Dear Friends
Today onwards to create awareness about the legal terms, to our non-legal members I have decided to post a word and its meaning on daily basis.
I need your support and feed back, which will be the motivating factor for me.
Thank you Friends
9th November 2011 From India, Kumbakonam
Today onwards to create awareness about the legal terms, to our non-legal members I have decided to post a word and its meaning on daily basis.
I need your support and feed back, which will be the motivating factor for me.
Thank you Friends
9th November 2011 From India, Kumbakonam
Res Judicata - Dictionary Meaning : An Issue already decided by a court.
As per Res Judicata One should not be punished twice for the offence he has already been punished once and all the offences whatever committed should be trialed in single go and it should not be splitted into part for any reason.
9th November 2011 From India, Kumbakonam
As per Res Judicata One should not be punished twice for the offence he has already been punished once and all the offences whatever committed should be trialed in single go and it should not be splitted into part for any reason.
9th November 2011 From India, Kumbakonam
Judicature : Dispensation of Justice
Judicature can be understood as the Power or office of a judge or a judge’s tenure of office (or) the Area of Authority of a judge or a court of law (or) a body of judges or of people holding judicial power.
10th November 2011 From India, Kumbakonam
Judicature can be understood as the Power or office of a judge or a judge’s tenure of office (or) the Area of Authority of a judge or a court of law (or) a body of judges or of people holding judicial power.
10th November 2011 From India, Kumbakonam
Prima-facie : At First Glance (On Initial Examination or consideration)
In Sentence : Prima facie, this lawsuit seems spurious
Prima-facie : Based on what seems to be true, before a situation has been examined in detail. There is strong prima-facie evidence of a miscarriage of justice.
13th November 2011 From India, Kumbakonam
In Sentence : Prima facie, this lawsuit seems spurious
Prima-facie : Based on what seems to be true, before a situation has been examined in detail. There is strong prima-facie evidence of a miscarriage of justice.
13th November 2011 From India, Kumbakonam
Culpable : The Offence Deserving blame or punishment for a wrong. In Simple words Punishable.
Culpable : Person to blame, at fault; especially LAW Guilty, who is responsible for doing something bad or illegal which is considered as punishable offence in the Court of Law.
15th November 2011 From India, Kumbakonam
Culpable : Person to blame, at fault; especially LAW Guilty, who is responsible for doing something bad or illegal which is considered as punishable offence in the Court of Law.
15th November 2011 From India, Kumbakonam
"Injury" : Wound, damage or hurt
The word "injury" denotes any harm whatever illegally caused to any person, in body, mind, reputation or property
Physical Damage to the Body/body Part (or) wound (or) harm caused to someone’s career or reputation by scandal, rumour or defamation (or) Infringement of rights or damage caused to any property.
16th November 2011 From India, Kumbakonam
The word "injury" denotes any harm whatever illegally caused to any person, in body, mind, reputation or property
Physical Damage to the Body/body Part (or) wound (or) harm caused to someone’s career or reputation by scandal, rumour or defamation (or) Infringement of rights or damage caused to any property.
16th November 2011 From India, Kumbakonam
Adult : Adult Means who has completed 18 years of age. If a person completed his 18 years is known as Adult.
Adolescent : Adolescent means those who has completed 14 years and those within the age of 18 years. If the age is between 15 years and 18 years is known as Adolescent.
Child : Child means who is within the age of 14 Years means If the Age is 14 years or less than that is known as Child.
18th November 2011 From India, Kumbakonam
Adolescent : Adolescent means those who has completed 14 years and those within the age of 18 years. If the age is between 15 years and 18 years is known as Adolescent.
Child : Child means who is within the age of 14 Years means If the Age is 14 years or less than that is known as Child.
18th November 2011 From India, Kumbakonam
"Factory" : means any premises where ten or more workers with the aid of power (or) twenty or more workers without the aid of power are/were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, but does not include a mine under Mines Act,1952, Mobile unit of Armed Forces, Railway running shed or a hotel, restaurant are also not considered as Factory.
22nd November 2011 From India, Kumbakonam
22nd November 2011 From India, Kumbakonam
“salary or wage as per Payment of Bonus Act for calculating Bonus” All remuneration capable of being expressed in terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to an employee in respect of his employment or of work done in such employment and includes dearness allowance (that is to say, all cash payments, by whatever name called, paid to an employee on account of a rise in the cost of living), but does not include-
(i) any other allowance which the employee is for the time being entitled to;
(ii) the value of any house accommodation or supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of food grains or other articles;
(iii) any traveling concession;
(iv) any bonus (including incentive, production and attendance bonus);
(v) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the employee under any law for the time being in force;
(vi) any retrenchment compensation or any gratuity or other retirement benefit payable to the employee or any ex gratia payment made to him;
(vii) any commission payable to the employee.
(viii) remuneration in respect of over-time work.
Explanation. – Where an employee is given in lieu of the whole or part of the salary or wage payable to him, free food allowance or free food by his employer, such food allowance or the value of such food shall, for the purpose of this clause, be deemed to from part of the salary or wage of such employee
25th November 2011 From India, Kumbakonam
(i) any other allowance which the employee is for the time being entitled to;
(ii) the value of any house accommodation or supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of food grains or other articles;
(iii) any traveling concession;
(iv) any bonus (including incentive, production and attendance bonus);
(v) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the employee under any law for the time being in force;
(vi) any retrenchment compensation or any gratuity or other retirement benefit payable to the employee or any ex gratia payment made to him;
(vii) any commission payable to the employee.
(viii) remuneration in respect of over-time work.
Explanation. – Where an employee is given in lieu of the whole or part of the salary or wage payable to him, free food allowance or free food by his employer, such food allowance or the value of such food shall, for the purpose of this clause, be deemed to from part of the salary or wage of such employee
25th November 2011 From India, Kumbakonam
As per section 8 of Workmen Compensation Act, the Compensation should not be paid directly to the legal heirs or the family members of the deceased workmen. In case if the compensation is paid, it will be considered as Ex-gratia and not compensation. The Compensation amount must be deposited with the Workmen Compensation Commissioner of the respective district.
The wordings from the Act is as follows
8. DISTRIBUTION OF COMPENSATION. - (1) No payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation :
Provided that, in the case of a deceased workman, an employer may make to any dependant advances on account of compensation of an amount equal to three months' wages of such workman and so much of such amount as does not exceed the compensation payable to that dependant shall be deducted by the Commissioner from such compensation and repaid to the employer.
(2) Any other sum amounting to not less than ten rupees which is payable as compensation may be deposited with the Commissioner on behalf of the person entitled thereto.
(3) The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him.
(4) On the deposit of any money under sub-section (1), as compensation in respect of a deceased workman the Commissioner shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit, calling upon the dependants to appear before him on such date as he may fix for determining the distribution of the compensation.
If the Commissioner is satisfied after any inquiry which he may deem necessary, that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid.
The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made.
(5) Compensation deposited in respect of a deceased workman shall, subject to any deduction made under sub-section (4), be apportioned among the dependants of the deceased workman or any of them in such proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner, be allotted to any one dependant.
(6) Where any compensation deposited with the Commissioner is payable to any person, the Commissioner shall, if the person to whom the compensation is payable is not a woman or a person under a legal disability, and may, in other cases, pay the money to the person entitled thereto.
(7) Where any lump sum deposited with the Commissioner is payable to a woman or a person under a legal disability, such sum may be invested, applied or otherwise dealt with for the benefit of the woman, or of such person during his disability, in such manner as the Commissioner may direct; and where a half-monthly payment is payable to any person under a legal disability, the Commissioner may, of his own motion or on an application made to him in this behalf, order that the payment be made during the disability to any dependant of the workman or to any other person, whom the Commissioner thinks best fitted to provide for the welfare of the workman.
(8) Where, on application made to him in this behalf or otherwise, the Commissioner is satisfied that, on account of neglect of children on the part of a parent or on account of the variation of the circumstances of any dependant or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependant is to be invested, applied or otherwise dealt with, ought to be varied, the Commissioner may make such orders for the variation of the former order as he thinks just in the circumstances of the case :
Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order should not be made, or shall be made in any case in which it would involve the repayment by a dependant of any sum already paid to him.
(9) Where the Commissioner varies any order under sub-section (8) by reason of the fact that payment of compensation to any person has been obtained by fraud, impersonation or other improper means, any amount so paid to or on behalf of such person may be recovered in the manner hereinafter provided in section 31.
7th December 2011 From India, Kumbakonam
The wordings from the Act is as follows
8. DISTRIBUTION OF COMPENSATION. - (1) No payment of compensation in respect of a workman whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability, shall be made otherwise than by deposit with the Commissioner, and no such payment made directly by an employer shall be deemed to be a payment of compensation :
Provided that, in the case of a deceased workman, an employer may make to any dependant advances on account of compensation of an amount equal to three months' wages of such workman and so much of such amount as does not exceed the compensation payable to that dependant shall be deducted by the Commissioner from such compensation and repaid to the employer.
(2) Any other sum amounting to not less than ten rupees which is payable as compensation may be deposited with the Commissioner on behalf of the person entitled thereto.
(3) The receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him.
(4) On the deposit of any money under sub-section (1), as compensation in respect of a deceased workman the Commissioner shall, if he thinks necessary, cause notice to be published or to be served on each dependant in such manner as he thinks fit, calling upon the dependants to appear before him on such date as he may fix for determining the distribution of the compensation.
If the Commissioner is satisfied after any inquiry which he may deem necessary, that no dependant exists, he shall repay the balance of the money to the employer by whom it was paid.
The Commissioner shall, on application by the employer, furnish a statement showing in detail all disbursements made.
(5) Compensation deposited in respect of a deceased workman shall, subject to any deduction made under sub-section (4), be apportioned among the dependants of the deceased workman or any of them in such proportion as the Commissioner thinks fit, or may, in the discretion of the Commissioner, be allotted to any one dependant.
(6) Where any compensation deposited with the Commissioner is payable to any person, the Commissioner shall, if the person to whom the compensation is payable is not a woman or a person under a legal disability, and may, in other cases, pay the money to the person entitled thereto.
(7) Where any lump sum deposited with the Commissioner is payable to a woman or a person under a legal disability, such sum may be invested, applied or otherwise dealt with for the benefit of the woman, or of such person during his disability, in such manner as the Commissioner may direct; and where a half-monthly payment is payable to any person under a legal disability, the Commissioner may, of his own motion or on an application made to him in this behalf, order that the payment be made during the disability to any dependant of the workman or to any other person, whom the Commissioner thinks best fitted to provide for the welfare of the workman.
(8) Where, on application made to him in this behalf or otherwise, the Commissioner is satisfied that, on account of neglect of children on the part of a parent or on account of the variation of the circumstances of any dependant or for any other sufficient cause, an order of the Commissioner as to the distribution of any sum paid as compensation or as to the manner in which any sum payable to any such dependant is to be invested, applied or otherwise dealt with, ought to be varied, the Commissioner may make such orders for the variation of the former order as he thinks just in the circumstances of the case :
Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order should not be made, or shall be made in any case in which it would involve the repayment by a dependant of any sum already paid to him.
(9) Where the Commissioner varies any order under sub-section (8) by reason of the fact that payment of compensation to any person has been obtained by fraud, impersonation or other improper means, any amount so paid to or on behalf of such person may be recovered in the manner hereinafter provided in section 31.
7th December 2011 From India, Kumbakonam
Section 80 of the civil procedure code, 1908 says that if we have to file a case against the public officer or any state authority or to any state goverment or central goverment. we have to first give them a notice in writing before 2 months time. The wordings from Section 80 of Code of Civil Procedure is as follows :
80. 1[(1)] 2[Save as otherwise provided in sub-section (2), no suits 3[shall be instituted] against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been 4[delivered to, or left at the office of]-
(a) in the case of a suit against the Central Government, 5[except where it relates to a railway], a Secretary to that Government;
6[7[(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway];
8[(bb) in the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;]
(c) in the case of a suit against 9[any other State Government], a Secretary to that Government or the Collector of the district; 10[***] 11[***] and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
12[(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-
(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]
STATE AMENDMENTS
Madhya Pradesh -(i) After sub-section (3) of Section 80 the following inserted:
"(4) where in a suit or proceeding referred to in Rule 3B of Order 1, the state is joined as a defendant or non applicant or where the Court orders joinder of the State as defendant or non applicant in exercise of powers under Rule 10(2) of Order 1 such suit or proceeding shall not be dismissed by reasons of Omission of the plaintiff or applicant to issue notice under sub-section (1)".
