, etc.
Whenever any person appointed a trustee disclaims, or any trustee, either original or substituted, dies, or is for a continuous period of six months absent from India, or leaves India for the purpose of residing abroad, or is declared an insolvent, or desires to be discharged from the trust, or refuses or becomes, in the opinion of a principal Civil Court of original jurisdiction, unfit or personally incapable to act in the trust, or accepts an inconsistent trust, a new trustee may be appointed in his place by:
(a) The person nominated for that purpose by the instrument or trust (if any), or
(b) If there be no such person, or no such person able wid willing to act, the author of the trust if he be alive and competent to contract, or the surviving or continuing trustees or trustee for the time being, or legd representative of the last surviving and continuing trustee, or (with the consent of the Court) the retiring trustees, if they all retire simultaneously, or (with the like consent) the last retiring trustee.
Every such appointment shall be by writing under the hand of the person making it.
On an appointment of a new trustee the number of trustees may be increased. The Official Trustee may, with his consent and by die order of the Court, be appointed under this section, in any case, in which only one trustee is to be appointed and such trustee is to be the sole trustee.
The provisions of this section relative to a trustee who is dead include the case of person nominated trustee in a will but dying before the testator, and those relative to continuing trustee include a refusing or retiring trustee if willing to act in the execution of the power.
Section 74. Appointment by Court.
Whenever any such vacancy or disqualification occurs and it is found impracticable to appoint a new trustee under Section 73, the beneficiary may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for the appointment of a trustee or a new trustee, and the Court may appoint a trustee or a new trustee accordingly.
Rule for selecting new trustees – In appointing new trustee, the Court shall have regard (a) to the wishes of the author of the trust as expressed in or to be inferred from the instrument of trust; (b) to the wishes of the person, if any, empowered to appoint new trustees; (c) to the question whether the appointment will promote or impede the execution of the trust; and (d) where there are more beneficiaries than one, to the interests of all such beneficiaries.
Section 75. Vesting of trust-property in new trustees.
Whenever any new trustee is appointed under Section 73 or Section 74, all the trust-property for the time being vested in the surviving or continuing trustees or trustee, or in the legal representative of any trustee, shall become vested in such new trustee, either solely or jointly with the surviving or continuing trustees or trustee as the case may require.
Power of new trustees – Every new trustee so appointed, and every trustee appointed by a Court either before or after the passing of this Act, shall have the same powers, authorities and discretions, and shall in all respects act, as if he had been originally nominated a trustee by the author of the trust.
Section 76. Survival of trust.
In the death or discharge of one of’ several co-trustees, the trust survives and the trust-property passes to the others, unless the instrument of trust expressly declares otherwise.
Chapter VIII – OF THE EXTINCTION OF TRUSTS
Section 77. Trust how extinguished.
A trust is extinguished-
(a) When its purpose is completely fulfilled; or
(b) When its purpose becomes unlawful; or
(c) When the fulfilment of its purpose becomes impossible by destruction of the trust-property or otherwise; or
(d) When the trust, being revocable, is expressly revoked.
Section 78. Revocation of trust.
A trust created by will any be revoked at the pleasure of the testator.
A trust otherwise created can be revoked only -
(a) Where all the beneficiaries are competent to contract by their consents
(b) Where the trust has been declared by non-testamentary instrument or by word of mouth- in exercise of a power of revocation expressly reserved to the author of the trust; or
(c) Where the trust is for the payment of the debts of the author of the trust, and has not been communicated to the creditors at the pleasure of the author of the trust.
Illustration
A conveys property to B in trust to sell the same and pay out of the proceeds the claims of A’s creditors. A reserves no power of revocation. If no communication has been made to the creditors, A may revoke the trust. But if the creditors are parties to the arrangement, the trust cannot be revoked without their consent.
Section 79. Revocation not to defeat what trustees have duly done.
The author of the trust so as to defeat or prejudice what the trustees may have duly done in execution of the trust can revoke no trust.