(ii) In sub-section (1) of section 80 for the words "sub-section (2)" substitute "sub-section (2) or (4)". [M.P. Act No. 29 of 1984].
1. Sec. 80 renumbered as sub-section (1) of that section by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 27 for "No suit shall be instituted' (w.e.f. 1-2-1977).
3. Subs. by Act 26 of 1963, sec. 3 for "shall be instituted against the Government" (w.e.f. 5-6-1964). The words in italics were subs. by the A.O. 1948 for "instituted against the Crown".
4. Subs. by the A.O. 1937, "in case of the Secretary of State in Council, deliver to , or left at the office of a Secretary to the L.G. or the COntroller ofn the district".
5. Ins. by Act 6 of 1948, sec. 2.
6. Clause (aa) ins. by Act 6 of 1948, sec. 2.
7. Clause (aa) relettered as clause (b) and the former clause (b) omitted by the A.O. 1948.
8. Ins. by the Act 26 of 1963, sec. 3 (w.e.f. 5-6-1964).
9. Subs. by the Act 26 of 1963, sec. 3 for "a State Government" (w.e.f. 5-6-1964).
10. The word "and" omitted by the A.O. 1948.
11. Clause (d) omitted by the A.O. 1948.
12. Ins. by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).
8th December 2011 From India, Kumbakonam
80. 1[(1)] 2[Save as otherwise provided in sub-section (2), no suits 3[shall be instituted] against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been 4[delivered to, or left at the office of]-
(a) in the case of a suit against the Central Government, 5[except where it relates to a railway], a Secretary to that Government;
6[7[(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway];
8[(bb) in the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;]
(c) in the case of a suit against 9[any other State Government], a Secretary to that Government or the Collector of the district; 10[***] 11[***] and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
12[(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-
(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]
STATE AMENDMENTS
Madhya Pradesh -(i) After sub-section (3) of Section 80 the following inserted:
"(4) where in a suit or proceeding referred to in Rule 3B of Order 1, the state is joined as a defendant or non applicant or where the Court orders joinder of the State as defendant or non applicant in exercise of powers under Rule 10(2) of Order 1 such suit or proceeding shall not be dismissed by reasons of Omission of the plaintiff or applicant to issue notice under sub-section (1)".
(ii) In sub-section (1) of section 80 for the words "sub-section (2)" substitute "sub-section (2) or (4)". [M.P. Act No. 29 of 1984].
1. Sec. 80 renumbered as sub-section (1) of that section by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 27 for "No suit shall be instituted' (w.e.f. 1-2-1977).
3. Subs. by Act 26 of 1963, sec. 3 for "shall be instituted against the Government" (w.e.f. 5-6-1964). The words in italics were subs. by the A.O. 1948 for "instituted against the Crown".
4. Subs. by the A.O. 1937, "in case of the Secretary of State in Council, deliver to , or left at the office of a Secretary to the L.G. or the COntroller ofn the district".
5. Ins. by Act 6 of 1948, sec. 2.
6. Clause (aa) ins. by Act 6 of 1948, sec. 2.
7. Clause (aa) relettered as clause (b) and the former clause (b) omitted by the A.O. 1948.
8. Ins. by the Act 26 of 1963, sec. 3 (w.e.f. 5-6-1964).
9. Subs. by the Act 26 of 1963, sec. 3 for "a State Government" (w.e.f. 5-6-1964).
10. The word "and" omitted by the A.O. 1948.
11. Clause (d) omitted by the A.O. 1948.
12. Ins. by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).
8th December 2011 From India, Kumbakonam
Section 80 of the civil procedure code, 1908 says that if we have to file a case against the public officer or any state authority or to any state goverment or central goverment. we have to first give them a notice in writing before 2 months time in case the Public Officer involved in the miscondut or breach done by the public authority or any state authority or to any state goverment or central goverment.
The wordings available in Section 80 of Code of Civil Procedure is as follows :
80 1[(1)] 2[Save as otherwise provided in sub-section (2), no suits 3[shall be instituted] against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been 4[delivered to, or left at the office of]-
(a) in the case of a suit against the Central Government, 5[except where it relates to a railway], a Secretary to that Government;
6[7[(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway]; 8[(bb) in the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;]
(c) in the case of a suit against 9[any other State Government], a Secretary to that Government or the Collector of the district; 10[***] 11[***]and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
12[(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-
(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]
STATE AMENDMENTS
Madhya Pradesh -(i) After sub-section (3) of Section 80 the following inserted:
"(4) where in a suit or proceeding referred to in Rule 3B of Order 1, the state is joined as a defendant or non applicant or where the Court orders joinder of the State as defendant or non applicant in exercise of powers under Rule 10(2) of Order 1 such suit or proceeding shall not be dismissed by reasons of Omission of the plaintiff or applicant to issue notice under sub-section (1)".
(ii) In sub-section (1) of section 80 for the words "sub-section (2)" substitute "sub-section (2) or (4)". [M.P. Act No. 29 of 1984].
1. Sec. 80 renumbered as sub-section (1) of that section by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 27 for "No suit shall be instituted' (w.e.f. 1-2-1977).
3. Subs. by Act 26 of 1963, sec. 3 for "shall be instituted against the Government" (w.e.f. 5-6-1964). The words in italics were subs. by the A.O. 1948 for "instituted against the Crown".
4. Subs. by the A.O. 1937, "in case of the Secretary of State in Council, deliver to , or left at the office of a Secretary to the L.G. or the COntroller ofn the district".
5. Ins. by Act 6 of 1948, sec. 2.
6. Clause (aa) ins. by Act 6 of 1948, sec. 2.
7. Clause (aa) relettered as clause (b) and the former clause (b) omitted by the A.O. 1948.
8. Ins. by the Act 26 of 1963, sec. 3 (w.e.f. 5-6-1964).
9. Subs. by the Act 26 of 1963, sec. 3 for "a State Government" (w.e.f. 5-6-1964).
10. The word "and" omitted by the A.O. 1948.
11. Clause (d) omitted by the A.O. 1948.
12. Ins. by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).
8th December 2011 From India, Kumbakonam
The wordings available in Section 80 of Code of Civil Procedure is as follows :
80 1[(1)] 2[Save as otherwise provided in sub-section (2), no suits 3[shall be instituted] against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been 4[delivered to, or left at the office of]-
(a) in the case of a suit against the Central Government, 5[except where it relates to a railway], a Secretary to that Government;
6[7[(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway]; 8[(bb) in the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;]
(c) in the case of a suit against 9[any other State Government], a Secretary to that Government or the Collector of the district; 10[***] 11[***]and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
12[(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-
(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]
STATE AMENDMENTS
Madhya Pradesh -(i) After sub-section (3) of Section 80 the following inserted:
"(4) where in a suit or proceeding referred to in Rule 3B of Order 1, the state is joined as a defendant or non applicant or where the Court orders joinder of the State as defendant or non applicant in exercise of powers under Rule 10(2) of Order 1 such suit or proceeding shall not be dismissed by reasons of Omission of the plaintiff or applicant to issue notice under sub-section (1)".
(ii) In sub-section (1) of section 80 for the words "sub-section (2)" substitute "sub-section (2) or (4)". [M.P. Act No. 29 of 1984].
1. Sec. 80 renumbered as sub-section (1) of that section by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 27 for "No suit shall be instituted' (w.e.f. 1-2-1977).
3. Subs. by Act 26 of 1963, sec. 3 for "shall be instituted against the Government" (w.e.f. 5-6-1964). The words in italics were subs. by the A.O. 1948 for "instituted against the Crown".
4. Subs. by the A.O. 1937, "in case of the Secretary of State in Council, deliver to , or left at the office of a Secretary to the L.G. or the COntroller ofn the district".
5. Ins. by Act 6 of 1948, sec. 2.
6. Clause (aa) ins. by Act 6 of 1948, sec. 2.
7. Clause (aa) relettered as clause (b) and the former clause (b) omitted by the A.O. 1948.
8. Ins. by the Act 26 of 1963, sec. 3 (w.e.f. 5-6-1964).
9. Subs. by the Act 26 of 1963, sec. 3 for "a State Government" (w.e.f. 5-6-1964).
10. The word "and" omitted by the A.O. 1948.
11. Clause (d) omitted by the A.O. 1948.
12. Ins. by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).
8th December 2011 From India, Kumbakonam
According to Section 174 of Code of Criminal Procedure, In case of any Suicide, Accidental Death occurred or killed by animal, the Officer in charge of Police Station has to enquire the case under this section on receipt of information and file a FIR and further will send the body for Autopsy test. In this case a relative has to submit an application for conducting an enquiry about the death of the deceased to the Officer in charge of Police Station.
The wordings as per the Cr.P.C. is as follows for ready reference.
174. Police to inquire and report on suicide, etc.
(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighborhood shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of inquiry as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate.
(3)1[When
(i) The case involves suicide by a woman within seven years of her marriage: or
(ii) The case relates to the death of a woman within seven years of tier marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or
(iii) The case relates to the death of a woman within seven years of her marriage and any case relative of the woman has made a request in this behalf, or
(iv) There is any doubt regarding the cause of death; or
(v) The police officer for any other reason considers it expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.
(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub-divisional Magistrate and any other Executive Magistrate specially empowered in this behalf' by the State Government or the District Magistrate.
1. Subs. by Act 46 of 1983, sec. 3., for certain words (w.e.f 25-12-1983).
9th December 2011 From India, Kumbakonam
The wordings as per the Cr.P.C. is as follows for ready reference.
174. Police to inquire and report on suicide, etc.
(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighborhood shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of inquiry as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate.
(3)1[When
(i) The case involves suicide by a woman within seven years of her marriage: or
(ii) The case relates to the death of a woman within seven years of tier marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or
(iii) The case relates to the death of a woman within seven years of her marriage and any case relative of the woman has made a request in this behalf, or
(iv) There is any doubt regarding the cause of death; or
(v) The police officer for any other reason considers it expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.
(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub-divisional Magistrate and any other Executive Magistrate specially empowered in this behalf' by the State Government or the District Magistrate.
1. Subs. by Act 46 of 1983, sec. 3., for certain words (w.e.f 25-12-1983).
9th December 2011 From India, Kumbakonam
As per Section 154 of Code of Criminal Procedure, the offender must be supplied with a copy of the statement written by the Officer incharge Police Station, in case of any Cognizable Offence without charging anything.
Sec 154 of Cr P C is as follows
154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
17th December 2011 From India, Kumbakonam
Sec 154 of Cr P C is as follows
154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
17th December 2011 From India, Kumbakonam
Uberrimae Fidei is a Latin Word which means Utmost Good Faith
A contract in which knowledge of the material fact(s) lies with one party alone; that party is under a duty to make a full disclosure of these facts, and failure to do so makes the contract voidable.
A Latin expression: the utmost of (good) faith.
Uberrimae Fidei Contract : A legal agreement requiring the highest standard good faith. "Uberrimae fidei" or "uberrima fides" is Latin for "utmost good faith." Insurance contracts are the most common type of uberrimae fidei contract. Because the insurance company agrees to share the risk of loss with the policyholder, it is imperative that the policyholder act in good faith by fully disclosing all information that affects the insurance company's level of risk. Full disclosure allows the insurer to protect itself by charging the policyholder a premium that accurately reflects the level of risk it is undertaking or even refusing to issue a policy if the risk is too high.
Investopedia explains 'Uberrimae Fidei Contract'
Because the insurance applicant often has more information about the risk that is being insured against than the insurer does, the principle of uberrimae fidei is used in an attempt to eliminate moral hazard. For example, someone applying for health insurance knows more about their eating habits, exercise patterns, family medical history and personal medical history than the potential insurer does. In order to determine how risky the applicant is, the insurer requires him or her to honestly answer a medical questionnaire and submit to a review of medical records before being approved for a policy. If the policyholder is later found to not have acted in utmost good faith at the time of application, his policy and benefits can be rescinded.
29th December 2011 From India, Kumbakonam
A contract in which knowledge of the material fact(s) lies with one party alone; that party is under a duty to make a full disclosure of these facts, and failure to do so makes the contract voidable.
A Latin expression: the utmost of (good) faith.
Uberrimae Fidei Contract : A legal agreement requiring the highest standard good faith. "Uberrimae fidei" or "uberrima fides" is Latin for "utmost good faith." Insurance contracts are the most common type of uberrimae fidei contract. Because the insurance company agrees to share the risk of loss with the policyholder, it is imperative that the policyholder act in good faith by fully disclosing all information that affects the insurance company's level of risk. Full disclosure allows the insurer to protect itself by charging the policyholder a premium that accurately reflects the level of risk it is undertaking or even refusing to issue a policy if the risk is too high.
Investopedia explains 'Uberrimae Fidei Contract'
Because the insurance applicant often has more information about the risk that is being insured against than the insurer does, the principle of uberrimae fidei is used in an attempt to eliminate moral hazard. For example, someone applying for health insurance knows more about their eating habits, exercise patterns, family medical history and personal medical history than the potential insurer does. In order to determine how risky the applicant is, the insurer requires him or her to honestly answer a medical questionnaire and submit to a review of medical records before being approved for a policy. If the policyholder is later found to not have acted in utmost good faith at the time of application, his policy and benefits can be rescinded.
29th December 2011 From India, Kumbakonam
P I L : Public Interest Litigation
The PIL is filed to keep the interest of the public at large and should not be filed for Publicity Interest.
Although the proceedings in the Supreme Court arise out of the judgments or orders made by the Subordinate Courts including the High Courts, but of late the Supreme Court has started entertaining matters in which interest of the public at large is involved and the Court can be moved by any individual or group of persons either by filing a Writ Petition at the Filing Counter of the Court or by addressing a letter to Hon'ble the Chief Justice of India highlighting the question of public importance for invoking this jurisdiction. Such concept is popularly known as 'Public Interest Litigation' and several matters of public importance have become landmark cases. This concept is unique to the Supreme Court of India only and perhaps no other Court in the world has been exercising this extraordinary jurisdiction. A Writ Petition filed at the Filing Counter is dealt with like any other Writ Petition and processed as such. In case of a letter addressed to Hon'ble the Chief Justice of India the same is dealt with in accordance with the guidelines framed for the purpose.
29th December 2011 From India, Kumbakonam
The PIL is filed to keep the interest of the public at large and should not be filed for Publicity Interest.
Although the proceedings in the Supreme Court arise out of the judgments or orders made by the Subordinate Courts including the High Courts, but of late the Supreme Court has started entertaining matters in which interest of the public at large is involved and the Court can be moved by any individual or group of persons either by filing a Writ Petition at the Filing Counter of the Court or by addressing a letter to Hon'ble the Chief Justice of India highlighting the question of public importance for invoking this jurisdiction. Such concept is popularly known as 'Public Interest Litigation' and several matters of public importance have become landmark cases. This concept is unique to the Supreme Court of India only and perhaps no other Court in the world has been exercising this extraordinary jurisdiction. A Writ Petition filed at the Filing Counter is dealt with like any other Writ Petition and processed as such. In case of a letter addressed to Hon'ble the Chief Justice of India the same is dealt with in accordance with the guidelines framed for the purpose.
29th December 2011 From India, Kumbakonam
Harbouring of Offender
Section 216 of Indian Penal Code
Whenever any person convicted of or charged with an offence, being in lawful custody for that offence, escapes from such custody; or whenever a public servant, in the exercise of the lawful powers of such public servant, orders a certain person to be apprehended for an offence, whoever, knowing of such escape or order for apprehension, harbours of conceals that person with the intention of preventing him from being apprehended, shall be punished in the manner following that is to say,—
if a capital offence.—if the offence for which the person was in custody or is ordered to be apprehended is punishable with death, he shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life, or with imprisonment.—if the offence is punishable with 1[imprisonment for life], or imprisonment for ten years, he shall be punished with imprison*ment of either description for a term which may extend to three years, with or without fine;
and if the offence is punishable with imprisonment which may extend to one year and not to ten years, he shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of the imprisonment provided for such offence, or with fine, or with both.
“Offence” in this section includes also any act or omission of which a person is alleged to have been guilty out of India, which, if he had been guilty of it in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be appre*hended or detained in custody in India; and every such act or omission shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in India.
Exception.—This provision does not extend to the case in which the harbour or concealment is by the husband or wife of the person to be apprehended
6th January 2012 From India, Kumbakonam
Section 216 of Indian Penal Code
Whenever any person convicted of or charged with an offence, being in lawful custody for that offence, escapes from such custody; or whenever a public servant, in the exercise of the lawful powers of such public servant, orders a certain person to be apprehended for an offence, whoever, knowing of such escape or order for apprehension, harbours of conceals that person with the intention of preventing him from being apprehended, shall be punished in the manner following that is to say,—
if a capital offence.—if the offence for which the person was in custody or is ordered to be apprehended is punishable with death, he shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life, or with imprisonment.—if the offence is punishable with 1[imprisonment for life], or imprisonment for ten years, he shall be punished with imprison*ment of either description for a term which may extend to three years, with or without fine;
and if the offence is punishable with imprisonment which may extend to one year and not to ten years, he shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of the imprisonment provided for such offence, or with fine, or with both.
“Offence” in this section includes also any act or omission of which a person is alleged to have been guilty out of India, which, if he had been guilty of it in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be appre*hended or detained in custody in India; and every such act or omission shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in India.
Exception.—This provision does not extend to the case in which the harbour or concealment is by the husband or wife of the person to be apprehended
6th January 2012 From India, Kumbakonam
What is criminal Conspiracy.
The Section 120 A of Indian Penal Code explains the Criminal Conspiracy as follows:
120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,—
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation
It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
COMMENTS
Appraisal of law of conspiracy
The prosecution is not required to prove that perpetrators agreed to do or cause to be done the illegal act; Mohd. Usman Mohd. Hussain Maniyar v. State of Maharashtra, AIR 1981 SC 162: (1981) SC Cr 381: (1981) Cr LJ 597.
The evidence as to transmission of thoughts sharing the unlawful design may be sufficient; Kehar Singh v. State (Delhi Admn.), (1989) Cr LJ 1: AIR 1988 SC 1883.
22nd January 2012 From India, Kumbakonam
The Section 120 A of Indian Penal Code explains the Criminal Conspiracy as follows:
120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,—
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation
It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
COMMENTS
Appraisal of law of conspiracy
The prosecution is not required to prove that perpetrators agreed to do or cause to be done the illegal act; Mohd. Usman Mohd. Hussain Maniyar v. State of Maharashtra, AIR 1981 SC 162: (1981) SC Cr 381: (1981) Cr LJ 597.
The evidence as to transmission of thoughts sharing the unlawful design may be sufficient; Kehar Singh v. State (Delhi Admn.), (1989) Cr LJ 1: AIR 1988 SC 1883.
22nd January 2012 From India, Kumbakonam
CAVEAT : Caveat is a Latin word which means beware. There are three phrases in Caveat which are as follows
Caveat lector : Let the Reader Beware
Caveat Emptor : Let the Buyer Beware
Caveat Venditor : Let the Seller Beware
CAVEAT PETITION : Caveat is a two line application addressed to the registrar, filled in any of the High Court or Supreme Court of India mentioning the details of any matter which is instituted or expected to be instituted in a suit/appeal/proceeding before the said court where the applicant/caveator request that no order with regard to the said matter may be passed without giving notice to the applicant/caveator. The advantage of such application/caveat is to avoid any ex-parte order in any matter which the other party may try to get at the time of filling the matter in any of the courts. Not much a cost is involved in filling of caveat apart from the cost for sending the notice & copies of the petition/application and/or papers/documents in support of this petition/application of the matter against which this caveat was lodged to the caveator i.e. you & the professional fee of the advocate in filling this caveat which you will have to bear.
25th January 2012 From India, Kumbakonam
Caveat lector : Let the Reader Beware
Caveat Emptor : Let the Buyer Beware
Caveat Venditor : Let the Seller Beware
CAVEAT PETITION : Caveat is a two line application addressed to the registrar, filled in any of the High Court or Supreme Court of India mentioning the details of any matter which is instituted or expected to be instituted in a suit/appeal/proceeding before the said court where the applicant/caveator request that no order with regard to the said matter may be passed without giving notice to the applicant/caveator. The advantage of such application/caveat is to avoid any ex-parte order in any matter which the other party may try to get at the time of filling the matter in any of the courts. Not much a cost is involved in filling of caveat apart from the cost for sending the notice & copies of the petition/application and/or papers/documents in support of this petition/application of the matter against which this caveat was lodged to the caveator i.e. you & the professional fee of the advocate in filling this caveat which you will have to bear.
25th January 2012 From India, Kumbakonam
Dear Bhaskar sir
I read your post in citehr regurarly your are giving very valuable information to citehr members many many thanks
just provide some information for citehr members
Now a days justice available in courts and police stations in some of people only who has some money power and political influnce power
not everywhere some places happening like this just citehr members awarness for just some doubts
if police want to arrest one person the police what should have produce to arrest anything document or not if arrested whom whom to inform the arrest information
what is maximum duration time to keep in police custody arrested men/women wether he arrested in civil/criminal case
if morethan duration time kept in custody whom to appraoch for justice
can he approach or not
charging some false cases on innocent people with third degree methods then what is procedure to get justice innocent people
if one person on interograted on third degree intentionally or on suspect if police not proved anything after integroated and released from custody can he take any action against police by law
some people intentionally make fake complaint to police harrase to others persons example
one x person has to pay some loan amount to another y person
y person going regularly to collect his amount but x person unable to pay amount but he approached the police and give the complaint that y person is went to my home and misbehaved with our family as give false complaint to rid of his loan amount
neighbours having some disputes for that also each others making false complaints
tenant has three rent dew because owner on tent kept false some theft case rid of dew rent
10th February 2012 From India , Hyderabad
I read your post in citehr regurarly your are giving very valuable information to citehr members many many thanks
just provide some information for citehr members
Now a days justice available in courts and police stations in some of people only who has some money power and political influnce power
not everywhere some places happening like this just citehr members awarness for just some doubts
if police want to arrest one person the police what should have produce to arrest anything document or not if arrested whom whom to inform the arrest information
what is maximum duration time to keep in police custody arrested men/women wether he arrested in civil/criminal case
if morethan duration time kept in custody whom to appraoch for justice
can he approach or not
charging some false cases on innocent people with third degree methods then what is procedure to get justice innocent people
if one person on interograted on third degree intentionally or on suspect if police not proved anything after integroated and released from custody can he take any action against police by law
some people intentionally make fake complaint to police harrase to others persons example
one x person has to pay some loan amount to another y person
y person going regularly to collect his amount but x person unable to pay amount but he approached the police and give the complaint that y person is went to my home and misbehaved with our family as give false complaint to rid of his loan amount
neighbours having some disputes for that also each others making false complaints
tenant has three rent dew because owner on tent kept false some theft case rid of dew rent
10th February 2012 From India , Hyderabad
Arrest : Arrest means Holding someone by removing their freedom of liberty. Even if the individual is restricted the movement also known as arrest.
The Arrest is of two types
Open Arrest : Open arrest is nothing but confining one individual within the camp against his freedom.
Close Arrest : Detain an individual against his will and it is made as punishment for any offence one has committed, (or) to restrict one from committing any offence, (or) to prevent one from removing the evidence of crime, which is being used to prove in the court of law against the individual.
What is arrest?
As per Criminal Procedural Code of India, Arrest means the taking, seizing, or detaining of the person of another, either by touching, or putting hands on him, or by any act which indicates an intention to take him into custody, and subjects the person arrested to the actual control and will of the person making the arrest.
Chapter V and section 41 to 59 of Criminal Procedure Code 1973, deals with Arrest of Persons.