Chapter IX – OF CERTAIN OBLIGATIONS IN THE NATURE OF TRUSTS
Section 80. Where obligation in nature of trust is created.
An obligation in the nature of a trust is created in the following cases.
Section 81. Where it does not appear that transferor intended to dispose of beneficial interest.
[Repealed by the Benami Transactions (Prohibition) Act, 1988 (45 of 1988)].
Section 82. Transfer to one for consideration paid by another.
[Repealed by the Benami Transactions (Prohibition) Act, 1988 (45 of 1988)].
Section 83. Trust incapable of execution or executed without exhausting trust-property.
Where a trust is incapable of being executed, or where the trust is completely executed without exhausting the trust-property, the trustee, in the absence of a direction to the contrary, must hold the trust property, or so much thereof as is unexhausted, for the benefit of the author of the trust or his legal representative.
Illustrations
(a) A conveys certain land to B. -
Upon trust”, and no trust declared; or
Upon trust to be thereafter declared”, and no such declaration is ever made; or upon trusts that are too vague to be executed; or
Upon trust that become incapable of taking effect; or
“In trust for C’, and C renounces his interest under the trust.
In each of these cases B holds the land for the benefit of A.
(b) A transfers Rs. 10,000 at the four per cent to B, in trusts to pay the interest annually accruing due to C for her life. A dies. Then C dies. B holds the fund for the benefit of A’s legal representative.
(c) A conveys land to B upon trust to sell it and apply one moiety of the proceeds for certain charitable purposes, and the other for the maintenance of the worship of an idol. B sells the land, but the charitable purposes wholly fail, and the maintenance of the worship does not exhaust the second moiety of the proceeds. B holds the first moiety and the part unapplied for the second moiety for the benefit of A or his legal representative.
(d) A bequest Rs. 10,000 to B, to be laid out, in buying land to be conveyed for purposes which either wholly or partially fail to take effect. B holds for the benefit of A’s legal representative the undisposed of interest in the money or land if purchased.
Section 84. Transfer for illegal purpose.
Where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor.
Section 85. Bequest for illegal purpose.
Where a testator bequeaths certain property upon trust and the purpose of the trust appears on the face of the will to b unlawful, or during the testator’s lifetime the legatee agrees with him to apply the property for an unlawful purpose, the legatee must hold the property for the benefit of the testator’s legal representative.
Bequest of which revocation is prevented by coercion – Where property is bequeathed and the revocation of the bequest is prevented by coercion, the legatee must hold the property for the benefit of the testator’s legal representative.
Section 86. Transfer pursuant to rescindable contract.
Where property is transferred in pursuance of a contract which is liable to rescission or induced by fraud or mistake, the transferee must, on receiving notice to that effect, hold the property for the benefit of the transferor, subject to repayment by the latter of the consideration actually paid.
Section 87. Debtor becoming creditor’s representative.
Where a debtor becomes the executor or other legal representative of his creditor, he must hold the debt for the benefit of the persons interested therein.
Section 88. Advantage gained by fiduciary.
Where a trustee, executor, partner, agent, director of a company, legal advisor, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.
Illustrations
(a) A, an executor, buys at an undervalue from B, a legatee, his claim under the will. B is ignorant of the value of the bequest. A must hold for the benefit of B the difference between the price and value.
(b) A, a trustee, uses the trust property for the purpose of his own business. A holds for tile benefit of his beneficiary the profits arising from such user.
(c) A, a trustee, retires from his trust in consideration of his successor paying a sum of money. A holds such money for the benefit of his beneficiary.
(d) A, a partner, buys land in his own name with funds belonging to the partnership. A holds such land for the benefit of the partnership.
(e) A, a partner, employed on behalf of himself and his co-partners is negotiating tile terms of a lease, clandestinely stipulates with the lessor for payment to himself of a lakh of rupees. A holds the lakh for the benefit of the partnership.
(f) A and B are partners. A dies. B, instead of winding up the affairs of the partnership, retains all the assets in the business. B must account to A’s legal representative for the profits arising from A’s share of the capital.