As per section 41 (1) Cr.P.C, any police officer may, without an order from a Magistrate and without a warrant, arrest any person,
(a) who has been concerned in any cognizable offence, or a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists; or
(b) who has in his possession of any implement of house breaking; or
(c) who has been proclaimed as an offender or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody;
(f) reasonably suspected of being a deserter from any of the Armed Forces.
As per section 42 of Cr.P.C., any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence, refuses on demand of such officer to give his name and residence, can be arrested.
As per section 50 of Cr.P.C., person arrested without warrant has to be informed about the grounds of his arrest and about his entitlement regarding bail.
As per section 53 of Cr.P.C., when a person is arrested and if there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector (and for any person acting in good faith in his aid and his direction), to make such an examination of a person arrested as is reasonably necessary, and to use such force as is reasonably necessary for that purpose.
When a person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
As per section 56 of Cr.P.C., A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction of the case or before the officer in-charge of a police station.
As per section 57 of Cr.P.C., No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 16, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.
As per section 151 of Cr.P.C., a person can also be arrested to prevent commission of cognizable offences.
What is meant by "Bailable / Non-bailable offences"?
1. Under the Code of Criminal Procedure 1973 (first shedule), offences have been classified as ‘bailable’ and ‘non-bailable’ offences.
2. In the case of bailable offences, it is binding upon the investigating officer to grant bail. However, in case of a non-bailable offence, the police can not grant bail and bail can be granted by a Judicial Magistrate/Judge only.
3. In case of bailable offences, if the accused produces proper surety, and fulfills other conditions, it is binding upon the Investigating officer to grant bail.
4. In the case of a non-bailable offence, the Investigating Officer must produce the accused before the Judicial Magistrate / Judge concerned within 24 hours of his arrest. At that time, the accused has a right to apply for bail.
26th February 2012 From India, Kumbakonam
The Arrest is of two types
Open Arrest : Open arrest is nothing but confining one individual within the camp against his freedom.
Close Arrest : Detain an individual against his will and it is made as punishment for any offence one has committed, (or) to restrict one from committing any offence, (or) to prevent one from removing the evidence of crime, which is being used to prove in the court of law against the individual.
What is arrest?
As per Criminal Procedural Code of India, Arrest means the taking, seizing, or detaining of the person of another, either by touching, or putting hands on him, or by any act which indicates an intention to take him into custody, and subjects the person arrested to the actual control and will of the person making the arrest.
Chapter V and section 41 to 59 of Criminal Procedure Code 1973, deals with Arrest of Persons.
As per section 41 (1) Cr.P.C, any police officer may, without an order from a Magistrate and without a warrant, arrest any person,
(a) who has been concerned in any cognizable offence, or a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists; or
(b) who has in his possession of any implement of house breaking; or
(c) who has been proclaimed as an offender or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody;
(f) reasonably suspected of being a deserter from any of the Armed Forces.
As per section 42 of Cr.P.C., any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence, refuses on demand of such officer to give his name and residence, can be arrested.
As per section 50 of Cr.P.C., person arrested without warrant has to be informed about the grounds of his arrest and about his entitlement regarding bail.
As per section 53 of Cr.P.C., when a person is arrested and if there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector (and for any person acting in good faith in his aid and his direction), to make such an examination of a person arrested as is reasonably necessary, and to use such force as is reasonably necessary for that purpose.
When a person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
As per section 56 of Cr.P.C., A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction of the case or before the officer in-charge of a police station.
As per section 57 of Cr.P.C., No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 16, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.
As per section 151 of Cr.P.C., a person can also be arrested to prevent commission of cognizable offences.
What is meant by "Bailable / Non-bailable offences"?
1. Under the Code of Criminal Procedure 1973 (first shedule), offences have been classified as ‘bailable’ and ‘non-bailable’ offences.
2. In the case of bailable offences, it is binding upon the investigating officer to grant bail. However, in case of a non-bailable offence, the police can not grant bail and bail can be granted by a Judicial Magistrate/Judge only.
3. In case of bailable offences, if the accused produces proper surety, and fulfills other conditions, it is binding upon the Investigating officer to grant bail.
4. In the case of a non-bailable offence, the Investigating Officer must produce the accused before the Judicial Magistrate / Judge concerned within 24 hours of his arrest. At that time, the accused has a right to apply for bail.
26th February 2012 From India, Kumbakonam
Offence : Offence means any ACT or OMISSION made, which is unlawful and punishable by any law for the time being in force and includes any act in respect of which a complaint may be made even under Section 20 of Cattle Trespass Act, 1871.
Cognizable & Non-cognizable Offence
The first schedule of Code of Criminal Procedure defines the Cognizable Offence as "In criminal justice system of India, a cognizable offence is a criminal offence in which the police is empowered to register an FIR, investigate, and arrest an accused without a court issued warrant."
A non-cognizable offence is an offence in which police can neither register an FIR, investigate, nor effect arrest without the express permission or directions from the court of Law.
26th February 2012 From India, Kumbakonam
Cognizable & Non-cognizable Offence
The first schedule of Code of Criminal Procedure defines the Cognizable Offence as "In criminal justice system of India, a cognizable offence is a criminal offence in which the police is empowered to register an FIR, investigate, and arrest an accused without a court issued warrant."
A non-cognizable offence is an offence in which police can neither register an FIR, investigate, nor effect arrest without the express permission or directions from the court of Law.
26th February 2012 From India, Kumbakonam
If we feel the House owner is charging more rent then we can approach the District Rent Control Board for fixation of Rent for the rental house.
In case the House owner is not accepting the rent in person, the tenant can send the Rent amount by way of Money Order and keep the record for the same. The Money order receipt and in case the owner not accepting the rent then that too can be recorded through postal department. The Rent can also be deposited with court in case the owner filed any suit against the tenant for vacating the house.
All transactions in Indian real estate sector are governed by various laws enacted by the Central Government of India and respective State governments. One such law is the RENTAL LAWS. These laws govern the rental of commercial and residential property and are necessary to enforce individual civil rights of both landlord and tenant and prevention of any kind of deceit.
The real estate scene in India is flawed by land market distortions. The most glaring ones include inflexible zoning, rent and tenancy laws. Zoning laws, rent controls and protected tenancies have been detrimental to the healthy rental trends in India. They have put a freeze to land in city centers that could be otherwise made available for new retail outlets and flats.
These laws also gloss over operational inefficiencies and scuttle competition. Tenants residing could not be evicted for along time and would not surrender their cheap tenancies on their own volition. The renovation of buildings could hardly happen. One such act favoring the rental property market in India is the Rent Control Act.
Rent Control Act
Rent Control Act was an attempt by the Government of India to eliminate the exploitation of tenants by landlords. Rent legislation tends to providing payment of fair rent to landlords and protection of tenants against eviction. But the allowances have been very generous and hence tenants residing in rental properties in India since 1947 continue to pay rents fixed then, irrespective of inflation and the realty boom.
The Rent Control Act has led to several adverse situations like languishing investment in rental housing, withdrawing of existing housing stock from the rental market, stagnating municipal property tax revenue. The rent control along with security of tenure has not given any encouragement to house owners to renovation their houses and most houses as a result have a worn out look.
Repeal of the Rent Control Act would lead to construction boom and meet the growing need for housing and aid employment generation. There will be more rational use of prime locations and will set off a continuous process of urban renewal.
In 1992, the Central Government proposed a model rent control legislation, which was meant for and circulated to all states. The model Act proposed modification of some of the existing provisions on inheritance of tenancy and also prescribed a rent level beyond which rent control could not apply. The New Delhi Rent Control Act that was passed in 1997 was based on this but failed to be notified due to resistance from traders who are sitting tenants. Very few states have introduced the model Act.
The new Maharashtra Rent Control Act, Delhi Rent Control Act, Tamil Nadu Rent Control Act, Karnataka Rent Control Act all has provisions for the dispute among the landlords and tenants. Each of the State Rent Act provides for fixation of Standard Rent as well decree for possession and provisions that lay down the satisfaction of the Court.
Rental Agreement is an integral part of rental law
Rent or lease of a residential or commercial property in India is subject to strict Indian laws. A mutual agreement on the terms and conditions of the rented property by the landlord and the tenant is required. In the present times, leasing a commercial space in India as opposed to owning commercial real estate is turning out to be a brilliant move.
Professional legal advice becomes a necessity as there are fewer tenant-friendly laws in the area of commercial leases, and no standard lease agreements. A lawyer’s help will be useful for making an informed decision in negotiating the best deal on a commercial lease as he/she can research zoning laws and local ordinances and inform you about local real estate market conditions and customs.
A rental agreement refers to a relationship between the landlord and the tenant. It is legally binding upon the parties. It may be brief, or it may have extra conditions or obligations. However, any changes or additions to a rental agreement should be maintained in writing. The rental agreement is a ‘Legal Form’ which has to be completed, signed and dated by the tenant and landlord. There are leases and rental forms for renting, leasing and managing residential rental properties. Both the parties must have access to the document once it is signed.
The landlord should get the agreement registered. The landlord must give the tenant a duplicate copy of the rental agreement, failing which the tenant is not obligated to pay rent until the tenant receives a copy of the rental agreement.
For a lease agreement, the terms of the lessee (tenant) and the lessor (landlord) when they enter into a lease agreement would include terms like the term of lease, deposit amount and monthly rentals. The lessor or the landlord should ensure the premises come back in the right shape in repossession.
There has been no damage to the tiling, plumbing, flooring or electrification and the premises are in the proper condition.
No major changes have been incorporated in the premises. If the lessee has made some changes, which are not acceptable to the lessor, the latter may ask him to undo the changes.
In the case of leasing of furnished premises, the condition of the furnishings is in proper condition.
All the electricity and telephone charges have been taken care of till the specified date by the lessee or tenant at the time of repossession.
On satisfactory fulfillment of all these aspects, the lessor should offer the refund the security deposit (if given) to the lessee offering vacant and peaceful possession of the premises.
In a Tenancy Agreement there is a transfer of interest and it establishes the non-eviction of the tenant by the owner except on the grounds of eviction mentioned under the Rent Act.
Under the Leave and License Agreement transfer of interest takes place on permission and the same can be terminated as per the terms of the agreement. The possession can be demanded back from the licensee. The label to the agreement could be Leave & License or Tenancy Agreement, but it is the intention of the party that counts. Documentation of the commercial lease is also an important rental law procedure.
In Conclusion
The rental laws in India need to be revised to protect the owner and his/her property from the tenant.
Special areas of focus should be on terminating old tenancies, removing constraints on increase of rentals and empowering owners in the sense of being able to reclaim their properties without any court proceedings.
The market forces should be allowed to determine the rental amounts and the owner must have full protection for his/her property. This will go a long way in providing security to the landlord and also reduce the deposit amount required with the lease agreements.
If these laws are enacted and strictly enforced, there is every chance that more investors will want to enter the real estate market to utilize the rental fees as income. This is especially true for the commercial sector. The tax laws also need to be revised so that renting of properties becomes a financially viable option. Amendments in the Rent Acts of several states are a progressive move.
14th March 2012 From India, Kumbakonam
In case the House owner is not accepting the rent in person, the tenant can send the Rent amount by way of Money Order and keep the record for the same. The Money order receipt and in case the owner not accepting the rent then that too can be recorded through postal department. The Rent can also be deposited with court in case the owner filed any suit against the tenant for vacating the house.
All transactions in Indian real estate sector are governed by various laws enacted by the Central Government of India and respective State governments. One such law is the RENTAL LAWS. These laws govern the rental of commercial and residential property and are necessary to enforce individual civil rights of both landlord and tenant and prevention of any kind of deceit.
The real estate scene in India is flawed by land market distortions. The most glaring ones include inflexible zoning, rent and tenancy laws. Zoning laws, rent controls and protected tenancies have been detrimental to the healthy rental trends in India. They have put a freeze to land in city centers that could be otherwise made available for new retail outlets and flats.
These laws also gloss over operational inefficiencies and scuttle competition. Tenants residing could not be evicted for along time and would not surrender their cheap tenancies on their own volition. The renovation of buildings could hardly happen. One such act favoring the rental property market in India is the Rent Control Act.
Rent Control Act
Rent Control Act was an attempt by the Government of India to eliminate the exploitation of tenants by landlords. Rent legislation tends to providing payment of fair rent to landlords and protection of tenants against eviction. But the allowances have been very generous and hence tenants residing in rental properties in India since 1947 continue to pay rents fixed then, irrespective of inflation and the realty boom.
The Rent Control Act has led to several adverse situations like languishing investment in rental housing, withdrawing of existing housing stock from the rental market, stagnating municipal property tax revenue. The rent control along with security of tenure has not given any encouragement to house owners to renovation their houses and most houses as a result have a worn out look.
Repeal of the Rent Control Act would lead to construction boom and meet the growing need for housing and aid employment generation. There will be more rational use of prime locations and will set off a continuous process of urban renewal.
In 1992, the Central Government proposed a model rent control legislation, which was meant for and circulated to all states. The model Act proposed modification of some of the existing provisions on inheritance of tenancy and also prescribed a rent level beyond which rent control could not apply. The New Delhi Rent Control Act that was passed in 1997 was based on this but failed to be notified due to resistance from traders who are sitting tenants. Very few states have introduced the model Act.
The new Maharashtra Rent Control Act, Delhi Rent Control Act, Tamil Nadu Rent Control Act, Karnataka Rent Control Act all has provisions for the dispute among the landlords and tenants. Each of the State Rent Act provides for fixation of Standard Rent as well decree for possession and provisions that lay down the satisfaction of the Court.
Rental Agreement is an integral part of rental law
Rent or lease of a residential or commercial property in India is subject to strict Indian laws. A mutual agreement on the terms and conditions of the rented property by the landlord and the tenant is required. In the present times, leasing a commercial space in India as opposed to owning commercial real estate is turning out to be a brilliant move.
Professional legal advice becomes a necessity as there are fewer tenant-friendly laws in the area of commercial leases, and no standard lease agreements. A lawyer’s help will be useful for making an informed decision in negotiating the best deal on a commercial lease as he/she can research zoning laws and local ordinances and inform you about local real estate market conditions and customs.
A rental agreement refers to a relationship between the landlord and the tenant. It is legally binding upon the parties. It may be brief, or it may have extra conditions or obligations. However, any changes or additions to a rental agreement should be maintained in writing. The rental agreement is a ‘Legal Form’ which has to be completed, signed and dated by the tenant and landlord. There are leases and rental forms for renting, leasing and managing residential rental properties. Both the parties must have access to the document once it is signed.
The landlord should get the agreement registered. The landlord must give the tenant a duplicate copy of the rental agreement, failing which the tenant is not obligated to pay rent until the tenant receives a copy of the rental agreement.
For a lease agreement, the terms of the lessee (tenant) and the lessor (landlord) when they enter into a lease agreement would include terms like the term of lease, deposit amount and monthly rentals. The lessor or the landlord should ensure the premises come back in the right shape in repossession.
There has been no damage to the tiling, plumbing, flooring or electrification and the premises are in the proper condition.
No major changes have been incorporated in the premises. If the lessee has made some changes, which are not acceptable to the lessor, the latter may ask him to undo the changes.
In the case of leasing of furnished premises, the condition of the furnishings is in proper condition.
All the electricity and telephone charges have been taken care of till the specified date by the lessee or tenant at the time of repossession.
On satisfactory fulfillment of all these aspects, the lessor should offer the refund the security deposit (if given) to the lessee offering vacant and peaceful possession of the premises.
In a Tenancy Agreement there is a transfer of interest and it establishes the non-eviction of the tenant by the owner except on the grounds of eviction mentioned under the Rent Act.
Under the Leave and License Agreement transfer of interest takes place on permission and the same can be terminated as per the terms of the agreement. The possession can be demanded back from the licensee. The label to the agreement could be Leave & License or Tenancy Agreement, but it is the intention of the party that counts. Documentation of the commercial lease is also an important rental law procedure.
In Conclusion
The rental laws in India need to be revised to protect the owner and his/her property from the tenant.
Special areas of focus should be on terminating old tenancies, removing constraints on increase of rentals and empowering owners in the sense of being able to reclaim their properties without any court proceedings.
The market forces should be allowed to determine the rental amounts and the owner must have full protection for his/her property. This will go a long way in providing security to the landlord and also reduce the deposit amount required with the lease agreements.
If these laws are enacted and strictly enforced, there is every chance that more investors will want to enter the real estate market to utilize the rental fees as income. This is especially true for the commercial sector. The tax laws also need to be revised so that renting of properties becomes a financially viable option. Amendments in the Rent Acts of several states are a progressive move.
14th March 2012 From India, Kumbakonam
good for advocates.u can add legal phrases daily.some citations consisting or explaining such words,phrases.
6th April 2012 From United States , Los Angeles
6th April 2012 From United States , Los Angeles
Leave with Wages
Section 79 of Factories Act, 1948 provides Annual leave with wages for the workers engaged by the establishment registered under Factories Act explains as under.
(1) Every worker who has worked for a period of 240 days or more in a factory during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at the rate of :-
if an adult, one day for every twenty days of work performed by him during the previous calendar year ;
if a child, one day for every fifteen days of work performed by him during the previous calendar year.
Explanation1: For the purposes of this sub-section :-
any days of lay-off; by agreement or contract or as permissible under the standing orders;
in the case of a female worker, maternity leave for any number of days not exceeding twelve weeks; and
the leave earned in the year prior to that in which the leave is enjoyed; shall be deemed to be days on which the worker has worked in a factory for the purpose of computation of the period of 240 days or more, but he shall not earn leave for these days.
Explanation 2: The leave admissible under this sub-section shall be exclusive of all holidays whether occurring during or at either end of the period of leave.
(2) A worker whose service commences otherwise than on the first day of January shall be entitled to leave with wages at the rate laid in clause (i) or, as the case may be, clause (ii) of sub-section (1) if he has worked for two-thirds of the total number of days in the remainder of the calendar year.
(3) If a worker is discharged or dismissed from service or quits his employment or is superannuated or dies while in service,during the course of the calendar year, he or his heir or nominee, as the case may be,shall be entitled to wages in lieu of the quantum of leave to which he was entitled immediately before the discharge, dismissal, quitting of employment, superannuating or death calculated at the rates specified in sub-section (1),even if he had not worked for the entire period specified i sub- section(1) or sub-section(2) making him eligible to avail of such leave, and such payment shall be made-
where the worker is discharged or dismissed or quits employment, before the expiry of the second working day from the date of such discharge, dismissal or quitting; and where the worker is superannuated or dies while in service, before the expiry of two months from the date of such superannuating or death.]
(4) In calculating leave under this section, fraction of leave of half a day or more shall be treated as one full day's leave and fraction of less than a half a day shall be omitted.
(5) If a worker does not in any one calendar year take the whole of the leave allowed to him under sub-section (1) or sub-section (2),as the case may be, any leave not taken by him shall be added to the leave to be allowed to him in the succeeding calendar year :
Provided that the total number of days of leave that may be carried forward to a succeeding year shall not exceed thirty in the case of an adult or forty in the case of a child :
Provided further that a worker, who has applied for leave with wages but has not been given such leave in accordance with any scheme laid down in sub- sections (8) and (9) 27[or in contravention of sub-section (10)] shall be entitled to carry 2 forward the 28[leave refused] without any limit.
(6) A worker may at any time apply in writing to the manager of a factory not less than fifteen days before the date on which he wishes his leave to begin, to take all the leave or any portion thereof allowable to him during the calendar year :
Provided that the application shall be made not less than thirty days before the date on which the worker wishes his leave to begin, if he is employed in a public utility service as defined in clause (n) of section 2 of the Industrial Disputes Act, 1947 (XIV of 1947) :
Provided further that the number of times in which leave may be taken during any year shall not exceed three.
(7) If a worker wants to avail himself of the leave with wages due to him to cover a period of illness, he shall be granted such leave even if the application for leave is not made within the time specified in sub-section (6); and in such a case wages as admissible under section 81 shall be paid not later than fifteen days, or in the case of a public utility service not later than thirty days from the date of the application for leave.
(8) For the purpose of ensuring the continuity of work, the occupier or manager of the factory, in agreement with the Works Committee of the factory constituted under section 3 of the Industrial Disputed Act, 1947 (XIV of 1947), or a similar Committee under any other Act or if there is no such Works Committee or a similar Committee in the factory, in agreement with the representatives of the workers therein chosen in the prescribed manner, may lodge with Chief Inspector a scheme in writing whereby the grant of the leave allowable under this section may be regulated.
(9) A scheme lodged under sub-section (8) shall be displayed at some conspicuous and convenient places in the factory and shall be in force for a period of twelve months from the date on which it comes into force, and may thereafter be renewed with or without modification for a further period of twelve months at a time, by the manager in agreement with the Works Committee or a similar Committee, or as the case may be,in agreement with the representatives of the workers as specified in sub-section (8), and a notice of renewal shall be sent to the Chief Inspector before it is renewed.
(10) An application for leave which does not contravene the provisions of sub-section (6) shall not be refused, unless refusal is in accordance with the scheme for the time being in operation under sub-sections (8) and (9).
(11) If the employment of a worker who is entitled to leave under sub-section(1) or sub-section (2), as the case may be, is terminated by the occupier before he has taken the entire leave to which he is entitled, or if having applied for and having not been granted such leave, the worker quits his employment before he has taken the leave, the occupier of the factory shall pay him the amount payable under section 80 in respect of the leave not taken,and such payment shall be made, where the employment of the worker is terminated by the occupier, before the expiry of the second working day after such termination, and where a worker who quits his employment, on or before the next pay day.
(12) The unavailed leave of a worker shall not be taken into consideration in computing the period of any notice required to be given before discharge or dismissal.
14th April 2012 From India, Kumbakonam
Section 79 of Factories Act, 1948 provides Annual leave with wages for the workers engaged by the establishment registered under Factories Act explains as under.
(1) Every worker who has worked for a period of 240 days or more in a factory during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at the rate of :-
if an adult, one day for every twenty days of work performed by him during the previous calendar year ;
if a child, one day for every fifteen days of work performed by him during the previous calendar year.
Explanation1: For the purposes of this sub-section :-
any days of lay-off; by agreement or contract or as permissible under the standing orders;
in the case of a female worker, maternity leave for any number of days not exceeding twelve weeks; and
the leave earned in the year prior to that in which the leave is enjoyed; shall be deemed to be days on which the worker has worked in a factory for the purpose of computation of the period of 240 days or more, but he shall not earn leave for these days.
Explanation 2: The leave admissible under this sub-section shall be exclusive of all holidays whether occurring during or at either end of the period of leave.
(2) A worker whose service commences otherwise than on the first day of January shall be entitled to leave with wages at the rate laid in clause (i) or, as the case may be, clause (ii) of sub-section (1) if he has worked for two-thirds of the total number of days in the remainder of the calendar year.
(3) If a worker is discharged or dismissed from service or quits his employment or is superannuated or dies while in service,during the course of the calendar year, he or his heir or nominee, as the case may be,shall be entitled to wages in lieu of the quantum of leave to which he was entitled immediately before the discharge, dismissal, quitting of employment, superannuating or death calculated at the rates specified in sub-section (1),even if he had not worked for the entire period specified i sub- section(1) or sub-section(2) making him eligible to avail of such leave, and such payment shall be made-
where the worker is discharged or dismissed or quits employment, before the expiry of the second working day from the date of such discharge, dismissal or quitting; and where the worker is superannuated or dies while in service, before the expiry of two months from the date of such superannuating or death.]
(4) In calculating leave under this section, fraction of leave of half a day or more shall be treated as one full day's leave and fraction of less than a half a day shall be omitted.
(5) If a worker does not in any one calendar year take the whole of the leave allowed to him under sub-section (1) or sub-section (2),as the case may be, any leave not taken by him shall be added to the leave to be allowed to him in the succeeding calendar year :
Provided that the total number of days of leave that may be carried forward to a succeeding year shall not exceed thirty in the case of an adult or forty in the case of a child :
Provided further that a worker, who has applied for leave with wages but has not been given such leave in accordance with any scheme laid down in sub- sections (8) and (9) 27[or in contravention of sub-section (10)] shall be entitled to carry 2 forward the 28[leave refused] without any limit.