(g) A, an agent employed to obtain a lease for B, obtains the lease for himself. A holds the lease for the benefit of B.
(h) A, a guardian, buys up for himself encumbrances on his ward B’s estate at an undervalue. A holds for the benefit of B the encumbrances so bought, and can only charge him with what lie -has actually paid.
Section 89. Advantage gained by exercise of undue influence.
Where, by the exercise of undue influence, any advantage is gained in derogation of the interests of another, the person gaining such advantage without consideration, or with notice that such influence has been exercised, must hold the advantage for the benefit of the person, whose interests have been so prejudiced.
Section 90. Advantage gained by qualified owner.
Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains all advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to all indemnity by the same persons against liabilities properly contracted, in gaining such advantage.
Illustrations
(a) A, the tenant for life of leasehold property, renews the lease in his own name and for his own benefit. A holds the renewed lease for the benefit of all those interested in the old lease.
(b) A village belongs to a Hindu family. A, one of its members, pays Nazrana to Government and thereby procures his name to be entered as the inamdar of the village. A holds the village for the benefit of himself and the other members.
(c) A mortgages land to B, who enters into possession. B allows the Government revenue to fall into arrear with a view to the land being put up for sale and his becoming himself the purchaser of it. The land is accordingly sold to B. Subject to the repayment of the amount clue on the mortgage and of his expenses properly incurred as mortgagee, B holds the land for the benefit of A.
Section 91. Property acquired with notice of existing contract.
Where a person acquires property with notice that another person has entered into all existing contract affecting that property, of which specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract.
Section 92. Purchase by person contracting to buy property to be held on trust.
Where a person contracts to buy property to be held on trust for certain beneficiaries and buys the property accordingly, he must hold the property for their benefit to the extent necessary to give effect to the contract.
Section 93. Advantage secretly gained by one of several compounding creditors.
Where creditors compound the debts due to them, and one of such creditors, by a secret arrangement with the debtor, gains an undue advantage over his co-creditors, he must hold for the benefit of such creditors the advantage so gained.
Section 94. Constructive trusts in cases not expressly provided for.
[Repealed by the Benami Transactions (Prohibition) Act, 1988 (45 of 1988)].
Section 95. Obligator’s duties, liabilities and disabilities.
The person holding property in accordance with any of the preceding sections of this Chapter must, so far as may be, perform the same duties, and is subject so far as may be, to the same liabilities and disabilities, as if he were a trustee of the property for the person for whose benefit he holds it:
Provided that (a) where he rightfully cultivates the property or employs it in trade or business, he is entitled to reasonable remuneration for his trouble, skill and loss of time in such cultivation or employment; and (b) where he holds the property by virtue of a contract with a person for whose benefit he holds it or with any one through whom such person claims, he may, without the permission of the Court, buy or become lessee or mortgage of the property or any part thereof.
Section 96. Saving of rights of bona fide purchasers.
Nothing contained in this Chapter shall impair the rights of transferees in good faith for consideration, or create all obligations in evasion of any law for the time being in force.
STATUTE
THE SCHEDULE
(See Section 2)
STATUTE
| Year and Chapter |
Short title |
Extent of repeal |
| 29 Car.II, c.3 |
The Statute of Frauds… |
Sections 7,8,9,10 and 11 |
| ACTS OF THE GOVERNOR-GENERAL IN COUNCIL |
| Number and year |
Short title |
Extent of repeal |
| XXVIII of 1866 |
The Trustees and Mortgagees Powers Act, 1866. |
Sections 2, 3, 4, 5, 32, 33, 34, 35, 36 and 37. |
|
|
In Section 1[***] 43 the word “trustee” wherever it occurs; and in Section 43 the words “management or” and “the trust-property or”. |
| 1 of 1877 |
The Specific Relief Act, 1877 |
In Section 12, the first Illustration. |
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1. The Figure “39” and by implication the word “and”’ were omtted by the Amendment Act, 1891 (12 of 1891 ), S. 2 and Sch. I.