(6) A worker may at any time apply in writing to the manager of a factory not less than fifteen days before the date on which he wishes his leave to begin, to take all the leave or any portion thereof allowable to him during the calendar year :
Provided that the application shall be made not less than thirty days before the date on which the worker wishes his leave to begin, if he is employed in a public utility service as defined in clause (n) of section 2 of the Industrial Disputes Act, 1947 (XIV of 1947) :
Provided further that the number of times in which leave may be taken during any year shall not exceed three.
(7) If a worker wants to avail himself of the leave with wages due to him to cover a period of illness, he shall be granted such leave even if the application for leave is not made within the time specified in sub-section (6); and in such a case wages as admissible under section 81 shall be paid not later than fifteen days, or in the case of a public utility service not later than thirty days from the date of the application for leave.
(8) For the purpose of ensuring the continuity of work, the occupier or manager of the factory, in agreement with the Works Committee of the factory constituted under section 3 of the Industrial Disputed Act, 1947 (XIV of 1947), or a similar Committee under any other Act or if there is no such Works Committee or a similar Committee in the factory, in agreement with the representatives of the workers therein chosen in the prescribed manner, may lodge with Chief Inspector a scheme in writing whereby the grant of the leave allowable under this section may be regulated.
(9) A scheme lodged under sub-section (8) shall be displayed at some conspicuous and convenient places in the factory and shall be in force for a period of twelve months from the date on which it comes into force, and may thereafter be renewed with or without modification for a further period of twelve months at a time, by the manager in agreement with the Works Committee or a similar Committee, or as the case may be,in agreement with the representatives of the workers as specified in sub-section (8), and a notice of renewal shall be sent to the Chief Inspector before it is renewed.
(10) An application for leave which does not contravene the provisions of sub-section (6) shall not be refused, unless refusal is in accordance with the scheme for the time being in operation under sub-sections (8) and (9).
(11) If the employment of a worker who is entitled to leave under sub-section(1) or sub-section (2), as the case may be, is terminated by the occupier before he has taken the entire leave to which he is entitled, or if having applied for and having not been granted such leave, the worker quits his employment before he has taken the leave, the occupier of the factory shall pay him the amount payable under section 80 in respect of the leave not taken,and such payment shall be made, where the employment of the worker is terminated by the occupier, before the expiry of the second working day after such termination, and where a worker who quits his employment, on or before the next pay day.
(12) The unavailed leave of a worker shall not be taken into consideration in computing the period of any notice required to be given before discharge or dismissal.
14th April 2012 From India, Kumbakonam
Force Majeure
Force Majeure means Superior Force or Greater Force or even mentioned as Act of God which is beyond the human control i.e., earthquake, storm, flood, etc. Normally in insurance to make exemption clause for covering the insurance for the properties, the insurance companies uses the phrase in their offer documents.
Force Majeure literally means "greater force". These clauses excuse a party from liability if some unforseen event beyond the control of that party prevents it from performing its obligations under the contract. Typically, force majeure clauses cover natural disasters or other "Acts of God", war, or the failure of third parties--such as suppliers and subcontractors--to perform their obligations to the contracting party. It is important to remember that force majeure clauses are intended to excuse a party only if the failure to perform could not be avoided by the exercise of due care by that party.
When negotiating force majeure clauses, make sure that the clause applies equally to all parties to the agreement--not just the licensor. Also, it is helpful if the clause sets forth some specific examples of acts that will excuse performance under the clause, such as wars, natural disasters, and other major events that are clearly outside a party's control. Inclusion of examples will help to make clear the parties' intent that such clauses are not intended to apply to excuse failures to perform for reasons within the control of the parties.
14th April 2012 From India, Kumbakonam
Force Majeure means Superior Force or Greater Force or even mentioned as Act of God which is beyond the human control i.e., earthquake, storm, flood, etc. Normally in insurance to make exemption clause for covering the insurance for the properties, the insurance companies uses the phrase in their offer documents.
Force Majeure literally means "greater force". These clauses excuse a party from liability if some unforseen event beyond the control of that party prevents it from performing its obligations under the contract. Typically, force majeure clauses cover natural disasters or other "Acts of God", war, or the failure of third parties--such as suppliers and subcontractors--to perform their obligations to the contracting party. It is important to remember that force majeure clauses are intended to excuse a party only if the failure to perform could not be avoided by the exercise of due care by that party.
When negotiating force majeure clauses, make sure that the clause applies equally to all parties to the agreement--not just the licensor. Also, it is helpful if the clause sets forth some specific examples of acts that will excuse performance under the clause, such as wars, natural disasters, and other major events that are clearly outside a party's control. Inclusion of examples will help to make clear the parties' intent that such clauses are not intended to apply to excuse failures to perform for reasons within the control of the parties.
14th April 2012 From India, Kumbakonam
hi! bhaskar, u have not quoted the correct meaning of res-judicata. it is applicable in civil matters. in criminal matters it is called ' double jeopardy '. pl. confirm and rectify, regards, shankar.
23rd May 2012 From United States , Los Angeles
23rd May 2012 From United States , Los Angeles
Double Jeopardy
A partial protection against double jeopardy is a Fundamental Rights in India guaranteed under Article 20 (2) of the Constitution of India. This states that ""No person shall be prosecuted and punished for the same offence more than once". Article 20, Section 2 of the Constitution of India reads, "No person shall be prosecuted and punished for the same offence more than once."
This provision enshrines the concept of ''autrefois convict'', that no one convicted of an offence can be tried or punished a second time. However it does not extend to ''autrefois acquit'', and so if a person is acquitted of a crime he can be retried. In India, protection against ''autrefois acquit'' is a statuatory right, not a fundamental right. Such protection is provided by provisions of the Code of Criminal Procedure rather than by the Constitution.
In Simple term it can be explained as "A second prosecution for the same offense after acquittal or conviction or multiple punishments for same offense. The evil sought to be avoided by prohibiting double jeopardy is double trial and double conviction, not necessarily double punishment."
9th August 2012 From India, Kumbakonam
A partial protection against double jeopardy is a Fundamental Rights in India guaranteed under Article 20 (2) of the Constitution of India. This states that ""No person shall be prosecuted and punished for the same offence more than once". Article 20, Section 2 of the Constitution of India reads, "No person shall be prosecuted and punished for the same offence more than once."
This provision enshrines the concept of ''autrefois convict'', that no one convicted of an offence can be tried or punished a second time. However it does not extend to ''autrefois acquit'', and so if a person is acquitted of a crime he can be retried. In India, protection against ''autrefois acquit'' is a statuatory right, not a fundamental right. Such protection is provided by provisions of the Code of Criminal Procedure rather than by the Constitution.
In Simple term it can be explained as "A second prosecution for the same offense after acquittal or conviction or multiple punishments for same offense. The evil sought to be avoided by prohibiting double jeopardy is double trial and double conviction, not necessarily double punishment."
9th August 2012 From India, Kumbakonam
Contract - A contract is an agreement entered into voluntarily by two parties or more with the intention of creating a legal obligation, which may have elements in writing, though contracts can be made orally.
The elements of a contract are offer, acceptance, intention to create legal relations, and consideration.
Offer and acceptance
The most important feature of a contract is that one party makes an offer for an arrangement that another accepts. This can be called a concurrence of wills or consensus ad idem (meeting of the minds) of two or more parties. The concept is somewhat contested. The obvious objection is that a court cannot read minds and the existence or otherwise of agreement is judged objectively, with only limited room for questioning subjective intention: see Smith v. Hughes. Richard Austen-Baker has suggested that the perpetuation of the idea of 'meeting of minds' may come from a misunderstanding of the Latin term 'consensus ad idem', which actually means 'agreement to the [same] thing'. There must be evidence that the parties had each, from an objective perspective, engaged in conduct manifesting their assent, and a contract will be formed when the parties have met such a requirement. An objective perspective means that it is only necessary that somebody gives the impression of offering or accepting contractual terms in the eyes of a reasonable person, not that they actually did want to form a contract.
The case of Carlill v Carbolic Smoke Ball Company is an example of a 'unilateral contract'. The term unilateral contract is used in contract law although ultimately there is an offerer and an offeree and a consideration (which may be an act), and in Australian Mills v The Commonwealth, the High Court of Australia considered the term "unscientific and misleading". Obligations are only imposed upon one party upon acceptance by performance of a condition. In the United States, the general rule is that in "case of doubt, an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering the performance, as the offeree chooses."
Offer and acceptance does not always need to be expressed orally or in writing. An implied contract is one in which some of the terms are not expressed in words. This can take two forms. A contract which is implied in fact is one in which the circumstances imply that parties have reached an agreement even though they have not done so expressly. For example, by going to a doctor for a checkup, a patient agrees that he will pay a fair price for the service. If one refuses to pay after being examined, the patient has breached a contract implied in fact. A contract which is implied in law is also called a quasi-contract, because it is not in fact a contract; rather, it is a means for the courts to remedy situations in which one party would be unjustly enriched were he or she not required to compensate the other. For example, a plumber accidentally installs a sprinkler system in the lawn of the wrong house. The owner of the house had learned the previous day that his neighbor was getting new sprinklers. That morning, he sees the plumber installing them in his lawn. Pleased at the mistake, he says nothing, and then refuses to pay when the plumber delivers the bill. Will the man be held liable for payment? Yes, if it could be proven that the man knew that the sprinklers were being installed mistakenly, the court would make him pay because of a quasi-contract. If that knowledge could not be proven, he would not be liable. Such a claim is also referred to as "quantum meruit".
Consideration
Consideration is something of value given by a promissor to a promisee in exchange for something of value given by a promisee to a promissor. Typically, the thing of value is a payment, although it may be an act, or forbearance to act, when one is privileged to do so, such as an adult refraining from smoking.
Consideration consists of a legal detriment and a bargain. A legal detriment is a promise to do something or refrain from doing something that you have the legal right to do, or voluntarily doing or refraining from doing something, in the context of an agreement. A bargain is something the promisor (the party making promise or offer) wants, usually being one of the legal detriments. The legal detriment and bargain principles come together in consideration and create an exchange relationship, where both parties agree to exchange something that the other wishes to have.
The purpose of consideration is to ensure that there is a present bargain, that the promises of the parties are reciprocally induced. The classic theory of consideration required that a promise be of detriment to the promissor or benefit to the promisee. This is no longer the case in the USA; typically, courts will look to a bargained-for exchange, rather than making inquiries into whether an individual was subject to a detriment or not. The emphasis is on the bargaining process, not an inquiry into the relative value of consideration. This principle was articulated in Hamer v. Sidway. Yet in cases of ambiguity, courts will occasionally turn to the common law benefit/detriment analysis to aid in the determination of the enforceability of a contract.
The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific performance of the contract or an injunction. Both of these remedies award the party at loss the "benefit of the bargain" or expectation damages, which are greater than mere reliance damages, as in promissory estoppel. The parties may be natural persons or juristic persons. A contract is a legally enforceable promise or undertaking that something will or will not occur. The word promise can be used as a legal synonym for contract, although care is required as a promise may not have the full standing of a contract, as when it is an agreement without consideration.
22nd August 2012 From India, Kumbakonam
The elements of a contract are offer, acceptance, intention to create legal relations, and consideration.
Offer and acceptance
The most important feature of a contract is that one party makes an offer for an arrangement that another accepts. This can be called a concurrence of wills or consensus ad idem (meeting of the minds) of two or more parties. The concept is somewhat contested. The obvious objection is that a court cannot read minds and the existence or otherwise of agreement is judged objectively, with only limited room for questioning subjective intention: see Smith v. Hughes. Richard Austen-Baker has suggested that the perpetuation of the idea of 'meeting of minds' may come from a misunderstanding of the Latin term 'consensus ad idem', which actually means 'agreement to the [same] thing'. There must be evidence that the parties had each, from an objective perspective, engaged in conduct manifesting their assent, and a contract will be formed when the parties have met such a requirement. An objective perspective means that it is only necessary that somebody gives the impression of offering or accepting contractual terms in the eyes of a reasonable person, not that they actually did want to form a contract.
The case of Carlill v Carbolic Smoke Ball Company is an example of a 'unilateral contract'. The term unilateral contract is used in contract law although ultimately there is an offerer and an offeree and a consideration (which may be an act), and in Australian Mills v The Commonwealth, the High Court of Australia considered the term "unscientific and misleading". Obligations are only imposed upon one party upon acceptance by performance of a condition. In the United States, the general rule is that in "case of doubt, an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering the performance, as the offeree chooses."
Offer and acceptance does not always need to be expressed orally or in writing. An implied contract is one in which some of the terms are not expressed in words. This can take two forms. A contract which is implied in fact is one in which the circumstances imply that parties have reached an agreement even though they have not done so expressly. For example, by going to a doctor for a checkup, a patient agrees that he will pay a fair price for the service. If one refuses to pay after being examined, the patient has breached a contract implied in fact. A contract which is implied in law is also called a quasi-contract, because it is not in fact a contract; rather, it is a means for the courts to remedy situations in which one party would be unjustly enriched were he or she not required to compensate the other. For example, a plumber accidentally installs a sprinkler system in the lawn of the wrong house. The owner of the house had learned the previous day that his neighbor was getting new sprinklers. That morning, he sees the plumber installing them in his lawn. Pleased at the mistake, he says nothing, and then refuses to pay when the plumber delivers the bill. Will the man be held liable for payment? Yes, if it could be proven that the man knew that the sprinklers were being installed mistakenly, the court would make him pay because of a quasi-contract. If that knowledge could not be proven, he would not be liable. Such a claim is also referred to as "quantum meruit".
Consideration
Consideration is something of value given by a promissor to a promisee in exchange for something of value given by a promisee to a promissor. Typically, the thing of value is a payment, although it may be an act, or forbearance to act, when one is privileged to do so, such as an adult refraining from smoking.
Consideration consists of a legal detriment and a bargain. A legal detriment is a promise to do something or refrain from doing something that you have the legal right to do, or voluntarily doing or refraining from doing something, in the context of an agreement. A bargain is something the promisor (the party making promise or offer) wants, usually being one of the legal detriments. The legal detriment and bargain principles come together in consideration and create an exchange relationship, where both parties agree to exchange something that the other wishes to have.
The purpose of consideration is to ensure that there is a present bargain, that the promises of the parties are reciprocally induced. The classic theory of consideration required that a promise be of detriment to the promissor or benefit to the promisee. This is no longer the case in the USA; typically, courts will look to a bargained-for exchange, rather than making inquiries into whether an individual was subject to a detriment or not. The emphasis is on the bargaining process, not an inquiry into the relative value of consideration. This principle was articulated in Hamer v. Sidway. Yet in cases of ambiguity, courts will occasionally turn to the common law benefit/detriment analysis to aid in the determination of the enforceability of a contract.
The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific performance of the contract or an injunction. Both of these remedies award the party at loss the "benefit of the bargain" or expectation damages, which are greater than mere reliance damages, as in promissory estoppel. The parties may be natural persons or juristic persons. A contract is a legally enforceable promise or undertaking that something will or will not occur. The word promise can be used as a legal synonym for contract, although care is required as a promise may not have the full standing of a contract, as when it is an agreement without consideration.
22nd August 2012 From India, Kumbakonam
Valid Contract
Valid contract is an agreement which has all the essential elements of a contract is called a valid contract. A valid contract can be enforced by law.
Essentials of Valid Contract
According to Section 10 of Indian Contract Act, "All agreements are contracts, if they are made by the free consent of the parties, competent to contract, for a lawful consideration with a lawful object, and not hereby expressly to be void."
Essential Elements of a Valid Contract are:
1. Proper offer and proper acceptance. There must be an agreement based on a lawful offer made by person to another and lawful acceptance of that offer made by the latter. Section 3 to 9 of the contract act, 1872 lay down the rules for making valid acceptance
2. Lawful consideration. An agreement to form a valid contract should be supported by consideration. Consideration means “something in return” (quid pro quo). It can be cash, kind, an act or abstinence. It can be past, present or future. However, consideration should be real and lawful.
3. Competent to contract or capacity. In order to make a valid contract the parties to it must be competent to be contracted. According to section 11 of the Contract Act, a person is considered to be competent to contract if he satisfies the following criterion:
The person has reached the age of maturity.
The person is of sound mind.
The person is not disqualified from contracting by any law.
4. Free Consent. To constitute a valid contract there must be free and genuine consent of the parties to the contract. It should not be obtained by misrepresentation, fraud, coercion, undue influence or mistake.
5. Lawful Object and Agreement. The object of the agreement must not be illegal or unlawful.
6. Agreement not declared void or illegal. Agreements which have been expressly declared void or illegal by law are not enforceable at law; hence they do not constitute a valid contract.
7. Intention To Create Legal Relationships. When the two parties enter in to an agreement,there must be intention to create a legal relationship between them. If there is no such intention on the part of the parties, then there is no contract between them. Agreements of a social or domestic nature do not contemplate legal relationship; as such they are not contracts.
8. Certainty, Possibility Of Performance
9. Legal Formalities by surity
29th August 2012 From India, Kumbakonam
Valid contract is an agreement which has all the essential elements of a contract is called a valid contract. A valid contract can be enforced by law.
Essentials of Valid Contract
According to Section 10 of Indian Contract Act, "All agreements are contracts, if they are made by the free consent of the parties, competent to contract, for a lawful consideration with a lawful object, and not hereby expressly to be void."
Essential Elements of a Valid Contract are:
1. Proper offer and proper acceptance. There must be an agreement based on a lawful offer made by person to another and lawful acceptance of that offer made by the latter. Section 3 to 9 of the contract act, 1872 lay down the rules for making valid acceptance
2. Lawful consideration. An agreement to form a valid contract should be supported by consideration. Consideration means “something in return” (quid pro quo). It can be cash, kind, an act or abstinence. It can be past, present or future. However, consideration should be real and lawful.
3. Competent to contract or capacity. In order to make a valid contract the parties to it must be competent to be contracted. According to section 11 of the Contract Act, a person is considered to be competent to contract if he satisfies the following criterion:
The person has reached the age of maturity.
The person is of sound mind.
The person is not disqualified from contracting by any law.
4. Free Consent. To constitute a valid contract there must be free and genuine consent of the parties to the contract. It should not be obtained by misrepresentation, fraud, coercion, undue influence or mistake.
5. Lawful Object and Agreement. The object of the agreement must not be illegal or unlawful.
6. Agreement not declared void or illegal. Agreements which have been expressly declared void or illegal by law are not enforceable at law; hence they do not constitute a valid contract.
7. Intention To Create Legal Relationships. When the two parties enter in to an agreement,there must be intention to create a legal relationship between them. If there is no such intention on the part of the parties, then there is no contract between them. Agreements of a social or domestic nature do not contemplate legal relationship; as such they are not contracts.
8. Certainty, Possibility Of Performance
9. Legal Formalities by surity
29th August 2012 From India, Kumbakonam
Types of Contract The types of contract can be segretated as per (a) On the Basis of Validity, (b) On the Basis of Formation and (c) On the Basis of Performance.
On the basis of Validity
1. Valid contract: An agreement which has all the essential elements of a contract is called a valid contract. A valid contract can be enforced by law.
2. Void contract[Section 2(j)]: A void contract is a contract which ceases to be enforceable by law. A contract when originally entered into may be valid and binding on the parties. It may subsequently become void. -- There are many judgments which have stated that where any crime has been converted into a "Source of Profit" or if any act to be done under any contract is opposed to "Public Policy" under any contract—than that contract itself cannot be enforced under the law-
3. Voidable contract[Section 2(i)]: An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of other or others, is a voidable contract. If the essential element of free consent is missing in a contract, the law confers right on the aggrieved party either to reject the contract or to accept it. However, the contract continues to be good and enforceable unless it is repudiated by the aggrieved party.
4. Illegal contract: A contract is illegal if it is forbidden by law; or is of such nature that, if permitted, would defeat the provisions of any law or is fraudulent; or involves or implies injury to a person or property of another, or court regards it as immoral or opposed to public policy. These agreements are punishable by law. These are void-ab-initio.
“All illegal agreements are void agreements but all void agreements are not illegal.”
5. Unenforceable contract: Where a contract is good in substance but because of some technical defect cannot be enforced by law is called unenforceable contract. These contracts are neither void nor voidable.
On the basis of formation
1. Express contract: Where the terms of the contract are expressly agreed upon in words (written or spoken) at the time of formation, the contract is said to be express contract.
2. Implied contract: An implied contract is one which is inferred from the acts or conduct of the parties or from the circumstances of the cases. Where a proposal or acceptance is made otherwise than in words, promise is said to be implied.
3. Quasi contract: A quasi contract is created by law. Thus, quasi contracts are strictly not contracts as there is no intention of parties to enter into a contract. It is legal obligation which is imposed on a party who is required to perform it. A quasi contract is based on the principle that a person shall not be allowed to enrich himself at the expense of another.
On the basis of performance
1. Executed contract: An executed contract is one in which both the parties have performed their respective obligation.
2. Executory contract: An executory contract is one where one or both the parties to the contract have still to perform their obligations in future. Thus, a contract which is partially performed or wholly unperformed is termed as executory contract.
3. Unilateral contract: A unilateral contract is one in which only one party has to perform his obligation at the time of the formation of the contract, the other party having fulfilled his obligation at the time of the contract or before the contract comes into existence.
4. Bilateral contract: A bilateral contract is one in which the obligation on both the parties to the contract is outstanding at the time of the formation of the contract. Bilateral contracts are also known as contracts with executory consideration.
29th August 2012 From India, Kumbakonam
On the basis of Validity
1. Valid contract: An agreement which has all the essential elements of a contract is called a valid contract. A valid contract can be enforced by law.
2. Void contract[Section 2(j)]: A void contract is a contract which ceases to be enforceable by law. A contract when originally entered into may be valid and binding on the parties. It may subsequently become void. -- There are many judgments which have stated that where any crime has been converted into a "Source of Profit" or if any act to be done under any contract is opposed to "Public Policy" under any contract—than that contract itself cannot be enforced under the law-
3. Voidable contract[Section 2(i)]: An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of other or others, is a voidable contract. If the essential element of free consent is missing in a contract, the law confers right on the aggrieved party either to reject the contract or to accept it. However, the contract continues to be good and enforceable unless it is repudiated by the aggrieved party.
4. Illegal contract: A contract is illegal if it is forbidden by law; or is of such nature that, if permitted, would defeat the provisions of any law or is fraudulent; or involves or implies injury to a person or property of another, or court regards it as immoral or opposed to public policy. These agreements are punishable by law. These are void-ab-initio.
“All illegal agreements are void agreements but all void agreements are not illegal.”
5. Unenforceable contract: Where a contract is good in substance but because of some technical defect cannot be enforced by law is called unenforceable contract. These contracts are neither void nor voidable.
On the basis of formation
1. Express contract: Where the terms of the contract are expressly agreed upon in words (written or spoken) at the time of formation, the contract is said to be express contract.
2. Implied contract: An implied contract is one which is inferred from the acts or conduct of the parties or from the circumstances of the cases. Where a proposal or acceptance is made otherwise than in words, promise is said to be implied.
3. Quasi contract: A quasi contract is created by law. Thus, quasi contracts are strictly not contracts as there is no intention of parties to enter into a contract. It is legal obligation which is imposed on a party who is required to perform it. A quasi contract is based on the principle that a person shall not be allowed to enrich himself at the expense of another.
On the basis of performance
1. Executed contract: An executed contract is one in which both the parties have performed their respective obligation.
2. Executory contract: An executory contract is one where one or both the parties to the contract have still to perform their obligations in future. Thus, a contract which is partially performed or wholly unperformed is termed as executory contract.
3. Unilateral contract: A unilateral contract is one in which only one party has to perform his obligation at the time of the formation of the contract, the other party having fulfilled his obligation at the time of the contract or before the contract comes into existence.
4. Bilateral contract: A bilateral contract is one in which the obligation on both the parties to the contract is outstanding at the time of the formation of the contract. Bilateral contracts are also known as contracts with executory consideration.
29th August 2012 From India, Kumbakonam
Ex Parte
Ex Parte is a Latin word which means "On One Side Only".
The phrase Ex Parte that generally refers to action taken without notice to the adverse party or participation by that party in the hearing. When the phrase is used in the title of a case (e .g., Ex parte Young, 1908) it indicates that the action was taken on behalf of the person named in the case's caption.
8th February 2013 From India, Kumbakonam
Ex Parte is a Latin word which means "On One Side Only".
The phrase Ex Parte that generally refers to action taken without notice to the adverse party or participation by that party in the hearing. When the phrase is used in the title of a case (e .g., Ex parte Young, 1908) it indicates that the action was taken on behalf of the person named in the case's caption.
8th February 2013 From India, Kumbakonam
Tort
Tort means an act needs to be performed which is not performed or an omission not to be performed which is performed causes any injury.
In simple way we can understand "If a person blocking the road which is meant for public usage is tort. If the easement of the person is denied, then it is known as tort.
As per wikipedia
A tort, in common law jurisdictions, is a civil wrong[1] which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act, called a tortfeasor. Although crimes may be torts, the cause of legal action is not necessarily a crime as the harm may be due to negligence. The victim of the harm can recover their loss as damages in a lawsuit. In order to prevail (win), the plaintiff (person suing) in the lawsuit must show that the actions or lack of action was the legally recognizable cause of the harm. The equivalent of tort in civil law jurisdictions is delict.
Legal injuries are not limited to physical injuries and may include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. Torts comprise such varied topics as auto accidents, false imprisonment, defamation, product liability, copyright infringement, and environmental pollution (toxic torts). While many torts are the result of negligence, tort law also recognizes intentional torts, where a person has intentionally acted in a way that harms another, and in a few cases (particularly for product liability in the United States) "strict liability" which allows recovery without the need to demonstrate negligence.
Tort law is different from criminal law in that: (1) torts may be created due to negligent but not intentional and criminal actions and (2) tort lawsuits have a lower burden of proof such as preponderance of evidence rather than beyond a reasonable doubt. Sometimes a plaintiff may prevail (win) in a tort case even if the person who caused the harm ("the criminal") was acquitted in a criminal trial. For example, O.J. Simpson was acquitted in criminal court and later found liable for the tort of wrongful death.
3rd April 2013 From India, Kumbakonam
Tort means an act needs to be performed which is not performed or an omission not to be performed which is performed causes any injury.
In simple way we can understand "If a person blocking the road which is meant for public usage is tort. If the easement of the person is denied, then it is known as tort.
As per wikipedia
A tort, in common law jurisdictions, is a civil wrong[1] which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act, called a tortfeasor. Although crimes may be torts, the cause of legal action is not necessarily a crime as the harm may be due to negligence. The victim of the harm can recover their loss as damages in a lawsuit. In order to prevail (win), the plaintiff (person suing) in the lawsuit must show that the actions or lack of action was the legally recognizable cause of the harm. The equivalent of tort in civil law jurisdictions is delict.
Legal injuries are not limited to physical injuries and may include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. Torts comprise such varied topics as auto accidents, false imprisonment, defamation, product liability, copyright infringement, and environmental pollution (toxic torts). While many torts are the result of negligence, tort law also recognizes intentional torts, where a person has intentionally acted in a way that harms another, and in a few cases (particularly for product liability in the United States) "strict liability" which allows recovery without the need to demonstrate negligence.
Tort law is different from criminal law in that: (1) torts may be created due to negligent but not intentional and criminal actions and (2) tort lawsuits have a lower burden of proof such as preponderance of evidence rather than beyond a reasonable doubt. Sometimes a plaintiff may prevail (win) in a tort case even if the person who caused the harm ("the criminal") was acquitted in a criminal trial. For example, O.J. Simpson was acquitted in criminal court and later found liable for the tort of wrongful death.
3rd April 2013 From India, Kumbakonam
Mutatis Mutandis : It is a Latin phrase that means "by changing those things which need to be changed.” The phrase can also mean “having substituted new terms.” Mutatis mutandis relates to due alterations to be made in similar statements. For example, the phrase can be used in contract clauses such as, "The changes proposed for the first contract apply mutatis mutandis to all other contracts." Mutatis mutandis is used to gain a reader's attention to differences between a statement and a similar but different earlier statement. This phrase refers to matters that are generally same but can be altered according to need. Changes in similar statements will be regarding points in detail such as the name, title, and address of the parties.
In simple language we can tell it as "Due alteration, or changing whatever is required to be changed. In Latin for things being changed that ought to be changed".
10th October 2013 From India, Kumbakonam
In simple language we can tell it as "Due alteration, or changing whatever is required to be changed. In Latin for things being changed that ought to be changed".
10th October 2013 From India, Kumbakonam
Payment of Bonus
1. A person must have worked at least for 30 days in the Financial year.
2. Minimum Bonus Payable is 8.33% (Rs.3500).
3. Maximum Bonus Payable is 20% (Rs.8400).
4. The Bonus must be paid within 8 months on next Financial Year.
5. Rs.3500/- pm is the Maximum Salary/Wages can be considered for calculation of Bonus.
6. Those whose salary upto Rs.10000/- will be eligible to get Bonus.
7. If the person does not receive the Bonus within the Stipulated time period, then the intimation about Unclaimed Bonus must be sent to the Licencing Authority (Labour Inspector Office) and on completion of 3 Financial Year, the amount must be deposited with Labour Inspector Office or it should be spent on the welfare activities of the workers engaged in the industry.
27th October 2013 From India, Kumbakonam
1. A person must have worked at least for 30 days in the Financial year.
2. Minimum Bonus Payable is 8.33% (Rs.3500).
3. Maximum Bonus Payable is 20% (Rs.8400).
4. The Bonus must be paid within 8 months on next Financial Year.
5. Rs.3500/- pm is the Maximum Salary/Wages can be considered for calculation of Bonus.
6. Those whose salary upto Rs.10000/- will be eligible to get Bonus.
7. If the person does not receive the Bonus within the Stipulated time period, then the intimation about Unclaimed Bonus must be sent to the Licencing Authority (Labour Inspector Office) and on completion of 3 Financial Year, the amount must be deposited with Labour Inspector Office or it should be spent on the welfare activities of the workers engaged in the industry.
27th October 2013 From India, Kumbakonam
Quid Pro Quo
In normal usage, Quid Pro Quo means Getting something in exchange of something. In simple it means an exchange of goods or services, where one transfer is contingent upon the other. English speakers often use the term to mean "a favour for a favour"; phrases with similar meaning include: "give and take", "tit for tat".
In legal usage, quid pro quo indicates that an item or a service has been traded in return for something of value, usually when the propriety or equity of the transaction is in question. For example, under the common law, a binding contract must involve consideration: that is, the exchange of something of value for something else of economic value. In the United States, if the exchange appears excessively one sided, courts in some jurisdictions may question whether a quid pro quo did actually exist and the contract may be void by law.
Similarly, political donors are legally entitled to support candidates that hold positions with which the donors agree, or which will benefit the donors. Such conduct becomes bribery only when there is an identifiable exchange between the contribution and official acts, previous or subsequent, and the term quid pro quo denotes such an exchange. The term may also be used to describe blackmail, where a person offers to refrain from some harmful conduct in return for valuable consideration.
Quid pro quo harassment occurs when employment or academic decisions or expectations (hiring, promotions, salary increases, shift or work assignments, performance standards, grades, access to recommendations, assistance with school work, etc.) are based on an employee or student's submission to or rejection of sexual advances, requests for sexual favors, or other behaviour of a sexual nature. These cases involve tangible actions that adversely affect either the conditions of work or academic progress.
The Merriam Webster Dictionary explains in simple language as something that is given to you or done for you in return for something you have given to or done for someone else.
10th December 2013 From India, Kumbakonam
In normal usage, Quid Pro Quo means Getting something in exchange of something. In simple it means an exchange of goods or services, where one transfer is contingent upon the other. English speakers often use the term to mean "a favour for a favour"; phrases with similar meaning include: "give and take", "tit for tat".
In legal usage, quid pro quo indicates that an item or a service has been traded in return for something of value, usually when the propriety or equity of the transaction is in question. For example, under the common law, a binding contract must involve consideration: that is, the exchange of something of value for something else of economic value. In the United States, if the exchange appears excessively one sided, courts in some jurisdictions may question whether a quid pro quo did actually exist and the contract may be void by law.
Similarly, political donors are legally entitled to support candidates that hold positions with which the donors agree, or which will benefit the donors. Such conduct becomes bribery only when there is an identifiable exchange between the contribution and official acts, previous or subsequent, and the term quid pro quo denotes such an exchange. The term may also be used to describe blackmail, where a person offers to refrain from some harmful conduct in return for valuable consideration.
Quid pro quo harassment occurs when employment or academic decisions or expectations (hiring, promotions, salary increases, shift or work assignments, performance standards, grades, access to recommendations, assistance with school work, etc.) are based on an employee or student's submission to or rejection of sexual advances, requests for sexual favors, or other behaviour of a sexual nature. These cases involve tangible actions that adversely affect either the conditions of work or academic progress.
The Merriam Webster Dictionary explains in simple language as something that is given to you or done for you in return for something you have given to or done for someone else.
10th December 2013 From India, Kumbakonam
In any case if someone filed a case and if either one party does not turn for attending the case, what will be condition of the case?
This question was asked by a friend.
The reply is
If the Petitioner / Complainant does not attend the hearing and absented himself from court proceedings then the case will get dismissed.
If the Respondent / Defendant does not attend the hearing and absented without any information then the case will be decreed Ex-Parte.
10th October 2015 From India, Kumbakonam
This question was asked by a friend.
The reply is
If the Petitioner / Complainant does not attend the hearing and absented himself from court proceedings then the case will get dismissed.
If the Respondent / Defendant does not attend the hearing and absented without any information then the case will be decreed Ex-Parte.
10th October 2015 From India, Kumbakonam
Section 173 of Code of Criminal Procedure.
A Magistrate empowered to take cognisance of an offence, can call for the detailed Investigation Report from the Police Department. The Concerned Police Officer will have to submit the Detailed Investigation Report to the Magistrate ordered to investigate, for further lodging a case against the Respondent.
If the complainant is falsifying the records produced and the same is brought in the limelight then the Magistrate will not file any case. But if the Defendant found guilty as per the Police Investigation report, then the police officer has to file the FIR and can effect the arrest.
The Act Says
Section 173 in The Code Of Criminal Procedure, 1973
173. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report-
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).
20th October 2015 From India, Kumbakonam
A Magistrate empowered to take cognisance of an offence, can call for the detailed Investigation Report from the Police Department. The Concerned Police Officer will have to submit the Detailed Investigation Report to the Magistrate ordered to investigate, for further lodging a case against the Respondent.
If the complainant is falsifying the records produced and the same is brought in the limelight then the Magistrate will not file any case. But if the Defendant found guilty as per the Police Investigation report, then the police officer has to file the FIR and can effect the arrest.
The Act Says
Section 173 in The Code Of Criminal Procedure, 1973
173. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report-
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).
20th October 2015 From India, Kumbakonam
Kidnapping Vs Abduction
In criminal law, kidnapping is the unlawful taking away or transportation of a person against that person's will, usually to hold the person unlawfully. This may be done for ransom or in furtherance of another crime, or in connection with a child custody dispute.
In simple English, if a male below 16 years and female below 18 years transported without the consent of the person or his/her guardian, then it is kidnapping. If a person above the age of 18 years then it is known as Abduction.
14th June 2016 From India, Kumbakonam
In criminal law, kidnapping is the unlawful taking away or transportation of a person against that person's will, usually to hold the person unlawfully. This may be done for ransom or in furtherance of another crime, or in connection with a child custody dispute.
In simple English, if a male below 16 years and female below 18 years transported without the consent of the person or his/her guardian, then it is kidnapping. If a person above the age of 18 years then it is known as Abduction.
14th June 2016 From India, Kumbakonam
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